JOSE PEREZ v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0190-06T20190-06T2

JOSE PEREZ,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted October 22, 2007 - Decided November 7, 2007

Before Judges Parrillo and Sabatino.

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

Jose Perez, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy

Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Jose Perez, an inmate currently confined at South Woods State Prison, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited acts *.708, refusal to submit to a search; *.013, unauthorized physical contact; and *.306, conduct which disrupts the orderly running of the institution, in violation of N.J.A.C. 10A:4-4.1(a). On appeal, Perez argues that he was denied due process because the hearing officer failed to review a camera tape and because Perez was refused a polygraph examination. Perez also contends that the finding that he refused to submit to a search lacks a factual basis. We are satisfied that the final agency decision should be affirmed, as appellant was afforded all the process due, and the findings of guilt are all supported by substantial credible evidence.

On May 2, 2006, while incarcerated at East Jersey State Prison, Perez was observed in the prison yard snorting what appeared to be drugs. Consequently, Senior Corrections Officer (SCO) R. Service attempted to strip search Perez in the "Tie Too" area of the prison. During the search, as Perez removed his left sock, a folded and taped piece of paper fell to the floor. SCO Service attempted to pick up the paper, but Perez pushed him away, picked up the piece of paper and swallowed it. Perez then refused numerous direct orders from Service to spit out the piece of paper, thus preventing Service from inspecting the paper. As a result of Perez's actions, the prison riot bell was activated, which caused a corresponding delay in the prison yard movement. Based on his conduct, Perez was charged with committing prohibited acts *.002, "assaulting any person," *.306 and *.708.

The *.002 charge was subsequently modified to an .013 charge, "unauthorized physical contact." Perez pled guilty to the *.708 charge, not guilty to the .013 charge, and entered no plea to the *.306 charge. As to the former charge, Perez acknowledged that he put something in his mouth, and his counsel substitute further explained that "[h]e couldn't comply after they grabbed and choked him. He complied up to that point. He did put something in his mouth." On the .013 charge, Perez denied that he touched SCO Service. His counsel substitute reiterated this claim and maintained that Service choked Perez until he was unconscious. Perez did not make a statement as to the *.306 charge, and counsel substitute merely argued that any sanctions imposed on this charge be combined with those imposed on the others.

In adjudicating Perez guilty of the *.708 charge, the hearing officer concluded:

Perez changed not guilty plea to guilty to Refusing to Submit to a Search[,] admitting "I put something in my mouth." Reports indicate[d that] during [a] strip frisk of I/M Perez, Perez dropped contraband[,] pushed SCO Service out of the way and swallowed [the contraband]. I/M [Perez] was ordered to spit it out and aggressively refused and would not allow [corrections officers] to handcuff him. Staff reports are clear [that] I/M did not comply with the search once I/M dropped what appeared to be contraband. I/M plea[,] statements [and] reports used to support charge.

The hearing officer recommended sanctions of 10 days' Detention, 90 days' Administrative Segregation, 60 days' loss of commutation time, 90 days' loss of recreation privileges, and permanent loss of contact visits.

Finding Perez guilty of the .013 charge, the hearing officer stated:

Perez denies guilt to [charge of] unauthorized physical contact. Per SCO Service[,] I/M Perez pushed SCO away in order to pick up contraband I/M [Perez] dropped during strip search. Perez stated[,] "I never touched the [officer]." Paralegal stated[,] "he never put his hands on him." 5-5-06 hearing postponed for confrontation with SCO Service. Confrontation hearing conducted 5-8-06 and SCO Service confirmed he was 'pushed' by I/M Perez. 'Push' was witnessed by SCO Alvarez. Rely on confrontation hearing and staff reports to support [a finding that] I/M Perez did push SCO Service which is unauthorized physical contact.

On this charge, the hearing officer recommended sanctions of 15 days' Detention, 90 days' Administrative Segregation and 60 days' loss of commutation time.

Lastly, the hearing officer adjudicated Perez guilty of the *.306 charge, stating, "Perez entered no plea to conduct which disrupts. Paralegal requested sanctions to be combined. [Perez] was found guilty of unauthorized physical contact and refus[al] to submit to [a] search when [he] return[ed] from [the] yard. Staff reports used to support charge." The hearing officer combined the *.306 charge with the *.708 and .013 charges for the purpose of imposing sanctions.

