DONTAE GARRETT 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NOT FOR PUBLICATION WITHOUT THE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-1098-08T31098-08T3

DONTAE GARRETT,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________

 

Submitted September 8, 2009 Decided

Before Judges Messano and Alvarez.

On appeal from the New Jersey Department of Corrections.

Dontae Garrett, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Dontae Garrett, an East Jersey State Prison inmate, appeals from the final administrative decision issued by respondent, New Jersey Department of Corrections (DOC), on August 19, 2008. The decision affirmed the adjudication for disciplinary infraction *.203, but modified the sanctions imposed. We affirm.

On May 14, 2008, at 1:49 p.m., Garrett returned to his halfway house, while seemingly intoxicated. He was searched by Rose Roldan, an assistant director at the halfway house, and a large amount of money was found in his pockets. Roldan could not administer a breathalyzer test because Garrett was unable to stand. The DOC was promptly called to remove Garrett, as intoxication while at a halfway house is grounds for the immediate return of an inmate to state prison.

At 2:05 p.m., Garrett was transported in a DOC van by Senior Corrections Officers (SCO) Marcano and Ramos to Riverfront State Prison. The DOC van had been searched prior to

leaving Riverside, and no contraband was then found in the vehicle.

Roldan did not strip search Garrett, rather, she performed a "wand search" and directed that he empty his pockets and remove his outer clothing, such as a jacket, hat or shoes. Garrett was placed in the rear of the DOC van, his hands cuffed in the front.

During the trip, both officers noted that Garrett was fidgeting in his seat. Upon arrival, Garrett was escorted from the van, at which point SCO Marcano saw that Garrett's jeans were open at the crotch. The officers subsequently searched the van and found a small clear bag containing a rock-like substance suspected to be cocaine in the seat area occupied by Garrett. The suspected contraband was sent to the New Jersey State Police Laboratory for analysis and was found to contain cocaine. As a result, Garrett was charged with committing prohibited act *.203, which is defined as "possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff." N.J.A.C. 10A:4-4.1(a). The hearing was completed on August 13, 2008, by Hearing Officer Maniscalco.

Prior to the hearing, Garrett requested and obtained the assistance of counsel substitute, submitted written questions for answer by the SCOs, and obtained a statement from Roldan. His request for polygraph testing was denied.

After reviewing all the evidence, Maniscalco found Garrett guilty of the *.203 infraction and sanctioned him to fifteen days detention, 365 days of administrative segregation, 365 days of loss of commutation time, permanent loss of contact visits, 365 days of urine monitoring, confiscation of the contraband, a referral for drug treatment, and forwarded the matter to the Special Investigations Division for possible referral to the county prosecutor.

On August 13, 2008, Garrett administratively appealed Maniscalco's decision. On August 19, 2008, the adjudication was upheld, but the sanctions were modified. Administrator Greg Bartowski reduced the administrative segregation and loss of commutation time from 365 days each to 180 days each.

The written adjudication of the disciplinary charge indicates that the hearing was postponed on several occasions to

accommodate Garrett's requests, and that delays resulted from those accommodations. During the hearing Garrett disputed the finding that the drugs belonged to him, among other reasons, because the SCOs did not actually see him placing the item in the van. Garrett also argued that the charges should be dismissed because of the length of time prior to adjudication. Maniscalco concluded, however, that there was substantial evidence supporting the charge that when escorted back to prison, Garrett concealed a small amount of cocaine between the seats in the rear of the transport vehicle. In reaching the determination, Maniscalco relied upon the statements by Roldan and the SCOs, as well as on the laboratory analysis of the cocaine. He did not find credible Garrett's denial of ownership of the cocaine and Garrett's claim that it must have been placed there prior to his entering the vehicle.

Garrett raises the following points on appeal:

POINT I

THE DECISION RENDERED BY THE DEPARTMENT HEARING OFFICER SHOULD BE VACATED BECAUSE IT WAS NOT BASED UPON SUBSTANTIAL EVIDENCE THAT THE APPELLANT PLACED THE CONTRABAND IN THE VEHICLE.

POINT II

DUE TO THE OPPOSING RENDITIONS PROVIDED BY APPELLANT AND THE REPORTING OFFICERS, THERE EXISTED LEGITIMATE ISSUES OF CREDIBILITY, THUS THE DEPARTMENT ERRED IN DENYING APPELLANT'S REQUEST FOR A POLYGRAPH EXAMINATION.

