ARSHAN LITTLE 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NOT FOR PUBLICATION WITHOUT THE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-5165-07T15165-07T1

ARSHAN LITTLE,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_____________________________

 

Submitted February 11, 2009 - Decided

Before Judges Waugh and Newman.

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

Arshan Little, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Arshan Little appeals from a Final Agency Decision of the Department of Corrections imposing disciplinary sanctions on him for committing prohibited act *.004, fighting with another person, and prohibited act *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

Appellant is serving a thirty-year sentence with a mandatory minimum of twenty-five years, five months and twenty-nine days for convictions of aggravated manslaughter, robbery and distributing drugs on school property. On April 18, 2008, at approximately 5:37 p.m., a fight broke out in the Inmate Dining Room (IDR) at New Jersey State Prison in Trenton (NJSP). Sgt. White, Senior Corrections Officer (SCO) Stalling and Corrections Officer Recruit (COR) Sebastian all witnessed the altercation. Each of the officers identified appellant as one of the participants.

After the fight, appellant along with the other participants, were removed from the IDR, cleared for placement in pre-hearing detention by medical staff and escorted to the detention area. The physical altercation halted all institutional movements and caused the cancellation of all programs and activities for the inmate population for the remainder of the evening. At the hearing, appellant stated "I was not fighting" and his counsel substitute requested dismissal of the charges. A statement from inmate Anthony D. Hicks was submitted. In that statement, Hicks remembered that at lunchtime on that date that he and the other people at the table were all laughing with appellant because he spilled juice on his State pants. He presumed that appellant was placed in lock up because the stain on his pants was presumed to be blood. The altercation in question, however, did not take place at lunchtime, but rather at the evening meal.

A videotape of the fighting was part of the evidence presented. Although the videotape was blurry, the officers' reports detailed their eyewitness account of the incident.

The hearing officer acknowledged the poor quality of the videotape, but he relied on the eyewitness reports and confrontation testimony which corroborated the fighting charges against appellant. In finding him guilty, the hearing officer found:

[b]ased on the evidence presented it is reasonable to conclude that inmate Little was involved in a fighting episode in the IDR of NJSP. Sgt. White, SCO Stalling and CO Sebastian provided an eyewitness report stating that while assigned to the Mess Hall they observed inmate Little along with several other inmates throwing punches at each other in a large group. Therefore based on the evidence presented as well as the testimony of the witnesses during confrontations and a review of the videotapes there is substantial evidence to support the charge.

The hearing officer recommended sanctions of fifteen days detention, with credit for time served, 365 days administration segregation, 365 days loss of commutation time and thirty days loss of recreation privileges.

In adjudicating the *.306 charge, the hearing officer made the following determination:

[t]he actions of inmate Little significantly contributed to the escalation of the incident necessitating the facility to be locked down for an extended period of time and therefore disrupted the safety, security and normal operations of the institution. Therefore[,] based on the evidence presented as well as testimony of the witnesses during confrontations and a review of the videotapes[,] there is substantial evidence to support the charge.

In connection with the *.306 charge, the hearing officer recommended sanctions of fifteen days detention, with credit for time served, 365 days administrative segregation, 365 days loss of commutation time and thirty days loss of recreation privileges, all of which were run consecutive to the sanctions imposed on the *.004 charge.

Assistant Superintendent Drumm upheld the decision of the hearing officer.

On appeal, appellant raises the following points:

POINT I: THE HEARING OFFICER'S DECISION IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE TO FIND APPELLANT GUILTY OF THE IDR INCIDENT.

POINT II: APPELLANT'S DUE PROCESS WAS VIOLATED WHEN THE DOC ADMINISTRATOR FAILED TO GRANT APPELLANT'S REQUEST FOR A POLYGRAPH EXAMINATION THAT WOULD ASCERTAIN HIS VERACITY THAT HE WAS NOT INVOLVED IN THE IDR EPISODE.

Appellant contends in Point I that the hearing officer's decision was not based upon substantial credible evidence. More specifically, he claims that SCO Stalling wrote a false fighting charge against him and that he coerced COR Sebastian in identifying him as one of the participants in the fight.

There is no question that a fight occurred in the NJSP inmate dining room on April 18, 2008. With the assistance of a videotape of the fight viewed after the fight was over, Sgt. White, SCO Stalling and COR Sebastian each identified appellant as a participant in the fight. COR Sebastian indicated in his confrontation answer that SCO Stalling assisted him in identifying appellant as one of the participants. There is no suggestion, however, that COR Sebastian's identification of appellant was either coerced or tainted in connection with the *.004 charge. Thus, there were three eyewitnesses to the fighting and a videotape of the episode. The *.006 charge grew out of the fight, resulting in the suspension of the correctional facilities activities for the remainder of the evening. Both charges were based on substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

In Point II, appellant claims that he was denied due process because his polygraph test request was denied by the prison administrator. Pursuant to N.J.A.C. 10A:3-7.1(a), a polygraph may be requested of the administrator of the prison when "(1) there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or (2) [a]s part of a reinvestigation of a disciplinary charge, when the Administrator . . . is presented with new evidence or finds serious issues of credibility."

An inmate's mere request for a polygraph examination does not constitute sufficient cause for granting the request. Johnson v. New Jersey Dep't. of Corrections, 298 N.J. Super. 79, 83 (App. Div. 1997). Moreover, a polygraph is not required on every occasion where an inmate denies a disciplinary charge against him. Ramirez v. Dep't. of Corrections, 382 N.J. Super. 18, 23-24 (App. Div. 2005). The request should, however, be granted where there is a serious question of credibility and the denial of an examination might compromise the fundamental fairness of the disciplinary process. Id. at 20.

Appellant's request did not raise a serious question of credibility, nor was the administrator presented with new evidence. The *.004 charge was based on disciplinary reports from SCO Stalling and others that appellant was involved in a fight in the IDR. That report was corroborated by both Sgt. White and COR Sebastian who were eyewitnesses to the fighting, and also viewed the videotape of the fight.

In denying the request for the polygraph, the Administrator, Michelle R. Ricci, indicated that there was no new evidence to substantiate the request for a polygraph examination. In denying the request, she provided the following reasons:

1) There are no issues of credibility in regards to the reporting officer or through investigation that was conducted by the disciplinary Sergeant.

2) The basis of your request "after reviewing the video tapes it does not show that he was fighting" is not sufficient cause for a polygraph examination.

3) There were no findings of new evidence pertaining to this issue.

We discern no basis to disturb the Administrator's discretionary denial of the polygraph request made by appellant where there were eyewitnesses to the incident and a videotape which recorded the episode. The Disciplinary Decision of the Department of Correction which upheld the hearing officer's determination was proper.

 
Affirmed.

(continued)

(continued)

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A-5165-07T1

February 27, 2009