CHAKA KWANZAA 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NOT FOR PUBLICATION WITHOUT THE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-3152-08T3


CHAKA KWANZAA,

         Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

          Respondent.
____________________________

         Submitted: April 28, 2010 - Decided: May 12, 2010

         Before Judges Axelrad and Espinosa.

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

         Chaka Kwanzaa, appellant pro se.

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

PER CURIAM

     Chaka Kwanzaa appeals from a final determination of the

Department   of    Corrections   (DOC)   that   he   violated   *.003,

assaulting any person with a weapon, N.J.A.C. 10A:4-4.1.1                          The

hearing     officer       imposed      15       days     detention,       365     days

administrative segregation, 365 days loss of commutation time,

and   30   days    loss    of   recreation       privileges.          Following     an

administrative appeal, the associate administrator upheld the

decision of the hearing officer.               Appellant then filed an appeal

of the agency's decision.

      Appellant     argues:      (1)      the     hearing       officer     was    not

impartial;   (2)    the    hearing     officer        delayed   the   hearing     with

arbitrary postponements and violated appellant's substantial due

process rights by failing to provide a hearing within seventy-

two hours; (3) the hearing officer improperly denied appellant's

request to marshal the facts and to obtain or present certain

evidence, as well as his request for a polygraph; (4) he was

denied his right to confront adverse witnesses; and (5) the

hearing officer failed to articulate his findings of fact.                          We

reject appellant's arguments and affirm.

      The charges arose from an incident on January 7, 2009,

between    appellant      and   Bayside       State    Prison    Sergeant    Worlock

about property that appellant claimed had been lost or damaged

1
   DOC   Inmate  Disciplinary   Regulations classify  "asterisk
offenses" as prohibited acts considered to be the most serious
violations, resulting in the most severe sanctions.    N.J.A.C.
10A:4-4.1. See also Hetsberger v. N.J. Dep't of Corr., 
395 N.J.
Super. 548, 556 (App. Div. 2007).



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at    the   prison.         The    evidence       presented     was   that   when   Sgt.

Worlock      disputed        the     claim,        appellant     became      loud    and

belligerent and threw his cane at the officer, striking him in

the arm.     Senior Corrections Officers Romano and Veach, who were

present, restrained and cuffed appellant.                      Appellant denied the

act, challenged the credibility of the officers, and claimed

they fabricated the incident in retaliation for his submission

of remedy forms and past and present legal actions.

       Appellant      was    immediately          transferred    to    Southern     State

Correctional Facility after the incident and was served with

notice of the charge the next day.                    The hearing was originally

scheduled for January 9, 2009, but was postponed ten times for a

variety of reasons, including the detention unit being closed

for repair, the scheduling of the confrontation hearings with

the three officers as requested by appellant, the processing of

appellant's polygraph request, and the obtaining and viewing of

the videotape as requested by appellant.                   Appellant was provided

with the assistance of counsel substitute, although he indicated

he wanted to represent himself.

       The testimony of the officers took place on January 15, and

the hearing concluded on January 27, 2009.                            In his detailed

decision the hearing officer summarized the officers' testimony

and    appellant's      denial       of   the       incident     and    assertion      of




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retaliation and due process violations.                      The hearing officer

made express credibility findings, noting the reports of the

officers were consistent with one another and the charge written

by Sgt. Worlock.          He further found that each officer who was

independently questioned answered all the questions consistent

with    one     another,        "without       hesitation        and,     with      noted

certainty."        The hearing officer also found that appellant's

representation      of    the    videotape      as    showing     him    leaving     Sgt.

Worlock's      office    without     being     handcuffed        was    not   accurate.

Based on his analysis of the testimony and evidence, the hearing

officer    found       appellant's      defense       not   to   be     credible,      and

expressly found no evidence of staff retaliation or misconduct.

