JAMES TOY v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3291-06T33291-06T3

JAMES TOY,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________

 

Submitted January 28, 2008 - Decided

Before Judges Lintner and Alvarez.

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

James Toy, appellant pro se.

Anne Milgram, Attorney General, attorney

for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Dewan N. Arefin, Deputy Attorney General, on the brief).

PER CURIAM

James Toy, an inmate currently confined at South Woods State Prison, appeals from a determination of the Department of Corrections (Department), finding him guilty of committing prohibited act *.010 (participating in an activity related to a security threat group), N.J.A.C. 10A:4-4.1(a). The Department imposed a sanction of fifteen-days detention, 180-days administrative segregation, and 180-days loss of commutation time. On appeal, Toy contends:

POINT I

APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN HEARING OFFICER KATHY IRELAND REFUSED TO HONOR APPELLANT'S REQUEST TO OBTAIN THE YAWM AL JUMAU'AH, TALEEM, RAMADHAN AND EID [ISLAMIC FUNCTION ATTENDANCE] RECORDS AS WELL AS A SPECIAL [FORM] FROM THE IMAM OF BAYSIDE STATE PRISON,[THE PRISON FROM WHICH HE WAS TRANSFERRED.]

POINT II

APPELLANT'S REQUEST FOR A POLYGRAPH EXAMINATION SHOULD HAVE BEEN GRANTED UNDER THE UNIQUE CIRCUMSTANCES PRESENTED IN THIS MATTER AND NOT TO GRANT HIS REQUEST AMOUNTED TO A TOTAL MISCARRIAGE OF JUSTICE.

An anonymous note (the Blood note) boldly printed in capital letters was discovered on a carbon copy of an Inmate Request System and Ready Form stating, "BLOOD LOVE We Will Kill C.O.s WE HATE YOU BITCHES SOON!" It was determined by R. Easely, a Senior Investigator with the Special Investigation Division (SID), that the Blood note was a gang related security threat referencing a phrase commonly used by the Bloods gang. On a second carbon page of the form were words written in script, which included the greeting, "hey Virgie," and signed, "Love You Virgie," and requesting money be sent to the inmate using Toy's inmate numbers. Virgie is identified as Toy's emergency contact. On the request to Virgie carbon was an imprint matching the words printed in the Blood note. The Sid investigation thus concluded that Toy was the author of the Blood note.

The charges were delivered to Toy on January 24, 2007. Toy pled not guilty and requested assistance of counsel substitute. The first hearing scheduled for January 26, 2007, was postponed to allow time for a SID report. At the January 29, 2007, hearing, Toy claimed he was not a gang member, is a Muslim, and that the gang killed his little brother. He denied writing the Blood note, asserting that he had written a letter to his sister on top of the request form and it must have gone through to the carbon. He maintained that the forms are put back in the box in the dayroom and that the next person grabbed the form and wrote on it, thus imprinting the Blood note on top of the note to his sister, which appeared on the carbon below. Toy declined the opportunity to call witnesses or confront any adverse witnesses.

Toy asserts, for the first time on appeal, that he was denied a polygraph examination and an opportunity to provide documentation that he is a Muslim. He claims that "under no circumstances can a Muslim be a gang member." He also asserts that counsel substitute failed to obtain the required documents that would establish he was a Muslim and that his hearing was not held within the required period of time.

"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 South 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).

The issues raised concerning Toy's religion and the failure of his counsel substitute to obtain records do not concern the jurisdiction of the hearing officer or the Administrative Tribunal. Petitioner also does not claim that the issues concern matters of great public interest. Although we appreciate Toy's religious affiliations and accept his assertion that it is contrary to the Muslim religion to be a member of a gang, those facts alone do not establish the credibility of Toy's version. Moreover, the delay in the disciplinary hearing beyond the proscribed seven-day period to allow time for petitioner to heal from his injuries was in compliance with N.J.A.C. 10A:4-9.8(b), which provides for "reasonable postponements."

We view Toy's contention that he should have been afforded a polygraph test somewhat differently. The State correctly points out, pursuant to N.J.A.C. 10A:3-7.1(c), that "[a]n inmate's request for a polygraph examination shall not be sufficient cause for granting the request." Indeed, "an inmate does not have an unqualified right to a polygraph test." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (citing Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997).

We, however, part company with the State's assertion that there was no issue of credibility based upon the discovery of the anonymous threatening material and the determination by the SID investigator that it was authored by Toy. Toy specifically denied writing the threatening material and gave an explanation as to how the offending words were imprinted on the carbon copy of the letter to his sister. While his denial alone would not support the need for a polygraph test, a comparison of the Blood note with the carbon imprint of Toy's letter to his sister established extrinsic evidence supporting Toy's testimony that he did not author the Blood note. As we previously noted, Toy's note was written in longhand script while the Blood note is boldly printed in much larger letters. They were completely different writing styles.

It is within the prison administrator's discretion to decide whether to administer a polygraph. Id. at 24. That decision "must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding." Ibid. Such impairment may establish by "some other extrinsic evidence involving credibility, whether documentary or testimonial." Ibid. Conversely, fundamental fairness is not triggered "when there is sufficient corroborating evidence presented to negate any serious question of credibility." Ibid. In our view, the existence of two distinctly different writings amounted to extrinsic documentary evidence justifying the administration of a polygraph. Although never requested, under these circumstances, a polygraph test was warranted to maintain the fundamental fairness of the disciplinary process. Accordingly, we reverse the sanctions imposed and remand for further proceedings to give the Department an opportunity to perform and Toy to submit to a polygraph test. The results should then be considered in determining the validity of the SID investigator's conclusion that Toy authored the Blood document. We do not retain jurisdiction.

Reversed and remanded.

(continued)

(continued)

7

A-3291-06T3

February 25, 2008