WILLIAM TUCKER 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NOT FOR PUBLICATION WITHOUT THE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-3093-04T53093-04T5

WILLIAM TUCKER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________

 

Submitted January 19, 2006 - Decided February 2, 2006

Before Judges Conley and Winkelstein.

On appeal from the Department of Corrections.

William Tucker, appellant pro se.

Nancy Kaplen, Acting Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Lisa A. Puglisi, Deputy Attorney General, on the letter-brief).

PER CURIAM

Appellant, currently an inmate at the New Jersey State Prison in Trenton, appeals a final decision of the Department of Corrections adjudicating him guilty of N.J.A.C. 10A:4-4.1(a)*.306, "conduct which disrupts or interferes with the security or orderly running of the correctional facility." The charge arose from an outbreak in the dayroom of the Bayside State Prison in Leesburg, where appellant was then incarcerated, involving a number of prisoners and resulting in injuries to at least twenty responding corrections officers. Twenty-seven inmates were involved, either as direct assaulters, or by refusing to comply with orders to return to their bunks. As each of these inmates was restrained, he was taken to the infirmary to ascertain his identity and whether any injuries had been sustained. Appellant was one of the twenty-seven.

On appeal, appellant contends:

POINT I: THE APPELLANT WAS DENIED HIS DUE PROCESS RIGHTS BY (a) THE DENIAL OF CONFRONTATION AND CROSS-EXAMINATION (b) THE ADJUDICATION OF THE CHARGE WITHOUT APPELLANT'S PRESENCE AND WHILE THE MATTER WAS POSTPONED FOR FURTHER INVESTIGATION [OF] THE RECORD; AND (c) THE DENIAL OF APPELLANT'S REQUEST FOR A POLYGRAPH EXAMINATION AND AS A RESULT THIS MATTER SHOULD BE REVERSED.

POINT II: THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON SUBSTANTIAL AND CREDIBLE EVIDENCE THAT THE APPELLANT HAD COMMITTED A PROHIBITED ACT OF CONDUCT WHICH DISRUPTS AS REQUIRED BY N.J.A.C. 10A:4-9.15(a).

We have considered these contentions in light of the record and applicable law. They are of insufficient merit to warrant further opinion. R. 2:11-3(e)(1)(D),(E). We add only that the adjudication report, the accuracy to which counsel substitute attested to, plainly reveals that while confrontation and cross-examination were offered, they were "declined." And, as to the polygraph, the record contains no written consent as required by N.J.A.C. 10A:3-7.5(b). Further, appellant chose not to testify, did not offer any witnesses on his behalf and has failed to show any inconsistencies in the investigative reports. Thus, even had appellant properly requested a polygraph, a denial of that request would not have "negated the fundamental fairness of the disciplinary proceeding[s] . . . ." Ramirez v. N.J. Dep't of Corr., ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 10). See also 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).

 
Affirmed.

(continued)

(continued)

3

A-3093-04T5

February 2, 2006