TERRY ORR v. NEW JERSEY DEPARTMENT OF CORRECTIONS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6026-07T36026-07T3

TERRY ORR,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted April 27, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from a Final Decision of the

New Jersey Department of Corrections.

Terry Orr, appellant, pro se.

Anne Milgram, Attorney General, attorney

for respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel;

Susan M. Scott, Deputy Attorney General,

on the brief).

PER CURIAM

Appellant Terry Orr, an inmate at Northern State Prison, appeals from a final decision of the Commissioner of the Department of Corrections finding him guilty of disciplinary infraction *.002, assaulting a person, N.J.A.C. 10A:4-4.1. Appellant was sanctioned fifteen days detention, with credit for time served, 180 days administrative segregation and 180 days loss of commutation credit. We affirm.

The facts are simply stated. On July 15, 2008, Senior Corrections Officers Smith and Offer heard smacking noises come from the 1-1 line in A-unit during the passive recreation halftime movement. They responded to that area, and observed several inmates gathered around the steps and shower. Officers Smith and Offer saw Orr throwing punches at inmate Barnes, who had been cutting hair in his designated barber area in front of cell #1-1-4. Inmate Laws attempted to block Officer Smith's line of sight and shouted, "nothing is going on Smith, it's all good." Officer Smith ordered inmate Laws to move out of the way. Officer Smith then ordered Orr to stop fighting and step away from Barnes. Orr complied with this directive. Officer Smith and his partner then secured the unit. Orr was checked by medical staff. Orr had an injury to his left ear, which was sutured by the prison's medical staff. He was then cleared for placement in pre-hearing detention and charged with fighting with another person.

On July 18, 2008, Hearing Officer Maniscalco adjudicated the disciplinary charges. Orr pled not guilty and requested the assistance of counsel substitute, which was granted. After reviewing the evidence, Hearing Officer Maniscalco modified the *.004 fighting charge to the more appropriate *.002 charge, assaulting another person.

On appeal, Orr raises the following issues:

POINT I

I HAVE A RIGHT TO A ADVERSERIAL DISPLINARY [SIC] HEARING, WITH ALL OF THE PROTECTIONS AS AFFORDED BY AVANT V. CLIFFORD AND PROGENY. (not raised below)

A. I HAVE A RIGHT TO A POLYGRAPH EXAMINATION. (not raised below)

B. THE REPORTS FILED BY THE DOC ARE ILLEGIBLE, AND I HAVE A RIGHT TO READ THE REPORTS OF THE HEARING OFFICER. (not raised below)

C. I HAVE A RIGHT TO CONFRONT MY ACCUSER IN AN ADVERSARIAL SETTING. (not raised below)

POINT II

THERE WAS NO SUBSTANTIAL EVIDENCE OF MY GUILT. THE HEARING OFFICER DID NOT BASE THE DECISION UPON SUSBSTANTIAL [SIC] EVIDENCE AS MANDATED BY N.J.A.C. 10A:4-9.15(a). (not raised below)

POINT III

I HAD A RIGHT TO QUALIFIED COURTLINE REPRESENTATION. THE FAILURE OF MY COURTLINE SUBSTITUTE TO ASSERT A DEFENSE, REQUEST A POLYGRAPH EXAMINATION, AND CONFRONT MY ACCUSER. (not raised below)

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant do not apply. See Avant v. Clifford, 67 N.J. 496, 523-24 (1975). However, prisoners are entitled to certain limited protections prior to being subjected to disciplinary sanctions. These rights are defined in Avant, as follows:

(1) Written notice of the charges at least 24 hours prior to the hearing, id. at 525;

(2) An impartial tribunal, which may consist of personnel from the central office staff of the Department, id. at 525-28;

(3) A limited right call witnesses and present documentary evidence in defense to the charges, id. at 529;

(4) A limited right to confront and cross-examine adverse witnesses, id. at 529-30;

(5) A right to a written statement of the evidence relied upon and the reasons for the sanctions imposed, id. at 533;

(6) Where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel-substitute, id. at 529.

The procedural due process requirements articulated in Avant were reaffirmed by the New Jersey Supreme Court. See McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 217 (1995). The Court found that the current regulations "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald, supra, 139 N.J. at 202.

Here, all the above requirements were met. Orr received twenty-four hours' notice of the charge prior to the hearing on the merits. The charge was delivered to Orr at approximately 9:20 a.m. on July 16, 2008, and the hearing was held on July 18, 2008. Orr's case was heard before Hearing Officer Maniscalco, who, as a member of the Department's Central Office staff, was an impartial tribunal.

Pursuant to N.J.A.C. 10A:4-9.12, an inmate charged with an asterisk offense must be afforded counsel substitute. Because the charge against Orr was an asterisk offense, he was afforded the assistance of counsel substitute during the hearing. Inmate paralegals/counsel-substitutes all receive legal training. N.J.A.C. 10A:6-2.13. However, a counsel substitute does not act as an attorney during an adjudication hearing. Rather, counsel substitute facilitates the hearing under the direction of the hearing officer and advises the inmate with regard to his due process rights.

Critically important, appellant did not raise the issues now complained of at the time of his hearing. Even disregarding that failure, there is no merit to his claims. As we have noted, appellant was granted a hearing, provided with counsel substitute, given the opportunity to call witnesses on his behalf, (but declined to do so), served with notice of the charges, and provided with legible copies of the records.

We reject his claim the he was entitled to a polygraph examination. Simply requesting a polygraph, does not entitle a prisoner to a polygraph. Johnson v. Dept. of Corrections, 298 N.J. Super. 79, 83 (App. Div. 1997). There must be a showing that fundamental fairness will be implicated in the denial of such a request. Ramirez v. Dept. of Corrections, 382 N.J. Super. 18, 23-25 (App. Div. 2005). No request was made here, but most important, Officer Smith heard the "smacking noises" as well as observing appellant throw punches at Barnes. The fundamental fairness of this proceeding was not compromised by the lack of a polygraph.

Finally, appellant's claim regarding ineffective assistance of counsel substitute is rejected as well. Appellant concedes that there is no case law supporting his position regarding ineffective assistance of counsel substitute; moreover, even though we have noted that counsel substitute is not counsel but present to advise appellant of his due process rights, our review of the record indicates that counsel substitute fulfilled his responsibility.

Only where an agency's decision is arbitrary or capricious or unsupported by credible evidence in the record may it be reversed. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). Unless a court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling will not be disturbed. In re Carter, 191 N.J. 474, 482 (2007); In re Martinez, 403 N.J. Super. 58, 75 (App. Div. 2008).

An adjudication of guilt of an infraction must be supported by "substantial" evidence. McDonald, supra, 139 N.J. at 198; Jacobs, supra, 139 N.J. Super. 222; Avant, supra, 67 N.J. at 530; codified at N.J.A.C. 10A:4-9.15(a). As 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." See also In re Public Service 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. (Vichem), 243 N.J. Super. 285, 307 (App. Div.), (quoting De Vitis v. New Jersey Racing Comm'n., 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990).

We are satisfied that the findings here were well-supported by the record.

Affirmed.

 

Our copies of the records are the same as those provided to appellant and are legible; moreover, according to respondent's brief, appellant has been supplied typed copies of the adjudicatory documents.

(continued)

(continued)

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A-6026-07T3

June 5, 2009