EARL SMITH 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NOT FOR PUBLICATION WITHOUT THE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-0

EARL SMITH,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________

December 23, 2013

Submitted November 18, 2013 - Decided

Before Judges Kennedy and Guadagno.

On appeal from the New Jersey Department of Corrections.

Earl Smith, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Defendant Earl Smith, an inmate currently serving a sixteen-year term, appeals from the final agency determination of the New Jersey Department of Corrections (DOC) affirming the disciplinary sanctions imposed for committing various prohibited acts. In his pro se brief, Smith presents the following arguments:

point one

issues that should be raised on appeal as a matter of justice and great public interest within this court['S] jurisdiction.

point two

appellant was denied procedural due process [DUE] to the purposeful untimely delay in the hearing process.

point three

appellant was entitled to a polygraph examination.

point four

the respondent violated the appellant['s] right to fundamental fairness by having three different hearing officers conduct hearing in violation of appellant['S] due process rights.

point five

there was not substantial evidence to find appellant guilty.

For the reasons that follow, we reject these arguments and affirm.

On April 12, 2011, during a routine search of Smith's cell, Senior Corrections Officer T. Togno found and confiscated a television and a Walkman radio. When Smith, who was not present during the search, was informed of the seizure of his electronics, he became angry and screamed obscenities at Togno and Officer K. Myers, who was also present. Smith refused to comply with Myers's order to sit down and advanced toward Myers in a manner that caused him concern for his safety. Myers then physically restrained Smith causing Officer W. Hannah, who was observing the confrontation, to call for the assistance of other officers. As a result, all institutional activities were temporarily suspended.

On April 13, 2011, Smith was charged with committing the following prohibited acts in violation of N.J.A.C. 10A:4-4.1(a): *.005,1 threatening another with bodily harm or with any offense against his or her person or his or her property; .210, possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels; and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility.

The charges were referred to a hearing officer and Smith was provided the assistance of counsel substitute. Smith admitted to committing the .210 infraction, but challenged the other two charges. The hearing officer found Smith guilty and imposed the following sanctions: for the *.005 charge, five days detention, with credit for time served, 250 days of administrative segregation, and 250 days loss of commutation time; for the *.306 charge, fifteen days detention, 250 days of administrative segregation, and 250 days loss of commutation time; and for the .210 charge, confiscation of the seized items.

Smith administratively appealed the decisions of the hearing officer and the finding was upheld by the Associate Administrator.

Smith first challenges the procedural aspects of the hearing process and claims the delay in scheduling the hearing denied him due process. We disagree.

Pursuant to N.J.A.C. 10A:4-9.8(c), inmates like Smith, who are placed in pre-hearing detention, "shall receive a hearing within three calendar days of their placement in Prehearing Detention . . . unless there are . . . unavoidable delays or reasonable postponements." The hearing officer is obliged to consider the reason for the delay, the length of delay, whether the inmate has been prejudiced, and the seriousness of the alleged infraction in deciding whether to dismiss the charges as a sanction for any violation of the three-day limit set forth in N.J.A.C. 10A:4-9.8(c). N.J.A.C. 10A:4-9.9(a).

A copy of the institutional charge was served on Smith on April 13, 2011, the day following the incident. Smith's initial hearing was scheduled for April 15, 2011, but was postponed twice after Smith requested a polygraph examination. After Smith's request for a polygraph was denied on April 19, 2011, the hearing was postponed four more times to accommodate Smith's request to confront the three witnesses against him, Myers, Togno and Hannah. The hearing was completed on May 4, 2011.

The delay was entirely attributable to Smith's request for a polygraph and for witness confrontation. Smith does not allege any prejudice as a result of the delay and the postponements were made at his request and for his benefit. We find his claim that he was denied due process as a result of the delay to be without merit.

Similarly, we reject Smith's claim that he was entitled to a polygraph examination. An inmate does not have an unqualified right to a polygraph examination. 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 provides that "[a] polygraph examination may be requested by the Administrator or designee:

1. When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or

2. As part of a reinvestigation of a disciplinary charge, when the Administrator or designee is presented with new evidence or finds serious issues of credibility.

"This administrative code section 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." Ramirez v. Dep't. of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). The issue before us is whether the denial of Smith's request impaired the fundamental fairness of the disciplinary proceeding. Id. at 24. We are satisfied that there was sufficient corroborating evidence from the observations of the three corrections officers to negate any serious question of credibility.

Smith next claims the participation of three different hearing officers, DiBenedetto, Morales, and Ralph, violated our decision in Ratti v. Dep't of Corr., 391 N.J. Super. 45 (App. Div. 2007), where we held, "when the evidentiary phase of a hearing has begun but is adjourned for any reason, and the original hearing officer is unavailable on the date the hearing resumes, the evidentiary phase of the hearing must begin anew before the replacement hearing officer." Id. at 48.

The record indicates that the participation of Hearing Officers Morales and DiBenedetto was limited to postponing the hearing dates on April 15, 2011, April 18, 2011, and April 19, 2011. Hearing Officer Ralph postponed three other dates and ultimately conducted the disciplinary hearing on May 4, 2011.

Unlike the hearing in Ratti, which was begun by one hearing officer and concluded by another, Hearing Officer Ralph conducted the entire hearing. She considered the statements of Smith and his counsel substitute, as well as the statements of Officers Myers, Togno and Hannah, and the confrontation questions posed to them by Smith. All credibility determinations were made by Hearing Officer Ralph and she imposed the disciplinary sanctions.

Smith's remaining arguments lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

1 Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions. See N.J.A.C. 10A:4-5.