HARVEY COLVIN 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NOT FOR PUBLICATION WITHOUT THE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-5878-08T1

HARVEY COLVIN,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

September 24, 2010

Submitted September 15, 2010 - Decided

Before Judges Axelrad and J. N. Harris.

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

Harvey Colvin, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer S. Hsia, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Harvey Colvin, an inmate serving a fifty-year sentence under the supervision of the Department of Corrections (DOC), seeks review of the discipline imposed upon him for committing a prohibited act in East Jersey State Prison. Specifically, the DOC found that Colvin violated N.J.A.C. 10A:4-4.1(a)(*.202) ("possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool"), and imposed appropriate sanctions upon him. Colvin asserts that not only were his due process rights as a prisoner violated, but also that he was found guilty without adequate and substantial evidence. N.J.A.C. 10A:4-9.15(a) ("A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act."). From our review of the record and consideration of the arguments contained in the parties' briefs, we find no errors that contributed to the determination of appellant's guilt by the DOC, and we affirm.

The facts, but not the ultimate inferences derived from those facts, are not in dispute. On June 15, 2009, during a random, routine search of Colvin's double-bunk housing unit, a corrections officer "recovered [one] sharpened piece of metal with a length of approximately seven and one-half inches. This piece of metal was located inside the mattress of the top bunk." Colvin was charged with committing prohibited act *.202 and served with a Disciplinary Report on the same day as the contraband's discovery.

Colvin denied guilt. He demanded the opportunity for a polygraph examination pursuant to N.J.A.C.10A:3-7.1(a)(1) ("[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"). This request was considered by the appropriate prison authorities and denied.

Colvin does not dispute that the contraband was found in his cell and within his mattress. Nevertheless, because he claims that numerous others had access to his cell and mattress, he asserts that he "was set up, due to problems with gang members " To fortify this theory, Colvin argues that because of his status as a prison plumber, with round-the-clock access to tools and greater freedom of mobility around the prison, he had no need to conceal a sharpened piece of metal in close proximity to where he slept.

At the disciplinary hearing that followed the discovery of the contraband, the only witness to testify was Colvin. Although he was offered the opportunity to confront his accuser and to call witnesses on his own behalf, he declined to do so. Instead, as noted, he argued that there was no substantial evidence to conclude that he was in possession of the makeshift knife.

The hearing officer disagreed, finding sufficient circumstantial evidence to assign possessory rights to Colvin and rejecting Colvin's assertions of non-involvement:

Colvin was found to have a homemade weapon in his cell. He denies guilt. There is no evidence to support his claim that he was unaware of the item being in his cell. It was in an area where he had easy access to it, and inmates are responsible to monitor their cells and are responsible for the contents.

The hearing officer recommended a sanction of fifteen days detention, 240 days loss of commutation time, and 240 days in administrative segregation. Appellant filed an administrative appeal and, on June 30, 2009, Assistant Superintendent Charles E. Davis affirmed the hearing officer's decision. See N.J.A.C. 10A:4-11.5(a)(5) (as one of five possible actions on a disciplinary appeal, the decision of the hearing officer may be upheld).

On appeal to this court, appellant's letter brief raises the following argument for our consideration:

THE HEARING OFFICER FAILED TO SUBSTANTIATE WHAT EVIDENCE WAS DEEMED SUBSTANTIAL TO SUPPORT HIS ADJUDICATION OF GUILT AGAINST APPELLANT, WHO NEVER COMMITTED A MAJOR INFRACTION THROUGHOUT HIS ENTIRE [SEVENTEEN AND ONE-HALF] YEARS OF INCARCERATION, AND WAS SIX-MONTHS AWAY FROM SEEING THE PAROLE BOARD SUCH SHORTCOMING IS ARBITRARY, UNREASONABLE AND SHOULD WARRANT SUMMARY DISPOSITION OR AT MINIMUM, A STAY OF THE AGENCY'S DECISION.

In his reply brief, the following additional arguments are presented:

POINT I

THE STATE'S ARGUMENTS MUST FAIL AND THE FINDING OF GUILT SHOULD BE REVERSED SINCE COLVIN'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE HEARING OFFICER RENDERED A FINDING OF GUILT NOT BASED UPON SUBSTANTIAL EVIDENCE.

POINT II

THE STATE'S ARGUMENTS MUST FAIL AND THE FINDING OF GUILT MUST BE REVERSED SINCE COLVIN'S POLYGRAPH REQUEST WAS ARBITRARILY DENIED.

Our review of a DOC decision is constrained. We will only reverse when the agency's decision is found to be arbitrary, capricious, or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J.571, 579-80 (1980); see alsoIn re Taylor, 158 N.J.644, 657 (1999) (court shall uphold an agency's findings, even if it would have reached a different result, as long as sufficient credible evidence in the record exists to support the agency's conclusions).

An incarcerated inmate is not entitled to the full range of rights in a disciplinary proceeding as that enjoyed by a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). "Prisoners' rights 'are abridged to the extent necessary to accommodate the institutional needs and objectives of prisons '" Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 253 (App. Div. 2010) (citing McDonald v. Pinchak, 139 N.J. 188, 194 (1995)).

An inmate is entitled to (1) written notice of the charges at least twenty-four hours prior to the hearing, (2) an impartial tribunal, (3) a limited right to call witnesses and present documentary evidence, (4) a limited right to confront and cross-examine adverse witnesses, (5) a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed, and (6) where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Avant v. Clifford, supra, 67 N.J.at 525-33. Each of these rights was provided to Colvin and we detect no diminution of his opportunity to defend the charge to the full extent permitted by our law.

We have previously 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 Corr., 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 has 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 non-speculative 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 provided by N.J.A.C.10A:3-7.1(a)(1). If appellant's defense was that someone else planted the sharpened metal in his mattress, he had the opportunity to advance that defense at the hearing by means of competent evidence; as noted, however, he declined to do so.

We believe that appellant's adjudication of guilt was based upon substantial evidence. As noted 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." The phrase has also been described as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (2002).

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 Chem. Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J.323 (1990) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J.337 (1985)).

The ready accessibility of the homemade weapon in Colvin's mattress plainly implicates heightened security concerns that are at the core of the penal institution's drive to ensure a safe and orderly environment. The institutional need to control the inmate population and maintain order is manifest. See McDonald v. Pinchak, supra, 139 N.J. at 194; Bowden v. Bayside State Prison, 268 N.J. Super. 301, 305-06 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994) ("The need for proper control over the conduct of inmates in a correctional facility . . . cannot be doubted."). We are convinced that the determination finding Colvin in possession of that contraband albeit the product of circumstantial evidence is fairly supported in the record.

In this case there was substantial, credible evidence to support the agency's decision imposing disciplinary sanctions upon appellant for committing prohibited act *.202. Cf.Jacobs v. Stephens, 139 N.J.212, 222 (1995) (inmate's voluntary admission and witnesses' statements provided substantial evidence that defendant threatened a corrections officer with bodily harm). But see Figueroa v. N.J. Dep't. of Corr., 414 N.J. Super. 186, 190-91 (App. Div. 2010) (hearing officer's finding that inmate was attempting to possess contraband was not supported by substantial evidence).

A