On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010
Before Judges Baxter and Newman.
Appellant Earl Smith appeals from the final decision by the Assistant Superintendent at East Jersey State Prison upholding the hearing officer's finding of the inmate's guilt of disciplinary infraction .254, "refusing to work, or to accept a program or housing unit assignment" in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
The relevant facts are straightforward. On April 10, 2009, Senior Corrections Officer Christopher ordered appellant to move from cell number 115 on Bravo Wing to cell number 100, where he would be double-bunked. Appellant refused to move, indicating he wanted to be single-bunked. He admitted that he refused to accept his new housing assignment. One of appellant's witness's statements noted that appellant declined the housing assignment.
On appeal, appellant argues that his hearing was untimely, violating his due process rights; his extended pre-hearing detention placement constituted cruel and unusual punishment; the investigator and hearing officer failed to properly investigate the charge against him in violation of his constitutional rights; his polygraph examination request was improperly denied; insufficient evidence existed to support a finding of his guilt; and the tape recording of all disciplinary hearings should be mandated.
Our detailed review of the record and consideration of the arguments made in the briefs satisfies us "that the decision of [the] administrative agency is supported by sufficient credible evidence on the record as a whole" and "the arguments made are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(D), (E). We add, however, these brief comments.
The delay in the hearing was largely occasioned by appellant's request for the need to prepare a defense with substitute counsel, a polygraph examination request, and the delays related to effectuating appellant's confrontation requests. The only delay not attributable to appellant was occasioned by the fact that the hearing officer who began the confrontation process was on vacation when the hearing was to be resumed and it was necessary that the hearing be postponed because, by reason of department policy, the hearing officer who began the process was required to complete it.
Appellant's contentions that there was a failure to properly investigate the incident; that the polygraph examination was improperly denied; and that the evidence presented could not support the guilty finding in the adjudication hearing are simply not anchored to the facts. Here, appellant admitted the violation of resisting the order to move because he desired to remain in a single cell. Credibility was not even an issue on this admitted violation.
With regard to the request that administrative hearings be tape-recorded, McDonald v. Pinchak, 139 N.J. 188, 201-02 (1995), rejected the request for a requirement that adjudicatory hearings in prisons be tape-recorded.
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