MARK PRITCHETT v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4663-05T24663-05T2

MARK PRITCHETT,

Petitioner-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent-Respondent.

__________________________________

 

Submitted December 4, 2006 - Decided December 26, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from a Final Decision of the Department of Corrections.

Mark Pritchett, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner, an inmate currently confined to South Woods State Prison in Bridgeton, appeals from a determination of the Department of Corrections (Department) finding him guilty of committing prohibited act *.011 (possession or exhibition of anything related to a security threat) in violation of N.J.A.C. 10A:4-4.1(a).

On February 28, 2006, at approximately 8:45 a.m., while being moved from 5-1-RI to 5-2-LI, petitioner's property was searched by State Corrections Officer (SCO) M. Fogg, who found a letter referencing the "Five Percenters," a security threat group (STG), in petitioner's mail. Petitioner was charged and an investigation followed. Petitioner declined to make a statement or mention any witnesses. The initial hearing scheduled for March 3, 2006, was postponed to obtain a mental health evaluation of petitioner. The next hearing, scheduled for March 6 was adjourned to obtain an evaluation of the seized material by the Special Investigations Division. The March 8 hearing was postponed because petitioner requested a polygraph. The request was denied on March 23, 2006, by Administrator MacFarland who concluded that there was no issue of credibility because the material was found in petitioner's mail, and petitioner did not make a statement to the investigating Sergeant Trovato. Senior Investigator Edward V. Soltys examined the seized material and determined that the material was related to the Five Percenters, a recognized STG. The hearing was completed on March 27, 2006.

At the hearing, petitioner claimed to be a "Blood" and that he would have no reason to have Five Percent papers. He asserted that he was targeted, that he did not belong to that gang. Counsel substitute maintained that petitioner had a problem in the past with SCO Fogg, petitioner was innocent, and he was never investigated to see if he had a Five Percent background. Based upon Fogg's, Trovato's, and Soltys' reports, Hearing Officer Kathy Ireland found petitioner guilty of *.011 and imposed sixty days' loss of commutation credit, ninety days administrative segregation, which was suspended for sixty days, and confiscation of the STG material. On March 31, 2006, Associate Administrator Karen Balicki, upheld Hearing Officer Ireland's decision.

On appeal, petitioner contends for the first time, that he was denied due process because (1) the hearing officer failed to consider that the STG material found was a "joint constructive possession" found in a common area within a double occupancy cell, (2) his counsel substitute did not raise the claim that petitioner did not receive the disciplinary charge within forty-eight hours, and (3) the material seized does not constitute STG material. He also contends that his request for a polygraph should have been granted.

"Normally, we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ." Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Exceptions include when "the issue is of special significance to the litigant, to the public, or to the achievement of substantial justice, and the record is sufficiently complete to permit its adjudication." Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 216 (App. Div. 2000). Another exception is when the questions "'raised on appeal go to the jurisdiction of the trial court.'" Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 501 (App. Div.) (quoting Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div.), certif. denied, 102 N.J. 303 (1985)), certif. denied, 162 N.J. 131 (1999). These exceptions are not triggered here.

Nevertheless, initially we note that petitioner concedes that he was served with the disciplinary report of March 1. The record confirms that L. Bernstein served petitioner with the disciplinary charge on that date. Apparently, petitioner mistakenly believed that the month of February had more than twenty-eight days. Likewise misplaced is petitioner's contention that the material did not belong to him. In his appellate brief, he concedes that he gave SCO Fogg his mail because Fogg was looking for cigarettes.

Under the circumstances presented here, petitioner did not have the right to a polygraph test. See Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 81-83 (App. Div. 1997); N.J.A.C. 10A:3-7.1(c) ("An inmate's request for a polygraph examination shall not be sufficient cause for granting the request."). Petitioner did not demonstrate that an issue of credibility existed. He failed to give a statement to the investigating officer, he called no witnesses, and he declined the opportunity to confront SCO Fogg. In short, there was no evidence inconsistent with that presented in the investigating reports. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 25-26 (App. Div. 2005).

 
We are satisfied from our review of the entire record that the decision of the Department is supported by substantial credible evidence in the administrative record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Moreover, petitioner was accorded the appropriate safeguards and protections during the procedure in accordance with Avant v. Clifford, 67 N.J. 496, 522-30 (1975).

Affirmed.

(continued)

(continued)

5

A-4663-05T2

December 26, 2006