POINT III

THE HEARING OFFICER'S RELIANCE ON APPELLANT'S ALLEGED INTOXICATION TO SUPPORT HIS REASON FOR SANCTION IS MISPLACED AND INAPPROPRIATE BECAUSE HE WAS NOT TESTED, CHARGED OR FOUND GUILTY OF THE INFRACTION.

Contrary to Garrett's contentions, there was substantial evidence, as Maniscalco determined, albeit circumstantial, that hid cocaine in the rear of the transport vehicle. Substantial evidence is "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961) (citation omitted).

The van was searched prior to transport and no drugs were found. Drugs were found only after transport. Given the superficiality of both the pat-down and wand searches conducted by Roldan before Garrett was placed in the van, the fact that no drugs were found on his person prior to the drive is not surprising. More telling is that the zipper to his pants was undone when he was returned to the prison, and that during the trip the officers observed him fidgeting in the rear seat. A reasonable person would find these circumstances adequate to support the conclusion that Garrett placed the drugs in the van. Hence, the adjudication was not arbitrary, capricious or unreasonable, and was supported by substantial evidence in the record. See, e.g., Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) ("Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.") (citation omitted).

Contrary to Garrett's factual assertions on this appeal, both SCOs agreed that it was Ramos who found the contraband hidden in the seat. Garrett similarly misconstrues the responses provided by the officers with respect to the search prior to Garrett's transport. At no time did SCO Ramos state that Marcano performed the search.

Garrett's contends that the failure to allow him a polygraph examination was an abuse of discretion, however, "[t]he right to a polygraph is a limited right provided by N.J.A.C. 10A:3-7.1(a)." Ramirez v. Dept. of Corrections, 382 N.J. Super. 18, 23 (App. Div. 2005). A prison administrator's determination to refuse a request for polygraph examination is discretionary and will be affirmed as long as it is supported by substantial, credible evidence and is not arbitrary, capricious or unreasonable. Id. at 24. The decision will be reversed only where such a denial would "impair the fundamental fairness of the disciplinary proceeding." Ibid. In order to meet this standard, a prisoner must be able to point to either inconsistencies in statements or other extrinsic evidence that casts doubt on the credibility of the officers. In this case, there were no such inconsistencies.

Garrett's final point is that the hearing officer's reliance on his alleged intoxication was improper because he was not tested. Garrett need not have been tested in order to be found to have been intoxicated. Intoxication is a state that may properly be the subject of lay testimony. See State v. Bealor, 187 N.J. 574, 590-91 (2006). Here, Garrett could not stand long enough to submit to a breathalyzer test. Roldan's observations were corroborated by the SCOs. Irrespective of Garrett's state of sobriety, however, the disciplinary infraction was drug possession and not intoxication. Maniscalco's conclusion that Garrett was guilty of infraction *.203 was based on substantial evidence, of which intoxication was only one element.

Garrett was provided with the six requisite due process protections required by the New Jersey Supreme Court. Avant v. Clifford, 67 N.J. 496, 522-23 (1975) (citing Morrissey v. Brewer, 408 U.S. 471 (1972)). He received notice of the charge against him at least twenty-four hours prior to the hearing. The hearing was conducted by an impartial tribunal, as Maniscalco was a member of the department's central office staff. Garrett was afforded counsel substitute, as required when a defendant is charged with an asterisk offense. N.J.A.C. 10A:4-9.12(a). He was permitted to put on a defense at the hearing. Garrett asked for and obtained witness statements on his behalf, specifically, a witness statement from Roldan. He confronted SCOs Ramos and Marcano and obtained their responses to his questions. Garrett and his counsel substitute were shown the adjudication report, and his counsel substitute acknowledged that the information contained in that document accurately reflected the hearing process. Although Garrett was denied a polygraph examination, the prison administrator's decision was a reasonable exercise of discretion.

We consider the agency decision in this case to be supported by ample credible evidence. We do not find that it was arbitrary, capricious or unreasonable, and therefore do not disturb the agency ruling. In re Taylor, 158 N.J. 644, 657 (1999).

Affirmed.

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A-1098-08T3

September 29, 2009