MARK ROYAL 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NOT FOR PUBLICATION WITHOUT THE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-6151-09T1

MARK ROYAL,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________

April 25, 2011

Submitted April 4, 2011 Decided

Before Judges Alvarez and Ostrer.

On appeal from the New Jersey Department of Corrections.

Mark Royal, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Joseph M. Micheletti, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Mark Royal, an inmate at South Woods State Prison, appeals from a final disciplinary decision of the Department of Corrections (Department), which upheld a hearing officer's finding that Royal had entered another inmate's cell in violation of the facility's rules. See N.J.A.C. 10A:4-4.1 (enumerating prohibited acts, including .709, "failure to comply with a written rule or regulation of the correctional facility").

Senior Corrections Officer Fullerton asserted that he observed Royal enter cell number 1046 on July 25, 2010 at 1:30 p.m. Royal was assigned to cell number 1048 and was prohibited by prison rules from entering another inmate's cell. Royal was notified of the written charge the next day, and a hearing was held on July 27, 2010.

The Adjudication of Disciplinary Charge form (Adjudication) reflects what occurred at the hearing. Royal was granted a counsel substitute. He denied that he was in cell number 1046, but declined to call other witnesses, and declined to confront and cross-examine adverse witnesses. There was no indication in the Adjudication that Royal requested any additional documentary evidence, or requested the opportunity to submit to a polygraph. The hearing officer found Officer Fullerton credible, and found Royal guilty of the charge. Royal received a sanction of ten days' detention, which was suspended for sixty days. Royal signed the Adjudication, acknowledging that it accurately reflected what took place at the hearing.1

Royal filed an internal appeal on July 28, 2010, denying that he entered cell number 1046. He asserted that the accusing officer was not working in the area when the alleged infraction occurred, which could be verified by a "unit log book." He claimed that a different officer was present, who did not issue a charge against him. Royal also asked for leniency.

On July 30, 2010, the prison's assistant superintendent upheld the hearing officer's decision. The assistant superintendent explained that the reporting officer's statement was credible, and the sanction already reflected leniency. He did not address the issue of the log book.

This appeal followed. Royal presents the following point on appeal:

POINT I

HEARING OFFICER CHRISTY RALPH DID NOT HAVE SUBSTANTIAL EVIDENCE TO FIND APPELLANT GUILTY OF DISCIPLINARY INFRACTION .709 FAILURE TO COMPLY WITH A WRITTEN RULE OR REGULATION AND FAILING TO OBTAIN A SPECIAL REPORT FROM SCO GOODE, REVIEW THE UNIT'S LOG BOOK AND OR REQUEST THAT APPELLANT SUBMIT TO A POLYGRAPH AS PURSUANT TO N.J.A.C. 10A:3-7.1

We have reviewed the record and are satisfied that the evidence relied upon by the hearing officer and the assistant superintendent provided the required substantial credible evidence to support the finding of a disciplinary violation by appellant. SeeJenkins v. N.J. Dep't of Corr., 412 N.J. Super.243, 259 (App. Div. 2010) (stating that the appellate court reviews decisions on prison discipline to determine whether the findings are supported by substantial credible evidence). In this case, the hearing officer and the assistant superintendent relied upon the testimony of the senior corrections officer, who testified that he observed Royal enter another inmate's cell. The hearing officer weighed that officer's testimony against Royal's denial, and found the officer more credible. We shall not disturb that finding.

We also find without merit Royal's argument that the Department deprived him of access to evidence essential to his defense, specifically, a log book that allegedly would have enabled him to show that the accusing officer was not on duty in the area where he could have observed Royal. There is no evidence in the record that Royal requested that evidence in advance of, or at his hearing. According to the Adjudication, he did not seek documents, did not cross-examine the accusing officer, and did not seek the testimony of other witnesses, such as the custodian of the so-called log book and the officer who, he claimed, was on duty. Although Royal asserts on appeal that he asked the hearing officer to review the log book, he admits that the hearing officer's decision does not refer to that alleged request. Yet, Royal signed and acknowledged the accuracy of the Adjudication. We find no basis at this stage to reverse the Department's decision based upon the failure to consider evidence that, according to the record, Royal did not request.

Lastly, we find no merit to Royal's argument that he was wrongfully denied a polygraph examination. There is no indication in the record that he requested one. More importantly, we are unpersuaded that even if Royal had requested a polygraph examination, one would have been mandated.

The initial decision whether to subject an inmate to a polygraph examination rests with the prison administrator or designee. He or she may request a polygraph examination when "there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or . . . as part of a reinvestigation of a disciplinary charge, . . . the Administrator or designee is presented with new evidence or finds serious issues of credibility." N.J.A.C. 10A:3-7.1(a)(1), (2). A polygraph examination "is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). The decision to refuse a polygraph examination is entitled to deference and shall not be reversed unless we find it to be arbitrary, capricious or unreasonable. Id. at 24.

We have held that an inmate's request for a polygraph "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." Id. at 20. Fundamental fairness may be implicated when there is evidence of "inconsistencies in the [corrections 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." Id. at 24.

We find no serious question of credibility, or denial of fundamental fairness that should have prompted the Department, on its own, to request a polygraph examination. Royal did not cross-examine the accusing officer. He did not call other inmates to corroborate his claims. He did not call the officer he maintained was on duty when the infraction took place. A serious question of credibility is not created by a bald denial of an officer's charges. Moreover, there are no inconsistencies in the accusing officer's statements, or other extrinsic evidence to raise questions about the fundamental fairness of the proceedings. We are satisfied from our review of the record that the disciplinary proceedings were conducted in accordance with all applicable due process requirements. See Avant v. Clifford, 67 N.J. 496, 522 (1975).

Accordingly, we shall not disturb the Department's final decision.

Affirmed.

1 The acknowledgment may be signed by the inmate or counsel substitute. The signature was unaccompanied by a printed name. However, the signature appears similar to the signature on Royal's appeal form, which was accompanied by his printed name.