WILLIAM NAVARRO v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3173-08T33173-08T3

WILLIAM NAVARRO,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

____________________________

 

Submitted May 11, 2010 - Decided

Before Judges Messano and LeWinn.

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

William Navarro, 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

Appellant is currently an inmate at Northern State Prison in Newark. He was charged with disciplinary infraction *.009, "misuse, possession . . . [of] an electronic communication device," in violation of N.J.A.C. 10A:4-4.1(a). Following a hearing on January 14, 2009, the hearing officer found the inmate guilty and imposed the following sanctions: ten days' detention, 365 days' Administrative Segregation, 365 days' loss of commutation time, permanent loss of contact visits, ninety-five days' loss of telephone privileges, fifteen days' loss of recreation privileges, and referral for a custody status review. Appellant filed an administrative appeal and, on January 22, 2009, Associate Administrator W. Bruce Sapp upheld the guilty determination but modified the sanctions imposed by suspending the Administrative Segregation for ninety days; the other sanctions remained in effect.

Defendant now appeals the final decision of the Department of Corrections (Department), and raises the following issues for our consideration:

POINT I

THE DISCIPLINARY HEARING OFFICER'S FINDING OF GUILT WAS NOT BASED UPON SUBST[A]NTIAL CREDIBLE EVIDENCE IN THE RECORD AS A WHOLE THAT I COMMITTED N.J. ADMIN. CODE TITLE 10A:4-4-1(A) [SIC] PROHIBITED ACT [*].009 POSSESSION OF ELECTRONIC EQUIPMENT SAMSUNG AT&T CELLULAR TELEPHONE

POINT II

THE AGENCY BELOW SHOULD HAVE GRANTED MY REQUEST FOR A POLYGRAPH TEST BECAUSE OF THE CONFLICTING VERSIONS OF EVENTS REPORTED BY ADVERSE WITNESSES SGT KERNER AND SCO GUIDO

The factual background may be briefly summarized as follows. On December 11, 2008, at approximately 6:00 p.m., Senior Corrections Officer Guido, under the supervision of Sergeant Kerner, ordered all inmates in appellant's dormitory in Unit B-1, to exit the dormitory so that it could be searched. As the inmates were leaving the dormitory, Guido and Kerner entered the bathroom area and observed appellant alone in the bathroom sitting on a toilet. The officers ordered appellant to get up, leave the area, and not to flush the toilet. Appellant did as instructed; after he left the bathroom area, the officers discovered a cell phone in the toilet where he had been sitting, "under wads of tissue."

Appellant pled not guilty to the charges, was assigned counsel substitute, and submitted statements from three inmate witnesses which contradicted Guido's and Kerner's versions of the incident. Appellant was also afforded the opportunity to submit confrontation questions to Guido and Kerner. The officers were specifically questioned about the statements given by the inmate witnesses, and denied the allegations in those statements.

Appellant also submitted a statement from Deborah Conroy, who identified herself as appellant's fiancée, asserting that she had established a "GTL (Global Tell Link) account for [appellant] to be able to call home via the institutional phone." Conroy attached phone bills showing over $9,000 in charges to the account. Conroy stated that appellant "has remained consistent in his calling since 2006[,]" and asked, "why would we spend close to ten thousand dollars if [appellant] had a cell phone?"

We note initially that "[c]ourts have a limited role in reviewing a decision of an administrative agency." Henry v. Rahway State Prison, 81 N.J. 571, 579 (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." Id. at 579-80.

We further note that appellant was afforded all of the recognized protections that an inmate facing disciplinary charges is entitled to receive. McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Avant v. Clifford, 67 N.J. 496, 523 (1975).

"A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). Substantial evidence is defined as "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Gas & Elec. Co., 35 N.J. 358, 376 (1961) (quoting In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).

On this record we reject as without merit appellant's argument that the hearing officer's determination was not based upon substantial credible evidence in the record. R. 2:11-3(e)(1)(D).

Here, the reports of Guido and Kerner, which were consistent with each other, provided "substantial evidence" to support the agency's findings. Neither the inmate witnesses' statements nor that of appellant's fiancée mandates a different result. As noted, the officers refuted the inmates' versions of what occurred in their answers to defendant's confrontation questions. Moreover, the fact that appellant may have an account that allows him to call home on an institutional line does not, in and of itself, disprove the possibility of his possessing a cell phone in violation of prison regulations. In short, because the record contains substantial evidence to support the findings below, we must defer. Henry supra, 81 N.J. at 579-80.

We also reject appellant's claim that he was entitled to a polygraph examination. Simply requesting a polygraph does not entitle an inmate to have such an examination. Johnson v. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997); N.J.A.C. 10A:3-7.1(c). There must be a showing that fundamental fairness will be implicated in the denial of such a request. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-25 (App. Div. 2005). We are satisfied that the fundamental fairness of appellant's proceeding was not compromised by the lack of a polygraph.

 
Affirmed.

(continued)

(continued)

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A-3173-08T3

August 4, 2010