JESUS CINTRON v. NEW JERSEY DEPARTMENT OF CORRECTIONS 2011 -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3248-09T3

JESUS CINTRON,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________________

May 3, 2011

 

Submitted January 25, 2011 - Decided

Before Judges Wefing and Koblitz.

On appeal from a Final Decision of

the Department of Corrections.

James S. Friedman, attorney for appellant.

Paula T. Dow, Attorney General, attorney

for respondent (Lewis A. Scheindlin, Assistant

Attorney General, of counsel; Jennifer S. Hsia,

Deputy Attorney General, on the brief).

PER CURIAM

Jesus Cintron is an inmate in the custody of the Department of Corrections. He appeals from a Final Decision of the Department finding him guilty of disciplinary infraction *.009, possession of electronic equipment not authorized for use by an inmate. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Cintron was an inmate at Northern State Prison on the date in question, October 25, 2009, and assigned to a minimum security dormitory area with fifteen other inmates, all of whom shared a communal bathroom. Shortly before noon, Cintron, together with several other inmates, was in the bathroom preparing for a visit. A corrections officer, Sergeant Plummer, ordered the inmates to line up to be searched. In the subsequent report he prepared, Sergeant Plummer wrote that he "observed I/M Cintron . . . go into the bathroom and try to flush a cell phone in the toilet." The cell phone did not go down, and Sergeant Plummer retrieved it and Cintron was taken into custody. A search of his person and his dorm area did not lead to the discovery of any other contraband. Cintron signed a form acknowledging seizure of the cell phone.

Counsel substitute was assigned to represent Cintron at the disciplinary hearing, the conduct of which was adjourned on a number of occasions to permit Cintron to prepare. Although his request for a polygraph was denied, he was afforded his right of confrontation, and his counsel substitute prepared an extensive list of questions for Sergeant Plummer. His answers, together with the various investigative reports, were all submitted to the hearing officer. The hearing officer concluded that the charge had been substantiated and imposed sanctions. Cintron appealed to the prison administrator, who upheld the finding of guilt but modified the sanctions. This appeal followed.

On appeal, Cintron presents the following arguments for our consideration.

POINT I THE DECISION OF THE HEARING OFFICER AS AFFIRMED BY PRISON ADMINISTRATION MUST BE REVERSED BECAUSE IT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

 

POINT II THE DECISION BELOW MUST BE REVERSED BECAUSE THE DENIAL OF CINTRON'S REQUEST FOR A POLYGRAPH WAS UNREASONABLE UNDER THE CIRCUMSTANCES.

 

We reject these contentions and affirm.

We note first the standard governing our review of these arguments. An appellate court should not overturn a final administrative decision unless it is arbitrary, capricious or unreasonable. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). The agency's findings should be affirmed if they "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole . . . with due regard also to the agency's expertise." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotations omitted). It is particularly appropriate that we recognize such expertise when dealing with matters of prison administration. Pryor v. Dep't of Corr., 395 N.J. Super. 471, 476-77 (App. Div. 2007). We are, nonetheless, called upon to make a "careful and principled consideration of the agency record and findings. While our scope of review is limited, we cannot be relegated to a mere rubber-stamp of agency action." Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (citations omitted).

We also note the settled law that inmate disciplinary appeals are not part of the criminal justice system and that inmates are not afforded the panoply of procedural rights afforded to an individual defending against a criminal charge. In Avant v. Clifford, 67 N.J. 496, 525-30 (1975), the Supreme Court summarized the rights available to an inmate charged with a disciplinary infraction. These include receiving written notice of the charges at least twenty-four hours in advance of the hearing; an impartial tribunal to decide the charges; a limited right to call witnesses and present documentary evidence; a limited right of confrontation and cross-examination; a written decision, noting the reasons for the decision and the evidence relied upon; and, when appropriate, the assistance of counsel substitute.

The record reveals that Cintron received all of these rights. The hearing thus comported with the requirements of procedural due process for inmate disciplinary matters.

Cintron complains on appeal that he requested that an examination be performed of the cell phone in question, specifically, the numbers stored in its memory, as well as the billing records for the phone, to determine if any of the numbers matched those of persons he knew. The record before us, however, contains no indication that Cintron made such a request, and his counsel substitute, when signing the adjudication sheet, made no indication that Cintron's ability to marshal a defense had been hampered by lack of such investigation.

In Cintron's brief, he argues that the decision of the hearing officer, and the subsequent decision of the prison administrator, is not supported by substantial credible evidence. He notes that Sergeant Plummer said at the hearing that he was outside the bathroom supervising the inmates lining up when he heard something fall into the toilet and heard the sound of it flushing. He argues that the fact that Sergeant Plummer did not see Cintron actually drop the phone into the toilet, combined with what he terms the unlikelihood of Sergeant Plummer hearing the sounds of the phone dropping into the toilet and the flush, means there was not substantial evidence to support the finding of guilty. While the hearing officer could have drawn those conclusions, he was not compelled to do so, and we cannot override his assessment of the evidence he heard.

Cintron's second point on appeal is that his request for a polygraph should have been granted and that the denial affected the fundamental fairness of the proceedings. Inmates do not have an unqualified right to a polygraph exam. N.J.A.C. 10A:3-7.1(a). Whether and when to grant the request rests in the sound discretion of the administrator. This decision

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 [correction officer'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. Conversely, fundamental fairness will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility.

 

[Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005).]

 

G

uided by that standard, we are unable to conclude that the administrator abused his discretion when he denied Cintron's request for a polygraph.

The order under review is affirmed.