ORLANDO NIEVES 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NOT FOR PUBLICATION WITHOUT THE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-2212-04T12212-04T1

ORLANDO NIEVES #293923,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

 

Argued March 27, 2006 - Decided May 5, 2006

Before Judges Fall, C. S. Fisher and Yannotti.

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

Kevin G. Roe argued the cause for appellant (Mr. Roe, attorney; Nina C. Remson, on the brief).

Kimbery A. Sked, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Sked, on the brief).

PER CURIAM

Orlando Nieves (Nieves), an inmate incarcerated in the State correctional system, appeals from a final determination of the Department of Corrections (Department) finding him guilty of possession of drugs not prescribed by the medical staff, a prohibited act under N.J.A.C. 10A:4-4.1(a), *.203. We reverse. The record before us shows the following. On November 6, 2004, following a contact visit, Nieves was brought to the frisk room where he was subjected to a strip search. The correction officer who conducted the search found no contraband on Nieves. However, Correction Officer R. Sorrell asserted that he observed Nieves drop a bag of pills on the floor. The pills were seized, Nieves was handcuffed and placed in prehearing detention. Nieves was served with a disciplinary report, which stated that he was being charged with possession of a prohibited substance not prescribed by medical staff. The charge was investigated, found to have merit and referred to a hearing officer for adjudication.

A counsel substitute was assigned to assist Nieves at the hearing. He was informed of his use immunity rights and pled not guilty to the charge. Nieves said that the pills were not his. Nieves requested confrontation of Officers Sorrell and Ferriola. Nieves also asked that the charge be changed to .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." N.J.A.C. 10:4-4.1(a). Because this charge is not preceded by an asterisk, it is considered less serious and if the charge is upheld, results in less severe sanctions. Ibid. Nieves also asked for a polygraph test. The request was denied.

The hearing officer considered the statements of Officer Sorrell and Sergeant Popowych. In his report, Sorrell said that while he was assigned to the frisk room, he observed Nieves drop a bag on pills on the ground when he was tying his shoe. Sorrell stated that he was standing at the time on the opposite side of the room behind Nieves when he observed a bag of pills fall to the ground. He called Popowych over. Nieves was handcuffed and removed from the frisk room. There were 29 pills in the bag.

Popowych stated in his report that he was working in the frisk room when the incident occurred. Nieves was strip searched on his side of the room. Sorrell was on the other side of the room behind Nieves. At the time, about ten inmates were being searched. Popowych saw Sorrell walk from behind his table and go over to Nieves, who was bent down tying his boots. Popowych was next to Nieves and Sorrell. He said that he looked down and saw a small plastic bag containing pills. Nieves was handcuffed and escorted out of the area.

The pills were determined to be heart medication. The bag containing the pills measured two and one-half inches by two and one-half inches. The medication did not match any medication prescribed by the medical staff for Nieves.

The hearing officer recorded Sorrell's answers to the questions posed by Nieves and his counsel substitute. Sorrell said that he did not recall the officer who conducted the strip search of Nieves. He stated that he did not know how many inmates were being strip searched at the time Nieves was searched. Sorrell also said that he observed the pills after Nieves was searched. Sorrell stated, "[Nieves] bent down to tie his shoe. I saw something drop." Sorrell said that he came around the desk and the officers to see what the item was. Nieves was about to leave the room and Sorrell told him to stop. Sorrell was asked whether it was possible for an officer to overlook something like the pills during a strip search and Sorrell replied that it was possible "to do anything during a strip search if you are not paying attention."

The hearing officer also recorded the answers to questions directed to Ferriola. Ferriola said that he did not conduct the search of Nieves. Ferriola was asked to describe the strip search procedure. Ferriola stated that the inmate is undressed and steps forward. The inmate is asked questions concerning dentures. He is required to open his mouth, separate his cheeks, lift up his genitals, bend over and separate his buttocks. If the inmate is overweight, he must separate any areas of fat. He must bend down and shake his hair, go through his clothes and shake them as well. Ferriola stated that, if nothing is found, the inmate is permitted to dress.

The hearing officer found Nieves guilty of the *.203 charge. She noted in her adjudication report that the confrontation did not prove that the medication belonged to someone other than Nieves. In addition, the confrontation did not establish "beyond any doubt" that the pills could have been brought in by someone else. The hearing officer noted that the pills were prescribed medication but the prison's record showed that they had not been prescribed for Nieves and therefore he had no reason to have them. The hearing officer stated, "Inmate could not prove that the pills found were not in his possession or on his person." The hearing officer imposed the following sanctions: ten days detention, 90 days in administrative segregation, 120 days of loss of commutation time, 365 days of urine monitoring and permanent loss of contact visits. The loss of contact visits was imposed pursuant to the Department's Zero Tolerance Drug/Alcohol Policy. N.J.A.C. 10A:4-5.1(c)(1); N.J.A.C. 10A:1-2.2.

On November 16, 2004, Nieves filed an appeal with the administrator of the prison. Nieves asserted that the evidence did not support the charge. He argued that the hearing officer erroneously required him to establish that he was not in possession of the pills. Nieves further asserted that the investigator had not thoroughly investigated the charge because the officer who searched him had not been questioned. Moreover, Nieves argued that he should have been permitted to take a polygraph test because the issue involved was clearly one of credibility. On November 17, 2004, the administrator denied the appeal and upheld the hearing officer's decision.

Nieves filed a notice of appeal from the Department's final decision on January 3, 2005. Nieves moved on April 27, 2005 for assignment of counsel, a remand and for a stay of the sanctions pending appeal. We granted the motion for a remand and denied all other relief. We ordered the administrator to determine whether a polygraph examination should be given and to reconsider the final decision in the event a polygraph exam was ordered.

