VICTOR GONZALEZ v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2912-05T12912-05T1

VICTOR GONZALEZ,

Plaintiff-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent-Respondent.

____________________________________________________

 

Submitted October 12, 2006 - Decided October 27, 2006

Before Judges Stern and A.A. Rodr guez.

On appeal from a final decision of the

Department of Corrections.

Victor Gonzalez, appellant pro se.

Stuart Rabner, Attorney General, attorney

for respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Susan M. Scott,

Deputy Attorney General, on the brief).

PER CURIAM

Victor Gonzalez appeals from the final administrative determination of the Department of Corrections ("DOC"), entered November 18, 2005, finding that he violated N.J.A.C. 10A:4-4.1*.005, threatening another person, and imposing sanctions. He argues:

POINT I THE HEARING OFFICER'S DECISION WAS NOT BASED

ON SUBSTANTIAL EVIDENCE AS REQUIRED BY THE

STANDARDS ON INMATE DISCIPLINE.

POINT II THE ADMINISTRATOR ERRED IN NOT GRANTING THE

APPELLANT'S REQUEST FOR A POLYGRAPH TEST.

According to the complaint of SCO Maretz, at about 12:30 p.m. on November 8, 2005:

I/M Gonzalez was exiting his unit for mess. While approaching the star he did motion to this writer by dragging his forefinger across his neck from ear to ear and then finished by pointing directly to this writer. *005 was issued.

In addition to the complaining officer's report, another officer filed an incident report which stated:

On the above date and time I/M Gonzalez #217829 was walking towards the star area for the mess or rec movement. I/M Gonzalez put his finger to his throat and simulated a cutting motion across his throat and then pointed to SCO Maretz. The inmate was then hand cuffed and escorted to Kett without further incident.

In his defense, Gonzalez asserted that Officer Maretz had been harassing him, and he feared retaliation for complaining to Associate Administrator Power four days before the event occurred.

Before the hearing, appellant's counsel substitute wrote to the hearing officer:

Mr. Gonzalez request[s] a polygraph test. This request is based on the fact that Mr. Gonzalez and Officer Maretz have had problems. Specifically, Off. Maretz has been har[]assing I/M Gonzalez and I/M Gonzalez spoke to Mr. Power, Assc. Admn., on 11-4-05 about Off. Maretz. I/M Gonzalez feared that he was going to be retaliated against and Mr. Power agreed that it was possible. Mr. Gonzalez submits that Off. Maretz lied and fabricated the charge to retaliate against him. Clearly, an issue of credibility exist[s]. Hence this request.

In making his request for a polygraph test, appellant also wrote to the Administrator as follows:

I write to you requesting to have any video that cover[s] the civilian entrance to the window visit area reviewed, on the date of 7-11-2005, the day I had a screen visit and the day before I got locked up for this charge. In this video C.O. R. Maretz can be observed making a hand gesture that [either] means I get you later or wait[], (a back and forth motion with his right hand). Consequently the next day I was locked up, the said of[f]icer claiming I maid [sic] a cut throat gesture with my hand. I have requested a polygraph test. As you are aware[,] my family contacted you, and I spoke to Mr. Power[] this very month a few days ago, concerning this of[f]icer[] just before this happened. In the past I have written 4 to 5 remedy requests against this officer, the latest within the last two months, or three ago. I respectfully request that in the interest of justice you grant my request. Thank you for any assistance in this matter.

The request for a polygraph was denied by the Administrator because "[a]ny issue(s) of credibility can be addressed by the hearing officer at the hearing." It was also reported to the hearing officer that there was "no video of the area" in question, as "[c]ustody staff monitors this area at all times."

At the hearing, counsel substitute contended that the charge:

was in retaliation for a complaint sent to Mr. Power. He said that he should try to transfer and Mr. Power claims C/O with "Retaliate."

The decision of the hearing officer was "upheld" on the final administrative review because "the decision of the Hearing Officer was based upon substantial evidence." It appears that the decision was made by Associate Administrator Power, the person to whom appellant claimed he had complained about Officer Maretz.

The DOC asserts that the polygraph issue was not raised in the administrative appeal and should not be considered by us. However, the request was denied by the Administrator before the hearing, and we see no basis for precluding appellant's contention on our review. We nevertheless reject the contention.

All due process rights were accorded to appellant at the hearing, see Avant v. Clifford, 67 N.J. 496, 522-543 (1975), and given the two incident reports of the officers, we find sufficient evidence to uphold the disposition. While we have emphasized the need for actual confrontation when the complaint is based on conduct directed to a corrections officer, Decker v. Department of Corrections, 331 N.J. Super. 356, 359 (App. Div. 2000), here there was no request by appellant for "in person" confrontation or cross-examination. Further, as there was no inconsistency between the officer's reports and those of appellant's witnesses, we can find no abuse of discretion by the Administrator's denial of a polygraph examination. N.J.A.C. 10A:3-7.1(a)(c); Ramirez v. Dept. of Corrections, 382 N.J. Super. 18, 23-24 (App. Div. 2005). One of appellant's witnesses said he "couldn't see what happened," and the other said only that he had seen appellant stopped and "lock[ed] up."

We nevertheless vacate the final administrative determination and remand for further consideration and decision by the Administrator. Appellant complained, or says he complained, to the Associate Administrator about the conduct of Officer Maretz prior to the event in anticipation of "retaliation," and appellant felt the Associate Administrator should be interviewed or consulted about the charges as part of the investigation. Under these circumstances, we do not believe that the Associate Administrator should have decided the appeal. In his opinion, the Associate Administrator did not address the subject of his involvement, and significantly, he did not reject the references in the record and adjudication form to a discussion with him. Cf. In re Carberry, 114 N.J. 574, 584-86 (1989) (holding that mere familiarity with facts through administrative duties not basis for disqualification; no disqualification where record detailed prior role of agency head who imposed discipline).

Accordingly, we remand for further proceedings consistent with this opinion. We leave to the Administrator whether additional proceedings should be conducted or if and how the record should be further developed.

Remanded for further proceedings.

 

There is no name on the officer's incident report, but it is attached to the "adjudication form," in the appendix of both briefs. Also attached were the "witness statement[s]" of appellant's two witnesses.

(continued)

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A-2912-05T1

October 27, 2006