THOMAS PETERSON 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NOT FOR PUBLICATION WITHOUT THE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-5916-06T35916-06T3

THOMAS PETERSON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

 

Submitted July 1, 2008 - Decided

Before Judges Skillman and Winkelstein.

On appeal from a final decision of the Department of Corrections.

Thomas Peterson, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Kyle K. Bradley, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Thomas Peterson is an inmate at South Woods State Prison serving a ten-year sentence for convictions for aggravated assault and burglary. He appeals from a final agency decision of the Department of Corrections imposing disciplinary sanctions for committing prohibited act *.803/*.002, attempted assault on a person, and *.010, participating in activities related to a security threat group. The agency imposed fifteen days detention, 300 days administrative segregation, and 300 days loss of commutation time. On appeal to this court, appellant makes the following arguments:

1. I was denied confrontation as to my accuser the [confidential informants];

2. I was never served with my institutional allegation timely;

3. I remained in TCC [temporary closed custody] [too] long;

4. I should have been allowed to see the written statements of the alleged [confidential informants] prior to my hearing;

5. I was unlawfully refused a polygraph exam.

Having reviewed the record in light of the applicable law, we conclude that the arguments raised by appellant are without merit and affirm.

The allegations against appellant arose out of an incident that occurred on May 14, 2007, at Bayside State Prison. At approximately 12:50 p.m., another inmate, Luis Lopez, was dragged into appellant's cell where he was beaten by six inmates. Through the use of photographs, Lopez identified appellant as one of his attackers. A confidential informant advised investigating officers that appellant was one of the inmates who assaulted Lopez, but another inmate contradicted that statement, indicating that appellant was in the day room when the assault occurred.

Appellant claimed that he was in the law library getting a document notarized at the time of the assault. Inmate Ackerman submitted a statement indicating that at approximately the time of the assault, he saw appellant in the law library. Inmate Baez, however, who claimed to have been with Inmate Ackerman at the time, submitted a statement indicating that at approximately 1:00 p.m. on the day of the assault, appellant was walking to the school area of the facility. The prison's assistant education supervisor, who apparently would have been the person whose office performed the notary in the law library, could not recall appellant being there on the date of the incident.

After the attack was reported, appellant was placed in temporary closed custody until May 21, 2007. He was charged on May 22, 2007, and a disciplinary hearing was scheduled for the next day. It was subsequently postponed on a number of occasions to allow the investigation to be completed.

The hearing before the hearing officer was conducted on June 4, 2007. Appellant pleaded not guilty and had the assistance of a counsel substitute. He was provided with all of the evidence against him, with the exception of the confidential report, but he received a summary of that report. He was given the opportunity to confront witnesses, and presented his own witnesses' statements. The hearing officer concluded that appellant was one of the attackers. Following an internal appeal, the agency affirmed.

Our review of an agency's decision is limited. Only when that decision is arbitrary, capricious or unreasonable, or unsupported by the substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999). Given this standard, we find appellant's arguments to be without merit. Although there was conflicting evidence as to whether he was one of the inmates who assaulted Lopez, the evidence was sufficient to support the hearing officer's determination that he was.

By the use of photographs, the victim identified appellant as one of his attackers. One of the confidential informants identified appellant as being present in his cell around the time of the assault. Although appellant testified that he had an alibi, and other witnesses verified that he had an alibi, the hearing officer rejected that testimony and relied upon the testimony of the victim and the confidential informant who identified appellant. The hearing officer's findings could reasonably have been reached on the sufficient evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Nor was appellant's right to due process and fairness violated. Although there was a delay in conducting the hearing, the delay was reasonable in light of the extensive investigation conducted by the agency following the attack. Appellant had a counsel substitute at the hearing, and was given the right to confront and cross-examine adverse witnesses. The failure to afford appellant a polygraph examination was not an abuse of discretion, and did not compromise the fundamental fairness of the disciplinary proceedings. See Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 23-26 (App. Div. 2005); Johnson v. N.J. Dep't of Corrs., 298 N.J. Super. 79, 83 (App. Div. 1997). Appellant received all of the procedural protections to which he was entitled. See Avant v. Clifford, 67 N.J. 496, 522-23 (1975).

Appellant's remaining arguments are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(D), (E).

Affirmed.

(continued)

(continued)

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A-5916-06T3

July 16, 2008