DAVID WILSON 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NOT FOR PUBLICATION WITHOUT THE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-2567-04T32567-04T3

DAVID WILSON,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

__________________________________________________

 

Submitted November 2, 2005 - Decided January 11, 2006

Before Judges Weissbard and Winkelstein.

On appeal from a Final Decision of the

New Jersey Department of Corrections.

David Wilson, appellant pro se.

Peter C. Harvey, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Kimberly A.

Sked, Deputy Attorney General, on the brief).

PER CURIAM

A hearing officer found David Wilson, a New Jersey State Prison inmate, guilty of assault, N.J.A.C. 10A:4-4.1(a) *.002, and imposed administrative sanctions of fifteen days detention and ninety days administrative segregation. On his appeal, the Associate Administrator of the institution affirmed the adjudication of guilt but suspended the administrative sanctions for sixty days. This appeal followed.

The adjudication arose out of an incident on November 17, 2004 when a Senior Corrections Officer (SCO) saw Wilson throw a cup of coffee at another inmate through the food port of Wilson's cell, hitting the other inmate in the head. Wilson claimed that the incident was just an accident. Wilson's cellmate supported his version of the incident, but the recipient of the coffee claimed that Wilson did throw the cup at him. The hearing officer sided with the SCO and the victim in finding Wilson guilty.

In his pro se brief, Wilson argues that the charge was fabricated, the evidence was insufficient, his due process rights were violated, his request for a polygraph test was not honored, and the investigating officer provided a biased input during his investigation. We have carefully reviewed these contentions in light of the record and applicable law. We find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D), (E). Nevertheless, we add the following brief comments.

Contrary to Wilson's argument, we conclude that the record contains substantial, credible evidence supporting the adjudication of guilt. McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); N.J.A.C. 10A:4-9.15(a). Further, while Wilson did ask the Administrator for a polygraph examination, the mere request is not equivalent to the right to have the test. Johnson v. Dep't of Corrs., 298 N.J. Super. 79, 83 (App. Div. 1997). While the Administrator may order such a test when presented with new evidence on appeal or when there are "serious issues of credibility," N.J.A.C. 10A:3-7.1(a), the matter is left to his broad discretion. In this case, given the strong evidence against Wilson and the implausibility of his own version, we cannot say that the Administrator abused his discretion in denying Wilson's request.

Wilson's claims that he was denied the right to be present at his hearing and denied the right "to call witness [sic] and present evidence" are without support in the record. Wilson was provided counsel substitute, inmate Duncan Cade, who signed the Adjudication Report as being accurate. The report states that Wilson was offered confrontation but declined. It also contains a statement of Wilson's version and indicates that his counsel substitute asked for dismissal of the charge based on lack of evidence. The Report contains nothing to support Wilson's claim that he was not present. Significantly, in his administrative appeal, Wilson made no mention of the hearing being conducted in his absence or that he was denied confrontation and the right to call witnesses, omissions that fatally undercut his claims. Accordingly, we reject these arguments.

 
Affirmed.

(continued)

(continued)

4

A-2567-04T3

 

January 11, 2006