On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 28, 2012
Before Judges Axelrad and Ostrer.
Al-Quaddim Sayles, an inmate at Northern State Prison, appeals from a final determination of the Department of Corrections (DOC) that he violated *.009, possession of an electronic communications device, namely a cell phone, as set forth in N.J.A.C. 10A:4-4.1.*fn1 The hearing officer imposed 15 days of detention, 365 days of administrative segregation, 365 days loss of commutation time, 180 days loss of telephone privileges, and a permanent loss of contact visits. Following an administrative appeal, an assistant superintendent upheld the decision of the hearing officer. Appellant then filed an appeal of the agency's decision.
Appellant argues: (1) he was improperly denied a polygraph examination; (2) counsel-substitute was ineffective; (3) there was not substantial evidence in the record to sustain the charges; (4) his liberty interests were infringed by the conduct of the officers barging in on him while he was on the toilet; and (5) his due process was violated by the DOC's delay in deciding his administrative appeal and in deviating from N.J.A.C. 10A:4-11.4(b)'s conflict-of-interest safeguards for disciplinary reinvestigations. We reject appellant's arguments and affirm.
The charges arose from an incident on March 6, 2011, when Sergeant Rafael Rodriguez and Corrections Officer Recruit (COR) Jose Silva were conducting a routine tour of appellant's dormitory. According to both officers, as they entered the room, they overheard appellant conversing with someone while seated on a toilet behind a curtain. They pulled back the curtain and observed appellant with a cell phone in his hand, which he promptly flushed down the toilet.
Appellant was charged with the offense, and received notice of the charges on March 7, 2011. Appellant was assigned counsel-substitute. The hearing was held on March 28, 2011, after having been adjourned several times to obtain a witness statement and because appellant requested to confront the officers. Appellant's request for a polygraph examination was administratively denied with the explanation that the hearing officer could address any credibility issues.
At the hearing, appellant relied on his prior written statement that he was using the toilet when inmates on the wing announced an early head count, and when the officers entered the bathroom they simply heard him cursing to himself in displeasure. According to appellant, before he could finish wiping himself properly, Sgt. Rodriguez entered the stall and directed him to get up and put his hands on the wall. Appellant denied he was in possession of "any contraband." Appellant also relied on inmate Level Burnett's statement that appellant was praying and when appellant did not respond to the sergeant's inquiry of what he was doing, he was locked up. The hearing officer permitted appellant to confront Sgt. Rodriguez and COR Silva by submitting a list of written questions, which the hearing officer then posed to the officers.
The hearing officer found appellant guilty of the charge, noting appellant neither presented any evidence to refute the officers' reports, nor did he do so by his confrontation. Appellant promptly filed an administrative appeal, contending the confrontation answers from the officers were inconsistent, the introduction of the officers' reports as the sole evidence rendered the proceedings fundamentally unfair and violated his due process rights, and the decision was not supported by substantial evidence.
On April 11, 2011, the administrative superintendent upheld the hearing officer's decision, explaining that all procedural safeguards were provided, the hearing officer's decision was based upon substantial evidence, and the sanction was proportionate to the offense. This appeal ensued.
We reject appellant's argument that he was denied due process because he did not receive the polygraph examination he requested. An inmate's mere request for a polygraph examination shall not be sufficient cause, in and of itself, for granting the request. Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997); N.J.A.C. 10A:3-7.1(c). In addition, a polygraph examination is clearly not required on every occasion that an inmate denies the disciplinary charge against him, but rather the request should be granted "when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 20, 23-24 (App. Div. 2005). Impairment of fundamental fairness may be evidenced by inconsistencies in the officers' statements or a statement by another inmate on the inmate's behalf, but "will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility." Id. at 24.
In appellant's case, the record does not show any issues of credibility that could not have been determined at a disciplinary hearing. Appellant submitted his own statement and submitted a statement by another inmate. He also requested and received confrontation of the officers. Thus, the absence of a polygraph examination did not compromise the fundamental fairness of the disciplinary process.
Appellant was provided with counsel-substitute. See N.J.A.C. 10A:4-9.12(a) (providing that inmates who are charged with an asterisk offense may request representation by counsel-substitute). According to appellant, counsel-substitute was ineffective because he failed to object to the officers viewing appellant's questions before cross-examination and failed to advise appellant of his right to postpone confrontation until he received an answer on the polygraph request. The record, however, does not support appellant's contention that the officers viewed his questions prior to ...