ALBERT BARNES v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5561-07T25561-07T2

ALBERT BARNES,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________

 

Submitted August 12, 2009 - Decided

Before Judges Rodr guez and LeWinn.

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

Albert Barnes, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Albert Barnes appeals from the final agency decision of the New Jersey Department of Corrections (DOC) imposing disciplinary sanctions upon him for committing prohibited act *.202, "possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool[,]" in violation of N.J.A.C. 10A:4-4.1(a). For the reasons that follow, we affirm.

Appellant is currently incarcerated in East Jersey State Prison serving an aggregate term of twenty years with a ten-year period of parole ineligibility for his convictions on aggravated assault and related weapons offenses. On July 2, 2008, while incarcerated at South Woods State Prison (SWSP), appellant's cell was subject to a routine search by Senior Corrections Officer Brian Ambros. According to Ambros' report of that date,

while doing a routine cell search of cell #2113[,] I . . . was searching the locked locker of [inmate] Barnes #549230. While searching the locker[,] I . . . shook a lotion bottle that sounded to have something inside[;] upon further inspection[,] I . . . retrieved an app[roximately] 7" sharpened spike with a white cloth tied on it for a handle inside of the bottle. At this time [the] area [sergeant] was called.

Appellant was served with a copy of the disciplinary charge the following day, and his hearing was scheduled for July 7, 2008. On that date, the hearing was adjourned due to appellant's request for a polygraph examination. In support of this request, appellant stated that he had been in his assigned cell "for approximately 18 months" during which time Ambros "searched [his] cell over 30 times." Appellant asserted that Ambros had searched his cell "[t]he day prior" to July 2, and again earlier in the day on July 2, "with negative results until the second time." He asserted that "[t]he only way to prove [his] innocence [was] via polygraph."

SWSP Administrator Karen Balicki denied appellant's polygraph request on July 7, 2008, stating that she saw "no issues of credibility that cannot be addressed by the [h]earing [o]fficer at [the] hearing."

Appellant's hearing was then held on July 9, 2008; appellant entered a plea of not guilty and requested the assistance of a counsel substitute, which was granted. Appellant gave the following statement:

The day before they searched everything. I was missing some stuff. I went to Ambros' snitch [and] we had words. The runners were taking stuff. Ambros[] is always searching my stuff. I go home soon. Why would I do that? When I bought lotion, it was the old clear bottle. I think somebody planted that there.

Appellant was offered the opportunity both to confront adverse witnesses and to present witnesses on his on behalf; he declined both offers.

In finding appellant guilty of the disciplinary charge, the hearing officer stated:

[The inmate] vehemently denies having the weapon, but the officer's report shows it was found inside a lotion bottle inside this [inmate]'s locker. This is [inmate] Barne[s'] area of control and responsibility. Physical evidence is a spike[-]type instrument that could only be used as a weapon. Polygraph was denied with adequate administrative explanation.

The hearing officer thereupon recommended a sanction of fifteen days detention, 150 days loss of commutation time, 150 days in administrative segregation and confiscation of the contraband. Appellant filed an administrative appeal and, on July 11, 2008, Assistant Superintendent John Powell affirmed the hearing officer's decision.

On appeal to this court, appellant raises the following arguments for our consideration:

POINT I

APPELLANT'S RIGHTS WERE VIOLATED WHEN THE HEARING OFFICER FAILED TO ALLOW HIM TO MARSHALL FACTS IN ORDER TO PUT ON A FAVORABLE DEFENSE AND FOUND HIM GUILTY WITHOUT SUBSTANTIAL EVIDENCE

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 BY SUPERINTENDENT KAREN BALICKI

POINT III

[THE] HEARING OFFICER . . . DID NOT HAVE SUBSTANTIAL EVIDENCE TO FIND APPELLANT GUILTY OF DISCIPLINARY INFRACTION *.202 POSSESSION OR INTRODUCTION OF A WEAPON, SUCH AS BUT NOT LIMITED TO A SHARPENED INSTRUMENT, KNIFE OR UNAUTHORIZED TOOL, AND HE FAILED TO OBTAIN A STATEMENT FROM APPELLANT'S THEN CELL MATE TO ASCERTAIN IF THE LOTION BOTTLE AND OR WEAPON BELONGED TO HIM

Having considered these contentions in light of the record and the controlling legal principles, we conclude that they lack merit. We affirm substantially for the reasons stated by the hearing officer in his decision of July 9, 2008, which was affirmed by the agency. We add only the following comments.

The uncontroverted evidence established that a weapon was found inside a lotion bottle located in appellant's locked locker; clearly, this was an "area of [appellant's] control and responsibility." Insofar as appellant claimed that the item was not his and was "planted" in his locker, he provided no evidence to support that contention despite being offered the opportunity to do so.

Appellant had the assistance of substitute counsel who did not call witnesses on his behalf; presumably, had appellant been able to identify such witnesses, substitute counsel would have called them to testify, particularly since, as the hearing officer noted, appellant "vehemently" protested his innocence.

We are satisfied that the prison administrator, Balicki, properly denied appellant's request for a polygraph examination. N.J.A.C. 10A:3-7.1(a)1 provides that "[a] polygraph examination may be requested by the Administrator or designee[,] [w]hen there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge[.]" (Emphasis added). Here, Balicki concluded that any issues of credibility could be "addressed" by the hearing officer. As noted, however, appellant declined the opportunity to challenge Ambros' credibility either by cross-examining him or by presenting witnesses or any other evidence to contradict him.

We have held that an inmate's request for a polygraph examination "is conditional and . . . 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." Ramirez v. Dep't of Corrections, 382 N.J. Super. 18, 20 (App. Div. 2005). However, the administrative regulation "is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Id. at 23-24.

Appellant failed to demonstrate either "a serious question of credibility[,]" or how "the denial of the examination would compromise the fundamental fairness of the disciplinary process." Id. at 20. The mere denial of the charge, without some proffer of an alternative explanation of the underlying offense, is not in and of itself sufficient to compel the discretionary grant of a polygraph examination as contemplated by N.J.A.C. 10A:3-7.1(a)1. If appellant's defense was that Ambros or someone else planted the weapon in his lotion bottle, he had the opportunity to advance that defense at the hearing; as noted, however, he declined to do so.

We are satisfied that appellant's adjudication of guilt was based upon "substantial evidence." As we 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." Accord In re Public Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961); Mead Johnson & Co. v. Borough of South Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967).

The "substantial evidence" standard permits an agency to apply its expertise where the evidence supports more than one conclusion. "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chemical Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990) (quoting De Vitis v. New Jersey Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

In this case there was substantial, credible evidence to support the agency's decision imposing disciplinary sanctions upon appellant for committing prohibited act *.202. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Affirmed.

 

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A-5561-07T2

August 21, 2009