PHILLIP PALMER v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3925-08T3

PHILLIP PALMER,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________

October 8, 2010

Submitted: July 20, 2010 Decided:

Before Judges R.B. Coleman and C.L. Miniman.

On appeal from a Final Decision of the New Jersey Department of Corrections.

Phillip Palmer, appellant pro se.

Paula T. Dow, Attorney General of New Jersey, attorney for respondent (Lewis A. Scheindlin, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Phillip Palmer (Palmer), an inmate at Northern State Prison, appeals from final agency action of the Department of Corrections finding him guilty of prohibited act *.009, possession of electronic equipment not authorized for retention, and *.202, possession of a weapon in violation of N.J.A.C. 10A:4-4.1(a). We now affirm in part and remand in part.

On January 12, 2009, Senior Corrections Officer Sgt. J. Cusano (Cusano) conducted a search of Palmer's cell and found a cell phone and a thirteen-and-one-half inch sharpened weapon in the cell's light fixture. Palmer and his cellmate denied any knowledge of these items. Both were charged with disciplinary infractions *.009 and *.202. The charges were served on Palmer on January 14, 2009. The inmate pled not guilty and stated "no statement." The charges were found to have merit and were referred to "headquarters" for further action at that time. Substitute counsel was requested.

On January 16, 2009, Cusano prepared a special report regarding the incident in which he recorded that the light cover was removed using the security bit located "in Center" and that Lt. Mark Tully (Tully) was present in the unit at the time of the search, although not involved in it. The reason for the search was a tip "received from the area lieutenant specifically stating that a cellular phone was hidden in the light fixture in [Palmer's cell]." He further indicated that he had no information pertaining to maintenance or repairs in the cell and that he took no photographs of the light fixture or the area at the time the items were found. The disciplinary hearings scheduled for January 15 and January 20, 2009, were postponed to obtain further information. On January 21, 2009, Tully prepared a memo to Sgt. Carlos Perez informing him that the information he received about Palmer and his cellmate "was obtained from a confidential informant that I have utilized on numerous occasions. This informant[']s information was and has always been very specific, with a[n] 85% to 90% accuracy rate." On January 22, 2009, the date on which the hearing was to proceed, Palmer's paralegal requested a polygraph test on his behalf, expressing that Palmer felt that such a test was the only way to prove that he had no knowledge of the weapon or the cell phone. That request was transmitted the following day to Administrator L. Glover, who denied the request on January 23, 2009.

The Courtline hearing was held on January 26, 2009. The hearing officer granted Palmer's request for the assistance of counsel substitute, and Palmer pled not guilty to both charges. At the hearing, counsel substitute presented defendant's written statement. Defendant asserted in his statement that he did not become involved in the type of conduct with which he was charged; he had been charge-free for forty-two months; and he had been on the wing for thirty-five months without incident. He asserted that he had too much to lose to have things like that in his cell, specifically, 2344 days of "comp time for starters."

He stated S.I.D. asked him if he felt he was set up and he said that he did. He pointed out that this happened after he witnessed a corrections officer "doing something that isn't acceptable in this institution." He asserted that Cusano entered his cell with his hands in his coat and asked him and his cellmate to step out. He further indicated that Cusano and Tully had a great deal of difficulty in trying to force open the light and had to take a break from their efforts before returning to their task. Palmer heard them talking, and then they came out and handcuffed him and his cellmate. He stated that Cusano walked around with a shank in his inside pocket, only pulling it out at "Medical." He asked the hearing officer to look at the weapon because it was not something that is easily found on the compound. Palmer stated that he asked Cusano to fingerprint the weapon and to pull up the cell log on the phone. He asked the hearing officer to "pull the Administrator for this" so he could have a fair chance to fight the charges.

With respect to the *.009 charge, the hearing officer indicated on the adjudication-of-disciplinary-charge form that Palmer stated that "he don't get involved in things like that. I have had eighteen cellies. I don't watch them. Leniency. It's not mine." He also noted that Palmer's paralegal requested leniency because the items were not Palmer's. The hearing officer considered Palmer's written statement and his request for a polygraph. The officer then made the following findings:

Inmate pleaded not guilty. Inmate stated the items found were not his. Both cellmate Palmer & Jimenez denied the contraband. Inmate Palmer has been in his cell since 2006 (according to computer data)[.] All inmates are responsible for their property & living quarters. Based on reports this charge is upheld. Inmates did not want to [sic] a confrontation and did not ask for witness statements from each other, or anyone else. Charge upheld[.]

Having found Palmer guilty of the charge, the hearing officer imposed the following sanctions: fifteen days detention; 365 days of administrative segregation; 365 days loss of commutation time; 185 days loss of telephone privileges; and fifteen days loss of recreation privileges. The hearing officer expressed that the sanctions were necessary because the charges "fall under the zero tolerance policy." He also noted that cell phones are not permitted in the institution and that neither inmate claimed responsibility.

With respect to the *.202 charge, the hearing officer found as follows:

Inmate pleaded not guilty. Inmate stated the items were not his. The weapon was found in the cell that Palmer has occupied since 2006. All inmates are responsible for their property & living quarters. Based on reports this charge is upheld[. T]he weapon found was over 12" long. The blade was sharpen[ed] & could pose a life & death situation for other inmates & staff. Charge is upheld[.]

