June 15, 2012
JACK BENNY JONES, JR., APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2012
Before Judges Reisner and Hayden.
Jack Benny Jones, while an inmate at Bayside State Prison (BSP), was found guilty of a disciplinary infraction for committing prohibited act *.202, possession of a weapon in violation of N.J.A.C. 10A:4-4.1(a). He appeals the decision and sanction imposed by the Department of Corrections (DOC). Having thoroughly considered the record before us, we affirm.
The record reveals that on May 28, 2011, the prison nurse on duty at the BSP Medical Center found a note stating that the inmates in D-unit were sharpening shanks and hiding them in lockers. During a search of the D-unit, Senior Correction Officer (SCO) Perez found an open razor blade attached to an ink pen taped to the lining of Jones' footlocker. The officers photographed and confiscated the instrument, charged Jones with disciplinary infraction *.202, possession of a weapon, such as, but not limited to, a sharpened instrument, and placed him in pre-hearing detention. The search also disclosed an incendiary device in another cell and a sharpened instrument in the common area.
The hearing, originally scheduled for May 31, 2011, was postponed to allow Jones time to request a polygraph and on the adjourned date, June 2, 2011, the hearing was again adjourned for the same reason. The polygraph request was denied and the hearing was rescheduled for June 3 but was postponed for the hearing officer to get a statement from the Special Investigations Division (SID) about an investigation concerning another inmate. After SID provided a brief statement, the hearing was held and completed on June 6, 2011.
At the first scheduled hearing, Hearing Officer MoralesPitre presided. At all subsequent hearings, Hearing Officer DiBennedetto presided. Both hearing officers were members of the DOC central office staff.
At Jones' request, he was provided with the assistance of a counsel substitute. At the hearing Jones made a statement denying that he ever had a razor, arguing that he had never had a weapons charge and did not shave. His counsel substitute argued that Jones had been set up because he had been interviewed by SID concerning another inmate the week before the search and did not provide the requested information. The counsel substitute also contended that someone had told Jones that an officer said he had put the shank in Jones' locker. Jones was given the opportunity, but declined, to confront the witnesses against him. Jones produced the statement of his cellmate who stated that Jones never had a razor.
In a written report, Hearing Officer DiBenedetto found Jones guilty, based upon Perez's written report of the search, the photo of the contraband, and Jones' failure to produce evidence that he was set up by an unnamed corrections officer, and imposed disciplinary sanctions. On June 6, 2011, Jones filed an administrative appeal. On June 9, 2011, the Assistant Superintendent upheld the hearing officer's decision and denied Jones' request for leniency. This appeal followed.
On appeal, Jones raises the following contentions.
POINT ONE - THE INVESTIGATOR AND HEARING OFFICER FAILED TO PROPERLY INVESTIGATE THE CHARGES IN VIOLATION OF THE PLAINTIFF'S CONSTITUTIONAL RIGHTS.
POINT TWO - APPELLANT WAS ENTITLED TO A POLYGRAPH EXAMINATION.
POINT THREE - THE H[EARING] O[FFICER] RELIED ON INSUFFICIENT EVIDENCE TO FIND PLAINTIFF GUILTY.
POINT FOUR - THE DEPARTMENT OF CORRECTIONS (DOC) VIOLATED APPELLANT'S DUE PROCESS RIGHTS WHEN A DIFFERENT H[EARING] O[FFICER] WAS APPOINTED AT THE SECOND HEARING.
POINT FIVE - THE APPELLANT WAS DENIED CROSS EXAMINATION AND CONFRONTATION BY THE H[EARING] O[FFICER] IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS.
POINT SIX - COUNSEL SUBSTITUTE FAILED TO PROPERLY PREPARE A DEFENSE AND FELL BELOW ADEQUATE COUNSEL IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS.
Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable, or not supported by substantial credible evidence in the record as a whole. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (citations omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
The DOC has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Furthermore, as we have previously noted, "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).
Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Nonetheless, prisoners are entitled to certain limited due process protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff, a limited right to call witnesses, the assistance of counsel substitute, and a right to a written statement of evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995). We note that Jones was afforded all these recognized rights that an inmate facing disciplinary charges was entitled to receive.
"A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Gas & Elec. Co., 35 N.J. 358, 377 (1961).
Based upon our review of the record, we reject as without merit Jones' argument that the hearing officer's determination was not based upon substantial credible evidence on the record. We have carefully considered each of Jones' contentions in light of the applicable law and find that none of them has sufficient merit to warrant extended discussion in this written opinion.
R. 2:11-3(e)(1)(E). We add only the following comments.
We are satisfied that the record contains sufficient and substantial evidence that was more than adequate to support the agency's findings. Moreover, the hearing officer's written decision indicates that defendant was offered the opportunity to confront any witnesses against him and declined. In his administrative appeal, Jones failed to claim that this statement was incorrect, which suggests that he agreed with it at that time. Further, the hearing officer's report indicates that her decision was based on consideration of all the evidence. We find defendant has not demonstrated any denial of due process merely because the hearing officer was not the hearing officer at the first hearing when an adjournment was requested.
Jones also claims that he had a right to a polygraph examination. We disagree. The initial decision whether to subject an inmate to a polygraph examination rests with the prison administrator, in instances when "there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge, or . . . [a]s part of a reinvestigation of a disciplinary charge." N.J.A.C. 10A:3-7.1(a). A polygraph examination is "clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez, supra, 382 N.J. Super. at 23-23. Only when denial of the examination would compromise the fundamental fairness of the disciplinary process should the request be granted. Id. at 20. Fundamental fairness may be implicated when there is evidence of "inconsistencies in the [correction officer's] statement or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf." Id. at 24.
We find no serious question of credibility or denial of fundamental fairness that gave Jones a right to a polygraph examination. Jones did not cross-examine SCO Perez or present any evidence that corroborated his claim that an unnamed officer planted the shank in his cell. Moreover, there were no inconsistencies in SCO Perez's statement, which was corroborated by the photograph of the shank and the anonymous note found by the nurse. Additionally, the entire unit, not just Jones' cell, was searched and other contraband was found.
Because the record contains substantial evidence to support the findings of the DOC, we must defer. Henry, supra, 81 N.J. at 579-80. Thus, we find that the agency's decision was not arbitrary or capricious.
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