HENRY STEVENSON v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2359-06T22359-06T2

HENRY STEVENSON,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

______________________________________________________________

 

Submitted September 26, 2007 - Decided

Before Judges Wefing and R. B. Coleman.

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

Henry Stevenson, 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

Inmate Henry Stevenson appeals from the final agency decision of the Department of Corrections (DOC), dated November 1, 2006, which upheld the October 27, 2006, decision of the hearing officer finding Stevenson guilty of violating prohibited act *.202, possession or introduction of a weapon. On appeal, Stevenson claims that he requested and was wrongly denied a polygraph test. We affirm the decision of the DOC.

For a conviction of two counts of burglary, Stevenson is currently serving a five-year, four-month and sixteen-day sentence, with a two-year and six-month mandatory minimum prison sentence. On October 16, 2006, a corrections officer discovered a homemade weapon in Stevenson's cell during a routine cell search. The weapon consisted of a metal rod approximately five inches in length with a cloth handle secured by a rubber band. This weapon was concealed in the cardboard tube of a toilet paper roll. When questioned about the instrument, both Stevenson and his cellmate denied being the owner. Both inmates were charged with committing prohibited act *.202, and an investigation was immediately conducted. Stevenson pled not guilty, but did not give a statement or request to have any witness testimony. He did request counsel substitute, and that request was granted. The hearing on this matter concluded on October 27, 2006.

At the hearing, the hearing officer reviewed the disciplinary reports, incident report, photograph of the weapon, Seizure of Contraband Report, inmate disciplinary records, polygraph request and other documents. Stevenson was offered the opportunity to cross-examine adverse witnesses but declined to do so. Thereafter, the hearing officer found Stevenson guilty of the charge and recommended sanctions of fifteen days detention, three-hundred days administrative segregation, three-hundred days loss of commutation time and confiscation of the contraband.

On October 29, 2006, Stevenson filed an administrative appeal. The Assistant Superintendent upheld the charge and sanctions on November 1, 2006, and this appeal ensued.

On review, we must show deference to a final agency decision, and it should be upheld unless the agency's action was arbitrary, capricious, unreasonable or unsupported by credible evidence. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987). The inmate carries the burden of demonstrating that the ruling of the DOC was arbitrary, capricious or unreasonable. See McGowen v. New Jersey State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

In disciplinary hearings, prisoners are entitled to limited procedural safeguards. Avant v. Clifford, 67 N.J. 496, 522 (1975). Stevenson asserts that his limited due process rights were violated by the denial of his request for a polygraph test. We reject that assertion. The use of polygraph examinations is addressed in N.J.A.C. 10A:3-7.1(a). That regulation states: "[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 . . . ." N.J.A.C. 10A:3-7.1(a). We have observed that "[t]his administrative code 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 Corrections, 382 N.J. Super. 18, 23-24 (App. Div. 2005). The mere request of an inmate will not be sufficient to warrant granting the test. Johnson v. New Jersey Dep't of Corrections, 298 N.J. Super. 79, 83 (App. Div. 1997). 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 would compromise the fundamental fairness of the disciplinary process." Ramirez, supra, 382 N.J. Super. at 20. "[A] prison administrator's discretion must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding." Id. at 24.

On the record of this appeal, we perceive no improper exercise of discretion by the agency in denying the inmate's request for a polygraph test. All of the officer statements and officer testimony were consistent. An officer found an unauthorized weapon in the cell occupied by Stevenson and his cellmate. Both men denied ownership or knowledge. Stevenson did not contest the validity of the search or the officer's testimony. He only claims that a polygraph test would clear him of the charge; however, he has failed to demonstrate that the denial of his request for a polygraph negated the fundamental fairness of the disciplinary proceeding. Id. at 26.

We are satisfied that Stevenson received all of the procedural safeguards to which he was entitled. He received more than twenty-four hours notice of the charge prior to the hearing; the hearing was timely and conducted by a member of the agency hearing officer staff; counsel substitute was assigned; he had an opportunity to make a statement, and he was given the choice to cross-examine witnesses. See Avant, supra, 67 N.J. at 525-30, 533. The DOC's finding was supported by substantial credible evidence in the record.

Affirmed.

 

In the criminal context, possession may be actual, constructive, or joint.

A person has actual possession of 'an object when he has physical or manual control of it.' [State v. Spivey, 179 N.J. 229, 236 (2004)] (citing State v. Brown, 80 N.J. 587, 597, 404 A.2d 1111 (1979)). Alternatively, a person has constructive possession of 'an object when, although he lacks "physical or manual control," the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.' Id. at 237, 844 A.2d 512 (quoting State v. Schmidt, 110 N.J. 258, 270, 548 A.2d (1988)). Two persons have joint possession of an object when they 'share actual or constructive knowing possession of' that object.

[State v. Morrison, 188 N.J. 2, 14 (2006).]

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A-2359-06T2

December 14, 2007