EUGENE SPARROW v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6319-08T2

EUGENE SPARROW,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________

September 20, 2010

Submitted July 20, 2010 - Decided

Before Judges Gilroy and Sapp-Peterson.

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

Eugene Sparrow, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Appellant, Eugene Sparrow, is an inmate currently incarcerated at East Jersey State Prison. He is serving a ten-year sentence with an eight-year mandatory period of parole ineligibility. He appeals a final determination of the Department of Corrections (DOC) adjudicating him guilty of disciplinary infraction *.203, possession or introduction of any prohibited substance, contrary to N.J.A.C.10A:4-4.1(a). We affirm.

The record discloses that on July 19, 2009, Sparrow received a visit from his wife. Following the visit, prison officials confiscated a bag of candy in which one red latex balloon containing marijuana was found. Four days later, in response to a tip that Sparrow possessed additional controlled dangerous substances, Sparrow's cell was searched while he was taking a shower. Although no drugs were found in his cell, two latex balloons were found in the front flap of boxer shorts that had been left on the floor of the shower. A third balloon was found inside a soap wrapper that was also left on the shower floor. At least one of the balloons contained a suspected controlled dangerous substance. Sparrow was then charged with two counts of committing prohibited act *.203, N.J.A.C.10A:4-4.1(a).

Sparrow was formally served with copies of the charges. He admitted to possessing the drugs confiscated on July 19 but denied possessing the drugs confiscated on July 23. He was assigned counsel substitute. His request to take a polygraph examination was denied.

A disciplinary hearing was conducted on July 29. He produced statements from three inmates, one of whom, Christian Groome, admitted that the drugs confiscated from the boxer shorts belonged to him. Another inmate, James Gurley, in his statement indicated that the showers were running continuously and were not searched. Finally, inmate Abdullah stated that he took a shower before Sparrow and, while doing so, noticed that someone had left boxer shorts in the shower and that someone from a bottom tier claimed ownership of the boxer shorts. Sparrow declined an opportunity to confront adverse witnesses. The hearing officer rejected the evidence presented by Sparrow. In doing so, she expressed that it was highly unlikely that an inmate would admit to possessing drugs that were not actually found on the inmate. She noted that the incident "occurred in detention where [inmates] are moved one at a time for showers[,]" as distinguished from detention areas "where [inmates] are free to move around." The evidence before the hearing officer also included her written request to the investigating sergeant for the number of boxer shorts issued to Sparrow and inmate Groome, who had acknowledged that the drugs were his, and how many boxer shorts each actually had at that time. In response to this request, the hearing officer was advised that inmates are allowed up to three pairs of boxers, inmate Groome had only one pair of boxers, which he was wearing, and that Sparrow had no boxers in his cell except for the pair he was wearing when he was returned to his cell. Additional evidence presented to the hearing officer included a report of the senior investigator from the Special Investigations Divisions, who noted that the drugs confiscated on July 23 were packaged in the same manner as the drugs confiscated on July 19. Further, the investigator reported that Sparrow's wife, during an interview with her on July 19, admitted that she brought Sparrow five packets of controlled dangerous substances.

The hearing officer recommended the imposition of fifteen days of detention, 365 days of administrative segregation, 365 days of loss of commutation time, 180 days of urine monitoring and permanent loss of contact visits. The hearing officer expressed that the sanctions imposed were necessary to promote a drug-free environment. Sparrow administratively appealed the guilty finding and imposition of sanctions, which were upheld. The present appeal followed.

On appeal, Sparrow contends he was denied due process "where the finding of guilt was not supported by substantial evidence pursuant to N.J.A.C.10A:4-9.15." We disagree.

Our review of a final agency decision is limited. We will only reverse when the agency's decision is 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 also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold 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).

An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). 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. Id. at 525-33.

The record shows that the disciplinary proceedings here did not violate Sparrow's due process rights. DOC provided him with a counsel substitute. He was advised of his right to call witnesses on his behalf and produced statements from those witnesses. He was also advised of his right to confront adverse witnesses but declined to do so. He and his counsel substitute had the opportunity to review and challenge the documentary evidence presented to the hearing officer. Further, a neutral hearing officer was assigned to preside over the hearing.

Nor do we conclude the fundamental fairness of the hearing was compromised by the denial of Sparrow's request for a polygraph examination. N.J.A.C. 10A:3-7.1 permits an administrator to order a polygraph examination where there are issues of credibility in connection with serious prison incidents that may, such as in this case, result in a disciplinary charge. The decision to permit a polygraph examination is solely within the discretion of the administrator or his designee. See Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005).

In Ramirez, we explained:

[A] prison administrator's discretion must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding. Impairment may be evidenced by inconsistencies in the SCO's statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf.

[Id. at 24].

In our careful review of the record, we are not of the view that denial of Sparrow's request for a polygraph "impair[ed] the fundamental fairness of the disciplinary hearing." The evidence before the administrator was sufficiently compelling to support the administrator's conclusion that there "were no issues of credibility that cannot be addressed by the Hearing Officer at [his] hearing." This evidence included (1) the fact that Sparrow admitted to possessing one bag of controlled dangerous substances confiscated on July 19, that was packaged in the same manner as the suspected drugs confiscated on July 23 in the shower area where Sparrow had just showered; (2) his wife's admission that she actually brought five bags of controlled dangerous substances to Sparrow, (3) the particular manner in which inmates in Sparrow s unit are moved in order to take showers; and (4) the procedures for searching showers prior to the inmates actually taking a shower. Given these facts, we find no abuse of the administrator's discretion in declining to order a polygraph examination.

In short, we are satisfied there is substantial credible evidence in the record to support the agency's conclusions. In re Taylor, supra, 158 N.J. at 657.