Perez filed an administrative appeal and, for the first time, requested a polygraph examination. The DOC upheld the hearing officer's decision. After Perez filed an appeal with this court, the DOC moved for a remand because Perez's request for a polygraph examination had not been addressed below. We granted the motion and, on remand, the DOC concluded that Perez was not entitled to a polygraph because there was substantial, credible evidence to support Perez's guilt, and Perez failed to offer any evidence at the adjudication hearing that called into question the credibility of the State's witnesses.

After reviewing the record in light of the arguments advanced by the parties, we are satisfied that the agency's decision is "supported by substantial credible evidence in the record," Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citation omitted), and appellant was provided adequate due process protections. See McDonald v. Pinchak, 139 N.J. 188, 193-95 (1995); Avant v. Clifford, 67 N.J. 496, 525-33 (1975).

As to the denial of Perez's request for a polygraph, N.J.A.C. 10A:3-7.1(a) provides that

[a] polygraph examination may be requested by the Administrator [of the prison] . . .:

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 . . . is presented with new evidence or finds serious issues of credibility.

[N.J.A.C. 10A:3-7.1(a)(1), (2).]

However, "'[a]n 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) (quoting N.J.A.C. 10A:3-7.1(c)). Moreover, N.J.A.C. 10A:3-7.1 "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). Rather, "an inmate's right to a polygraph is conditional and 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." Id. at 20. As to fundamental fairness, the Ramirez court held that

[i]mpairment may be evidenced by inconsistencies in the [officers'] statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf. Conversely, fundamental fairness will not be [a]ffected when there is sufficient corroborating evidence presented to negate any serious question of credibility.

[Id. at 24.]

Here, there was no impairment of fundamental fairness in denying the polygraph request. The .013 charge contested by Perez was based upon the reports of SCO Service that Perez pushed him out of the way when Service attempted to pick up the piece of paper that fell out of Perez's sock during a search of Perez. Indeed, Service's confrontation responses were consistent with his reports and there was no extrinsic evidence challenging the credibility of Service's account that Perez pushed him. Therefore, we are satisfied that in adjudicating the charge, there was no issue of credibility that could not be determined on the record amassed at the hearing, and the denial of Perez's request for a polygraph did not compromise the fundamental fairness of the disciplinary process.

We further conclude there was no due process violation in not reviewing the videotape of the incident in the prison yard where Perez was observed snorting suspected drugs. In the first place, Perez never raised this issue at the adjudication hearing. More significant, the videotape was irrelevant to the charges being adjudicated. Perez was not charged with either possession or use of drugs, or for any other conduct that would be reflected on the videotape. Rather, he was charged with actions occurring during the search conducted in the "Tie Too" conference room, namely, his refusal to submit to the search and his unauthorized physical contact with SCO Service. As such, the videotape depiction was of no evidential value and the failure to review it implicates no due process concerns.

We remand the matter for vacation of the "permanent loss of contact visits" feature of the sanctions imposed, as represented by the DOC. We affirm the DOC's determination in all other respects.

Among the arguments Perez raises in his appeal is he should not have been sanctioned with a permanent loss of contact visits pursuant to the DOC's "Zero Tolerance" Drug Policy because the State Laboratory test of his urine sample indicated that it was negative for marijuana. Pursuant to N.J.A.C. 10A:4-5.1(c)(10), permanent loss of contact visits is an appropriate sanction for an inmate, like Perez, who is found guilty of committing prohibited act *.708. However, that sanction can only be imposed for that charge if "the inmate has been given advance verbal notice that the search is being conducted due to reasonable suspicion related to the possession, sale or use of prohibited substances . . . and the advance notice has been documented on . . . [the] Disciplinary Report." N.J.A.C. 10A:4-5.1(c)(10). Because there is no indication in the Disciplinary Report that Perez was provided with the required advance notice, the State has represented that it will rescind the loss of contact visit sanction that was imposed on the *.708 charge.

(continued)

(continued)

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A-0190-06T2

November 7, 2007