       We are satisfied appellant was afforded the procedural due

process required by Avant v. Clifford, 
67 N.J. 496 (1975).                             The

hearing officer was a member of the DOC central office staff and

would therefore appear to qualify as an impartial tribunal.                            Id.

at 525-28.      Appellant's allegations that the hearing officer was

biased because appellant filed a lawsuit against him more than a

decade ago is not supported by any evidence, merely a cite to a

caption, Kwanzaa v. Morton, No. 98-2709 (AET).                          Appellant was

provided      written    notice    of   the    charges      at   least    twenty-four

                                                       Avant, supra, 67 N.J. at
hours prior to the initial hearing,

525,    and      the     adjournments          were     reasonable        under        the




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circumstances     and    did    not     unduly     delay    completion       of    the

hearing.

       Appellant was not hampered in his ability to obtain and

present relevant evidence.            Appellant's asserted confrontation

violations, namely that the officers were not sequestered, were

questioned behind a big, steel door that impaired his ability to

hear their responses, and were not asked critical questions is

not supported by the record.            According to the hearing officer's

certification, the confrontation hearings were conducted in the

detention unit where appellant was incarcerated and the hearing

officer    and   sequestered     officer     who   was     being    cross-examined

were in the same room with appellant, who was situated in a

holding area surrounded by mesh fencing.                     Thus, neither the

physical makeup of the room nor the location of the parties in

the    room   would     have    prevented    appellant       from       hearing    the

questions or answers.          Moreover, at no time did appellant or his

counsel    substitute     inform   the    hearing     officer      of    a   problem.

Appellant correctly states that the hearing officer did not ask

all of the confrontation questions he submitted.                    That is not a

requirement, however, as the hearing officer has the discretion,

here   properly    exercised,      to    delete     questions       that     are   not

relevant or that request information about the DOC's internal

operating procedures or policies.




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       We also reject appellant's argument that he was denied due

process because he did not receive the polygraph examination he

requested.      An inmate's mere request for polygraph examination

shall not be sufficient cause, in and of itself, for granting

                     Johnson v. N.J. Dep't of Corr., 298 N.J. Super.
the request.

79, 83 (App. Div. 1997).                In addition, a polygraph is clearly

not    required      on    every     occasion     that    an    inmate    denies       the

disciplinary charge against him, but rather the request should

be granted "where 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

Corr.,    
382 N.J.      Super.   18,       20,    23-24    (App.    Div.     2005).

Impairment      of        fundamental     fairness        may    be     evidenced       by

inconsistencies in the officers' statements or a statement by

another inmate on the inmate's behalf but "will not be effected

when   there    is    sufficient      corroborating        evidence      presented      to

                                                                Id. at 24.
negate any serious question of credibility."

       In appellant's case, the record does not show any issues of

credibility       that       could    not       have     been    determined       at     a

disciplinary         hearing.         Appellant         requested       and     received

confrontation of the three officers.                     Thus, the absence of a

polygraph did not compromise the fundamental fairness of the

disciplinary process.




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       Our review of the DOC's decision is limited.                  Only where

the agency's decision is arbitrary, capricious or unreasonable,

or unsupported by substantial credible evidence in the record as

a whole, will we reverse such decision.             Henry v. Rahway State

Prison, 
81 N.J. 571, 579-80 (1980); see also In re Taylor, 
158 N.J. 644, 657 (1999) (court must uphold an agency's findings,

even if it would have reached a different result, so long as

sufficient credible evidence in the record exists to support the

agency's conclusions).            Here, in determining guilt, the hearing

officer relied on reports from the officers who were present at

the    scene    as    well   as    appellant's   denial    and   argument     of

retaliation.         Based on this evidence, the hearing officer made

credibility assessments, which he clearly articulated, and set

forth detailed findings of fact to support his determination.

As    there    is    sufficient    credible   evidence    in   the   record   to

support the agency's adjudication of guilt of the disciplinary

infraction, there is no basis to disturb that determination.

       Affirmed.




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