DONALD OLIVER 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NOT FOR PUBLICATION WITHOUT THE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-2584-07T12584-07T1

DONALD OLIVER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________

 

Submitted November 18, 2008 - Decided

Before Judges Fuentes and Chambers.

On appeal from a Final Agency Decision of

the Department of Corrections.

Donald Oliver, appellant pro se.

Anne Milgram, Attorney General, attorney

for respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel;

Kyle K. Bradley, Deputy Attorney General,

on the brief).

PER CURIAM

Donald Oliver, an inmate serving a ten-year sentence for carjacking, appeals from the decision of the Department of Corrections (DOC) finding that he committed disciplinary infraction *.005, threatening another with bodily harm or with an offense against his or her person. In this case, the DOC alleges that on October 27, 2007, appellant threatened Senior Corrections Officer (SCO) John Hughes.

Appellant received sanctions in the form of fifteen days detention, 365 days loss of commutation time, and 365 days administrative segregation in the stabilization unit. At the recommendation of the hearing officer, the DOC directed that the fifteen days detention be served consecutive to another fifteen days of detention imposed in connection with disciplinary infraction *.011, possessing or distributing materials deemed a security risk. N.J.A.C. 10A:4-4.1. Although appellant is not appealing the substance of this second conviction, he nevertheless argues that, in ordering that the detention periods be served consecutive to each other, the DOC violated the provisions of N.J.A.C. 10A:4-10.2.

The DOC alleges that, on the day in question, SCO Hughes ordered appellant to leave the mess line because he was attempting to go through the line for a second time. According to SCO Chester Ogden, after Hughes's command he heard appellant say to another inmate: "I've had it with this officer [in an apparent reference to Hughes]. The time to get him is now. Come on. Let's go." As appellant made these remarks, Ogden saw him point at the direction where Hughes was standing. Appellant was immediately placed in pre-hearing detention and charged with disciplinary infraction *.005.

Appellant pled not guilty to the charge, requested and was granted the assistance of counsel substitute, and named inmate Davis as a potential witness. After several postponements, the hearing officer considered the evidence gathered and heard appellant's testimony denying that he made any threats to Hughes or anyone else. Appellant also questioned SCO Ogden's ability to hear a statement he allegedly made while standing 40 to 50 feet away, in a noisy mess line. Although afforded the right to call witnesses on his behalf, appellant declined. The hearing officer found sufficient evidence to sustain the charge against appellant.

Appellant now appeals arguing that Ogden's statements alleging that he heard him utter the alleged threats was unreasonable and not worthy of belief. He claims that he is the victim of "the duo of Hughes and Ogden [who] constructed a fictitiously framed set of circumstances in reprisal for a perceived and incorrectly inferred snub." He also challenges the DOC's authority to impose consecutive sanctions of fifteen days of detention. Finally, he argues that he is entitled to a polygraph to corroborate his credibility.

Our review of decisions made by administrative agencies is limited. Such decisions carry "a strong presumption of reasonableness." B.D. v. Div. of Med. Assistance & Health Servs., 397 N.J. Super. 384, 390 (App. Div. 2007), (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div.), aff'd, 135 N.J. 306 (1994)). The decision must be upheld unless it is arbitrary, capricious or unreasonable, and not otherwise supported by substantial evidence in the record. New Jersey S.P.C.A. v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 578 (1980). Here, we are satisfied that the DOC's findings are supported by the record. We are equally satisfied that appellant was afforded all of the procedural due process rights he is entitled to receive. Sheika v. N.J. Dep't of Corr., 395 N.J. Super. 266, 276 (App. Div. 2007).

The hearing officer was entitled to accept the credibility of SCO Ogden's account as to what he heard appellant say in connection with SCO Hughes. With respect to the polygraph, appellant's mere request is not dispositve. N.J.A.C. 10A:3-7.1(c). As we made clear in Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 20 (App. Div. 2005), an inmate's request for a polygraph "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." Appellant has not presented sufficient evidence to satisfy this standard.

Finally, although N.J.A.C. 10A:4-10.2 does not specifically authorize the imposition of consecutive detention sanctions, the regulation nonetheless limits the maximum detention days that can be imposed to non-chronic offenders to thirty days. N.J.A.C. 10A:4-10.2(b). Here, the total number of detention days imposed was within the regulatory limit. We thus discern no basis to disturb the sanction imposed.

Affirmed.

 

Appellant's cell was searched and his personal property inventoried. It was during this investigation that the officers discovered the prohibited security materials. Again, although appellant contested the charge before the hearing officer, he is not appealing from this violation.

See N.J.A.C. 10A:4-6.2.

(continued)

(continued)

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A-2584-07T1

December 22, 2008