AL-QUADDIM SAYLES 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NOT FOR PUBLICATION WITHOUT THE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-4646-10T3

AL-QUADDIM SAYLES,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________

April 10, 2012

Submitted: March 28, 2012 - Decided:

Before Judges Axelrad and Ostrer.

On appeal from the New Jersey Department of Corrections.

Al-Quaddim Sayles, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Roshan D. Shah, Deputy Attorney General, on the brief).

PER CURIAM

Al-Quaddim Sayles, an inmate at Northern State Prison, appeals from a final determination of the Department of Corrections (DOC) that he violated *.009, possession of an electronic communications device, namely a cell phone, as set forth in N.J.A.C. 10A:4-4.1.1 The hearing officer imposed 15 days of detention, 365 days of administrative segregation, 365 days loss of commutation time, 180 days loss of telephone privileges, and a permanent loss of contact visits. Following an administrative appeal, an assistant superintendent upheld the decision of the hearing officer. Appellant then filed an appeal of the agency's decision.

Appellant argues: (1) he was improperly denied a polygraph examination; (2) counsel-substitute was ineffective; (3) there was not substantial evidence in the record to sustain the charges; (4) his liberty interests were infringed by the conduct of the officers barging in on him while he was on the toilet; and (5) his due process was violated by the DOC's delay in deciding his administrative appeal and in deviating from N.J.A.C. 10A:4-11.4(b)'s conflict-of-interest safeguards for disciplinary reinvestigations. We reject appellant's arguments and affirm.

The charges arose from an incident on March 6, 2011, when Sergeant Rafael Rodriguez and Corrections Officer Recruit (COR) Jose Silva were conducting a routine tour of appellant's dormitory. According to both officers, as they entered the room, they overheard appellant conversing with someone while seated on a toilet behind a curtain. They pulled back the curtain and observed appellant with a cell phone in his hand, which he promptly flushed down the toilet.

Appellant was charged with the offense, and received notice of the charges on March 7, 2011. Appellant was assigned counsel-substitute. The hearing was held on March 28, 2011, after having been adjourned several times to obtain a witness statement and because appellant requested to confront the officers. Appellant's request for a polygraph examination was administratively denied with the explanation that the hearing officer could address any credibility issues.

At the hearing, appellant relied on his prior written statement that he was using the toilet when inmates on the wing announced an early head count, and when the officers entered the bathroom they simply heard him cursing to himself in displeasure. According to appellant, before he could finish wiping himself properly, Sgt. Rodriguez entered the stall and directed him to get up and put his hands on the wall. Appellant denied he was in possession of "any contraband." Appellant also relied on inmate Level Burnett's statement that appellant was praying and when appellant did not respond to the sergeant's inquiry of what he was doing, he was locked up. The hearing officer permitted appellant to confront Sgt. Rodriguez and COR Silva by submitting a list of written questions, which the hearing officer then posed to the officers.

The hearing officer found appellant guilty of the charge, noting appellant neither presented any evidence to refute the officers' reports, nor did he do so by his confrontation. Appellant promptly filed an administrative appeal, contending the confrontation answers from the officers were inconsistent, the introduction of the officers' reports as the sole evidence rendered the proceedings fundamentally unfair and violated his due process rights, and the decision was not supported by substantial evidence.

On April 11, 2011, the administrative superintendent upheld the hearing officer's decision, explaining that all procedural safeguards were provided, the hearing officer's decision was based upon substantial evidence, and the sanction was proportionate to the offense. This appeal ensued.

We reject appellant's argument that he was denied due process because he did not receive the polygraph examination he requested. An inmate's mere request for a polygraph examination shall not be sufficient cause, in and of itself, for granting the request. Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997); N.J.A.C. 10A:3-7.1(c). In addition, a polygraph examination is clearly not required on every occasion that an inmate denies the disciplinary charge against him, but rather the request 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, 23-24 (App. Div. 2005). Impairment of fundamental fairness may be evidenced by inconsistencies in the officers' statements or a statement by another inmate on the inmate's behalf, but "will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility." Id. at 24.

In appellant's case, the record does not show any issues of credibility that could not have been determined at a disciplinary hearing. Appellant submitted his own statement and submitted a statement by another inmate. He also requested and received confrontation of the officers. Thus, the absence of a polygraph examination did not compromise the fundamental fairness of the disciplinary process.

Appellant was provided with counsel-substitute. See N.J.A.C. 10A:4-9.12(a) (providing that inmates who are charged with an asterisk offense may request representation by counsel-substitute). According to appellant, counsel-substitute was ineffective because he failed to object to the officers viewing appellant's questions before cross-examination and failed to advise appellant of his right to postpone confrontation until he received an answer on the polygraph request. The record, however, does not support appellant's contention that the officers viewed his questions prior to cross-examination. Moreover, appellant's disciplinary hearing was held over two weeks after the administrator denied his request for a polygraph examination.

Our review of the DOC's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole, will we reverse such decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (stating that a court must uphold an 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). Here, in determining guilt, the hearing officer relied on the eyewitness accounts of the officers to substantiate the charge, and their credibility remained undisturbed on cross-examination. Specifically, in response to appellant's question about whether he made a mistake in believing appellant was having a conversation, Sgt. Rodriguez answered, "No doubt in my mind it was a conversation." He also stated he saw appellant with a black cellular phone in his hand. In response to appellant's questions, COR Silva stated that it "sounded like a conversation" and it "sounded like [appellant] was talking to someone else." COR Silva also stated he saw appellant with a black cellular phone in his hand. In contrast, appellant's statement and the statement of inmate Burnett were inconsistent; appellant claimed he was cursing while Burnett claimed he heard appellant praying on the toilet. Moreover, the record does not support appellant's claim that the officers barged in on him while he was defecating and then fabricated the charges as a cover up to impose authority for their poor judgment, thereby infringing on appellant's liberty interests. As there is sufficient credible evidence in the record to support the agency's adjudication of guilt of the disciplinary infraction, there is no basis to disturb that determination.

We also are satisfied appellant was afforded the procedural due process required by Avant v. Clifford, 67 N.J. 496, 525-30 (1975). Though the DOC did not respond to appellant's administrative appeal within seventy-two hours, see N.J.A.C. 10A:4-11.7(a)(1), appellant was not prejudiced by the delay, and received a fair and unbiased review of the hearing officer's determination by the DOC. Appellant's conflict-of-interest claim is factually unsupported because no reinvestigation was recommended or conducted.

Affirmed.

1 DOC Inmate Disciplinary Regulations classify "asterisk offenses" as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4-4.1. See also Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div. 2007).