The administrator issued a supplemental decision concerning the polygraph request on June 15, 2005. The administrator stated:

Correction Officers Sorrell and Ferriola were made available at your request for confrontation and cross-examination at your hearing. These officers were in the room for confrontation and were cross-examined. This confrontation and cross-examination did not persuade the Hearing Officer that the medication did not belong to you, as you alleged.

Further, it is the Disciplinary Hearing Officer's function to assess both the demeanor of those involved and the content of their testimony in determining credibility. I note that there is no new evidence being presented that would necessitate a credibility review beyond what occurred at the hearing.

In closing, after reviewing your polygraph request, I fail to see how a polygraph would add to what is in the record. Therefore, it is for all of the reasons discussed that your request for a polygraph examination is denied.

Nieves appeals and raises the following contentions: 1) the hearing officer's decision is not supported by substantial credible evidence; 2) the hearing officer misapplied legal standards of proof; 3) the corrections officials failed to disclose evidence crucial to the defense; and 4) the sanctions are unreasonable and disproportionate to the offense.

We are convinced that the final determination must be reversed. First, we are convinced that the administrator erred in denying Nieves' request for a polygraph examination. Under N.J.A.C. 10A:3-7.1(a)(1), a polygraph examination may be requested by the administrator if "there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge," or if the administrator finds "serious issues of credibility" as part of a reinvestigation. N.J.A.C. 10A:3-7.1(a)(2). Here, the charge was clearly a serious one. Moreover, there are "serious issues of credibility."

Nieves asserts that the pills found in the frisk room after his search did not belong to him. Nieves argues that a package of pills of the size recovered would in all probability have been discovered during his strip search. Sorrell has stated that he was standing behind Nieves when he observed the pills fall to the floor. No other officer corroborated Sorrell's assertion. Moreover, it appears that Sorrell was on the other side of the room at the time.

Thus, Sorrell's statements were in direct conflict with Nieves' assertions. In our view, this factual dispute constitutes a "serious issue[] of credibility" and therefore Nieves should have been afforded the opportunity for a polygraph examination to substantiate his assertion that the pills found on the floor of the frisk room did not belong to him.

In addition, the hearing officer's decision indicates that she may have erroneously placed the burden of proof upon Nieves to establish that the pills were not his. Under the Administrative Code, a finding of guilt on a disciplinary charge must be based on "substantial evidence that the inmate has committed the prohibited act." N.J.A.C. 10A:4-9.15(a). See also Avant v. Clifford, 67 N.J. 496, 530 (1975). Nieves was charged with possession of drugs that were not prescribed for his use by the medical staff. The burden of proving that charge rests with the Department not the inmate.

The Department argues that the hearing officer implicitly found that the correctional facility presented substantial credible evidence that Nieves possessed the medication and thereafter shifted the burden to Nieves to rebut the charge. We are unconvinced by this assertion.

The hearing officer's statement does not indicate that the burden of proof on the charge had been carried by the Department and thereafter the burden had shifted to Nieves to counter the charge. Rather, a fair reading of the hearing officer's report suggests that rather than requiring the Department to prove the charge, Nieves was required to disprove it. If there is a finding that Nieves committed a prohibited act, the adjudication report should clearly reflect that the Department had the burden of proving the charge and met that burden with substantial evidence.

We therefore reverse and remand for further proceedings. Nieves shall be afforded an opportunity for a polygraph examination. Thereafter, a new hearing shall be held before a new hearing officer, who shall consider the results of the polygraph along with any other evidence that the Department presents in support of the charge.

Nieves should again be afforded an opportunity to confront and cross-examine the State's witnesses if deemed by the hearing officer to be "necessary for an adequate presentation of the evidence, particularly when serious issues of credibility are involved." N.J.A.C. 10A:4-9.14(a). Previously, Nieves sought confrontation only of Sorrell and Ferriola. He may request that the hearing officer permit confrontation and cross-examination of other persons who provided statements or evidence that is relied upon by the State in support of the charge. In addition, Nieves may request the opportunity to call other witnesses and present additional documentary evidence in his defense. See N.J.A.C. 10A:4-9.13.

In the adjudication report, the hearing officer shall make a thorough and complete record of any confrontation and cross-examination and shall detail the evidence upon which the hearing officer relied in making the determination. N.J.A.C. 10A:4-9.15(b). The hearing officer shall fully explain the factual basis for any credibility findings. The report shall make clear that the burden of proof rests with the Department, not the inmate.

If the hearing officer finds that there is substantial evidence to establish that Nieves was in possession of the heart medication on November 6, 2004, the hearing officer also shall consider whether the charge should be modified to prohibited act .210, the "possession of anything not authorized for retention or receipt by an inmate or not issued to him or through regular correctional facility channels." N.J.A.C. 10A:4-4.1(a).

Nieves argued below that possession of the heart medication at issue here does not qualify as a *.203 offense because it is not "drugs, intoxicants or related paraphenalia." It appears that if Nieves had been found to have committed prohibited act .210, he would not be subject to sanctions under the Zero Tolerance Drug/Alcohol Policy. N.J.A.C. 10A:4-5.1(c)(1).

The hearing officer shall explain whether possession of any drug is a prohibited act under *.203 or whether a *.203 charge is warranted only when an inmate possesses a drug that has an intoxicating effect. If the latter is the case, the hearing officer shall determine whether the heart medication found in the frisk room on November 6, 2004 can have an intoxicating effect.

 
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

(continued)

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A-2212-04T1

May 5, 2006