PETER G. REPOLI, JR. v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0702-04T10702-04T1

PETER G. REPOLI, JR.,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent-Respondent.

____________________________________

 

Submitted January 25, 2006 - Decided July 17, 2006

Before Judges Wefing and Wecker.

On appeal from a final agency decision

of the New Jersey Department of Corrections.

Peter G. Repoli, Jr., appellant pro se.

Nancy Kaplen, Acting Attorney General,

attorney for respondent (Patrick DeAlmeida,

Assistant Attorney General, of counsel;

Thomas E. Kemble, Deputy Attorney General,

on the brief).

PER CURIAM

Petitioner, Peter G. Repoli, Jr., appeals from a final agency decision upholding a prison disciplinary adjudication finding him guilty of an asterisk offense, *.202, "possession or introduction of a weapon, such as . . . a sharpened instrument, knife, or unauthorized tool," in violation of N.J.A.C. 10A:4-4.1. Petitioner received fifteen days of detention, 300 days loss of commutation time, and 300 days of administrative segregation as a sanction.

In a routine search of inmates' cells on August 25, 2004, Senior Corrections Officer T. Meyers found a sharpened four-inch long metal object in petitioner's cell. More specifically, the officer reported that he found the object taped to the footrest of the top bunk of the cell, which was petitioner's bed. The officer also reported that the object was taped to the side of the footrest facing the wall, where it could not readily be seen. Petitioner was in the law library at the time of the search. When confronted with the charge, he denied any knowledge of the object. He requested a polygraph examination, but received no response to that request.

At his first hearing before Hearing Officer Norma Morales, petitioner had the assistance of a counsel substitute. The hearing officer relied upon the report of Officer Meyers and rejected petitioner's denial that the object was his or that he knew of the presence of the object. The determination was upheld on petitioner's administrative appeal.

Within days of the date petitioner filed his notice of appeal with this court, Chief Hearing Officer Gary T. Sheppard granted petitioner a rehearing.

By that time, petitioner had been moved to another prison site, and the rehearing before Hearing Officer Gwendolyn Nolley was conducted by videoconference. At the start of that proceeding, however, petitioner declined to participate, stating that he chose to rely on this appeal instead. The hearing continued in his absence, and he was again found guilty of the *.202 violation.

A troubling aspect of this matter is that, as respondent admits, "it can find no record of a response to Repoli's request for a polygraph examination." Assuming that Officer Meyers did find the sharpened metal object where he claimed to have found it, taped to a hidden area of petitioner's bed, evidence that petitioner had placed it there, that is, that he knowingly, constructively possessed that object, was circumstantial. Petitioner claimed that his cell was not locked, and that others could have had access to the area and placed the object there. He also claimed that he was not getting along with his cellmate at the time. The cellmate was not charged with possession of this object.

The scope of our review of a prison disciplinary matter is limited. A presumption of validity attaches to an administrative agency's decision and is overcome only if the decision is arbitrary, capricious, or unreasonable, or is not supported by substantial credible evidence. See, e.g., Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997); Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000); Taylor v. Beyer, 265 N.J. Super. 345, 348 (App. Div. 1993). The evidence was sufficient to support the hearing officer's conclusion; it was reasonable to conclude that the occupant of the bed to which the object was taped was its possessor.

Here, petitioner decided to forego the opportunity to appear before a new hearing officer and avail himself of the opportunity for a fresh appraisal of his own credibility. In that light, and despite our concern that petitioner's request for a polygraph, which might have provided credible support for his denial of knowledge of the object, was not answered, we are persuaded that there is no basis for our intervention. Unlike the circumstances in Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005), and Engel v. New Jersey Department of Corrections, 270 N.J. Super. 176, 178 (App. Div. 1994), we are not persuaded that the failure to respond to plaintiff's request, or the failure to provide him with the opportunity to take a polygraph test, infringed on his due process rights or implicated fundamental fairness. Petitioner received all of the procedural and substantive due process to which he was entitled. See generally Avant v. Clifford, 67 N.J. 496 (1975); see also Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995).

 
Affirmed.

(continued)

(continued)

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A-0702-04T1

July 17, 2006