The hearing officer imposed the following sanctions on the *.202 charge: 365 days administrative segregation; 365 days loss of commutation credit; and thirty days loss of recreation privileges.

Palmer filed an administrative appeal from the imposition of sanctions and requested leniency. His appeal was denied. The hearing officer's decision was upheld because there was compliance with N.J.A.C. Title 10A on inmate discipline, and the hearing officer's decision was based upon substantial evidence. This appeal followed.

Palmer raises the following issue on appeal:

APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED BY THE DISCIPLINARY SGT. PEREZ, ALSO BY THE (DHO) MS. G. NOLLEY AND BY THE N.S.P. ADMINISTRATOR'S [SIC] MR. GLOVER AND MR. SAPP. AS A RESULT, APPELLANT'S RIGHTS WERE EMPINGED [SIC] UPON DURING THE WHOLE APPEAL PROCESS.

Palmer contends that he was not given twenty-four-hour notice of the alleged violation. His inmate paralegal was ineffective for failing to file his appeal on time, which he contends violated prisoner's rights under Avant v. Clifford, 67 N.J. 496, 519 (1975), and N.J.A.C. 10A:4-9.9. Next, he contends that his paralegal was not very supportive throughout the case in that he never pushed for due process and failed to timely appeal the adjudication. Additionally, there was a violation of N.J.A.C. 10A:4-9.2 in that his counsel substitute was not permitted reasonable time to speak with Palmer and was not given twenty-four hours to prepare Palmer's defense. Palmer contends that he was denied a polygraph, which was permitted by N.J.A.C. 10A:3-7.1. Finally, he contends that his sanctions and those imposed on his cellmate were disparate. He also urges that the superintendent's verbal confrontation with Palmer's family forced him to deny this appeal when it ought to have been granted.1 As a result, he urges that he is entitled to have the adjudication expunged or reversed due to these due process violations.

The scope of our review of final agency action is limited. N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant supra, 67 N.J. at 530 (requiring substantial evidence to support an inmate disciplinary sanction). In reviewing an adminis-trative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). It is not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

With respect to Palmer's claim that his counsel substitute was ineffective in that he failed to push for due process and failed to timely appeal the adjudication, defendant must demonstrate that the errors were serious and caused prejudice to defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 57-58 (1987). Defendant was not prejudiced by his counsel substitute's failure to timely appeal the adjudication. Palmer's subsequently filed appeal was accepted, and a final adjudication upheld the hearing officer's determinations.

Defendant has also failed to demonstrate that his counsel was ineffective in failing to secure Palmer's due process rights. Palmer was afforded all of the rights provided by Avant. He received notice of the charges against him at least twenty-four hours prior to the hearing, the hearing officer was an impartial tribunal, Palmer was permitted to put on a defense in which he pled not guilty, and Palmer and his counsel substitute made statements during the hearing. Palmer was offered the opportunity to call witnesses and to confront adverse witnesses but declined the opportunity. Both Palmer and his substitute counsel were given an opportunity to review the adjudication sheets and the evidence utilized by the hearing officer. Palmer's counsel substitute signed the adjudication report on line 16 indicating that the information on the form accurately reflected what took place at the hearing. Thus, Palmer received all of the procedural due process to which he was entitled under Avant, supra, 67 N.J. at 525-33.

With respect to Palmer's claim that N.J.A.C. 10A:4-9.2 was violated because his counsel substitute was not permitted reasonable time to speak to him and was not given twenty-four hours to prepare his defense, the record of the adjudicatory hearing does not suggest that counsel substitute or Palmer sought a continuance in order to allow counsel substitute to develop a defense and confer with Palmer. Because this issue seems not to have been raised at the hearing, we will not consider it on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding that appellate courts will decline to consider new issues on appeal).

With respect to the polygraph, N.J.A.C. 10A:3-7.1(a) provides that an administrator may order a polygraph examination (1) "when there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge" or (2) "[a]s part of a reinvestigation of a disciplinary charge, when [an administrator] is presented with new evidence or finds serious issues of credibility." The administration of a polygraph is solely committed to the discretion of the administrator. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005). There we held that:

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. Impairment may be evidenced by inconsistencies in the SCO's 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.

[Ibid.]

Here, Palmer called no witnesses on his own behalf and declined to confront the adverse witnesses. We are satisfied that the administrator's decision to deny a polygraph test did not impair the fundamental fairness of the disciplinary hearing and, thus, did not constitute an abuse of discretion.

We turn to defendant's final contention that his sanctions and those imposed on his cellmate were disparate. When initially imposed, both Palmer and his cellmate received similar sanctions. However, when his cellmate appealed, the sanctions were reduced by half, yet when Palmer appealed, his sanctions were upheld. The record does not disclose the basis for the distinction in treatment. Palmer had been infraction free for a significantly longer period of time than his cellmate. Both inmates had equal access to the light in their cell. There is nothing in the record before us that would support the disparate sanctions. As a result, we remand the issue of the sanctions to the administrator for reconsideration. If the sanctions are upheld, the administrator shall determine the facts supporting the disparate treatment. We do not retain jurisdiction.

Affirmed in part and remanded in part.

1 There is no evidence of this in the record and we will not consider it on appeal. See Cipala v. Lincoln Tech. Inst. 179 N.J. 45, 52 (2004) (declining to consider plaintiff's permanent disability assertions on appeal because the issue had not been litigated, and there was no evidence of permanent disability in the record).