KAMAL ABDUL-MAALIK v. DEPARTMENT OF CORRECTIONS

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6277-05T26277-05T2

KAMAL ABDUL-MAALIK,

Appellant,

DEPARTMENT OF CORRECTIONS,

Respondent.

____________________________________________________________

Submitted March 6, 2007 - Decided March 28, 2007

Before Judges Axelrad and R. B. Coleman.

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

Kamal Abdul-Maalik, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Michael Haas, Assistant Attorney General, of counsel; Sean M. Gorman, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Kamal Abdul-Maalik appeals from a Final Agency Decision of the Department of Corrections (DOC) finding him guilty of committing Prohibited Act *.009, misuse or possession of electronic equipment not authorized for use or retention by an inmate such as, but not limited to, a cellular telephone, a two-way radio, other communication devices and other computers and/or related devices and peripherals. We reverse and remand.

On or about June 8, 2006, at Bayside State Prison in Leesburg, Abdul-Maalik's cellmate, inmate Otis Moore, was observed by a corrections officer fumbling with something in his hand. Upon further investigation, the officer found a cellular phone hidden in an instant soup cup in the cell. Thereafter, the cell was searched and the light fixtures near both bunks were found to have been altered to conceal items. The light fixture closest to inmate Moore's bunk concealed a cellular phone charger. Because the light fixture closer to inmate Abdul-Maalik's bunk, though empty, had been similarly altered, both inmates were charged with possession of electronic equipment not authorized, in violation of *.009.

Moore admitted that he possessed the prohibited items and pled guilty to the charge brought against him. Abdul-Maalik pled not guilty and stated "it [the charger] is not mine; I never used it; I did not know of it. Celly [cellmate] takes full responsibility. I request a polygraph." The request for a polygraph was denied.

The hearing officer determined that Abdul-Maalik's claim that he had no knowledge of the cellular phone and charger was unreliable. The hearing officer reasoned that "it is most probable that this phone was being utilized in the morning and early morning hours when both INS [inmates] are in their cell." He further noted that Abdul-Maalik "had to know of the phone's/charger's existence/use (this would justify a *.803/.009 [charge] which carries the same penalty as a *.009 and has the same security concern)." The hearing officer found Abdul-Maalik guilty of Prohibited Act *.009, and imposed sanctions of fifteen days of disciplinary detention, 180 days of administrative segregation, 180 days loss of commutation time and 365 days of loss of contact visits. The decision and sanction of the hearing officer were upheld by Assistant Superintendent Andrea Kinchen, who added that "[t]here is no violation of standards or misinterpretation of the facts."

On appeal, Abdul-Maalik contends that the denial of his request for a polygraph and the finding that he was guilty deprived him of due process, inasmuch as the determination was not based on sufficient evidence in the record. While we do not premise our decision on due process grounds, we agree that the evidence was insufficient to support the decision and, therefore, we reverse and remand this matter for further proceedings.

At the outset, we acknowledge the limited scope of our review. Only where an agency's decision is arbitrary or capricious or unsupported by credible evidence in the record may it be reversed. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). Unless a court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed. In re Taylor, 158 N.J. 644, 657 (1999); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div.), aff'd, 107 N.J. 355 (1987). However, an adjudication of guilt of an infraction must be supported by "substantial" evidence. McDonald v. Pinchak, 139 N.J. 188 (1995); Jacobs v. Stephens, 139 N.J. 212 (1995); Avant v. Clifford, 67 N.J. 496 (1975); codified at N.J.A.C. 10A:4-9.15(a). As explained in In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion."

We also recognize that an inmate's mere request for a polygraph examination is not sufficient cause, in and of itself, for granting the request. Johnson v. Dep't of Corrections, 298 N.J. Super. 79, 83 (App. Div. 1997). A polygraph is not required every time that an inmate denies a disciplinary charge against him. Ramirez v. Dep't of Corrections, 382 N.J. Super. 18, 23-24 (App. Div. 2005). However, an inmate's "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." Id. at 20.

The impairment of fundamental fairness was described in Ramirez to include "extrinsic evidence involving credibility, whether documentary or testimonial, such as, a statement by another inmate." Id. at 24. Inmate Moore's acceptance of responsibility for the charged offenses is extrinsic evidence relating to the credibility of both cellmates. In his statement, Moore wrote, "Inmate Kamal Abdul-Maalik had nothing to do with the charger or the phone, he didn't even know I had a phone. And I never seen him tamper with the electric box." In the face of Moore's statement, we cannot agree with the hearing officer's conclusion that "the evidence incriminated IM [Abdul-] Maalik beyond a reasonable doubt."

At the very least, Moore's statement, together with Abdul-Maalik's categorical denial - "I never misuse[d] any electronic equipment. I was only their [sic] for a couple of weeks. I was not in possession of any charger nor any phone. My bunky informed the officers of this" - made the request for the polygraph of the accused more compelling, as a matter of fundamental fairness. Taking a polygraph was likely the only other way, beyond denials by both inmates, that Abdul-Maalik could have rebutted the permissible inference of knowledge and/or joint possession of the forbidden items. The inference was based on little more than the fact that Abdul-Maalik was one of the occupants of the cell where the items were found and one of the tampered electric box was near his bed. It was not based on anyone's observation of Abdul-Maalik handling the prohibited items, nor even on anyone's observation of Moore handling them in Abdul-Maalik's presence. Rather, the hearing officer merely surmised that "it is most probable that this phone was utilized in the evening and early morning when both IMS [inmates] are in the cell." There is no substantial evidence in the record to support that conclusion.

In view of the absence of any direct evidence, and the cellmate's acceptance of full responsibility for possession of the prohibited devices, and because Abdul-Maalik could not negate the inference of knowledge and/or joint possession of the forbidden items through any other means, fundamental fairness dictates that he should have been permitted to take a polygraph. Under these particular circumstances, we remand this matter for either a polygraph examination or, if the DOC elects not to administer a polygraph examination, for a dismissal of the charges. If Abdul-Maalik takes the polygraph and his veracity is not sustained by the test, the decision of the DOC would be reinstated.

Reversed and remanded.

(continued)

A-6277-05T2

March 28, 2007