WILLIE BRAND v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-2016-09T1

A-2110-09T2

WILLIE BRAND,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

______________________________________

KYIEEM NEWSOME,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

____________________________________

Submitted March 1, 2011 Decided April 13, 2011

Before Judges Wefing and Payne in A-2016-09T1.

Before Judges Wefing and Baxter in A-2110-09T2.

On appeal from the New Jersey Department

of Corrections.

Willie Brand and Kyieem Newsome, appellants pro se.

Paula T. Dow, Attorney General, attorney

for respondent (Andrea Silkowitz, Assistant

Attorney General, of counsel; Marisa Slaten,

Deputy Attorney General, on the brief in A-2016-09;

Charles S. Cohen, Deputy Attorney General, on the

brief in A-2110-09).

PER CURIAM

Kyieem Newsome and Willie Brand are inmates in the custody of the Commissioner of the Department of Corrections. Each has appealed from an order adjudicating him guilty of a disciplinary infraction. Because these appeals arise out of the same factual complex and present the same legal issue, we consolidate them for purposes of this opinion.

Both men were assigned to the Albert Wagner Youth Correctional Facility, and specifically Tier A-2, where, on October 19, 2009, there was a collective refusal by those on the tier to leave their cells and line up for lunch. This led to an emergency code #22 being called; two teams and a K-9 unit responded to the scene. Newsome and Brand were identified by the corrections officer on duty as instigators of the demonstration, and they were both charged with disciplinary infractions under *.253, engaging in or encouraging a group demonstration, and *.306, engaging in conduct that disrupts or interferes with the security or orderly running of the facility.

Prior to the disciplinary hearings, both Newsome and Brand were transferred to East Jersey State Prison, where the same counsel substitute was assigned to represent them. According to the papers presented to us in connection with these appeals, the hearing officer assigned to the matter approached the counsel substitute and informed him that if the two agreed to waive their right of confrontation with respect to the corrections officer who had identified them as instigators of the demonstration, he would reduce by one-half the sanctions each man faced, that is, rather than 30 days in detention, two years in administrative segregation, and two years loss of commutation credits, each would receive 15 days in detention, one year in administrative segregation and one year loss of commutation credit. Newsome and Brand elected to accept this offer and agreed not to pursue confrontation of the officer who identified them as instigating the demonstration. At the conclusion of the hearing, however, each received the maximum sanction--30 days in detention, two years in administrative segregation and two years loss of commutation credits. Each has appealed, and each raises the identical issues for our consideration.

POINT I THE DECISION BELOW MUST BE REVERSED SINCE THE FINDING OF GUILT WAS NOT BASED UPON SUBSTANTIAL EVIDENCE IN THE RECORD AND APPELLANT'S PROCEDURAL DUE PROCESS RIGHTS WERE VIOLATED

POINT II APPELLANTS WERE DENIED DUE PROCESS AND THE EFFECTIVE ASSISTANCE OF COUNSEL SUBSTITUTE WHEN [THE HEARING OFFICER] TOLD COUNSEL SUBSTITUTE TO CONVINCE APPELLANTS TO WAIVE THEIR RIGHTS TO CONFRONTATION/CROSS EXAMINATION AS PART OF A CONDITIONAL AGREEMENT TO REDUCE THEIR PENAL EXPOSURE

POINT III THE FINDING OF GUILT MUST BE REVERSED BECAUSE THE ADMINISTRATOR DENIED THE APPELLANT'S REQUEST FOR A POLYGRAPH EXAMINATION

We turn first to appellants' third point, that their request for a polygraph examination was improperly denied. As to this, we find no error. Inmates do not have an automatic right to challenge a disciplinary charge through the results of a polygraph. Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 24 (App. Div. 2005). On the record presented to us, we have no basis to conclude that the denial of their requests was arbitrary, capricious or unreasonable. Accordingly, we reject this aspect of their appeal.

The Department does not address, in its responding brief, appellants' substantive contention that the hearing officer solicited their waiver of the right of confrontation in return for a promise of a lesser sanction. It merely notes that the administrative record does not record such an offer. We, of course, have no way of knowing whether the hearing officer transmitted such an offer to appellants, but the absence of a formal memorialization does not, by itself, persuade us that it did not occur.

It is settled that inmates are not entitled to the full panoply of rights afforded to one charged with a criminal offense. Avant v. Clifford, 67 N.J. 496, 522 (1975). They are, however, entitled to procedural fairness. Ibid. We have previously recognized that "[a] proceeding in which the right of confrontation and cross-examination has been unduly curtailed, or the accused unreasonably limited in his access to witnesses in his favor, lacks both the form and substance of a fair hearing." Jones v. Dep't of Corrs., 359 N.J. Super. 70, 78 (App. Div. 2003). We have no hesitancy in concluding that a hearing at which an inmate has been induced by false promises to waive his right of confrontation is similarly deficient.

We stress, however, as noted earlier, that we make no factual finding that appellants' contentions are accurate. We are satisfied, however, that they are entitled to a hearing, before another, independent hearing officer, at which they may attempt to establish the accuracy of their allegations. If that hearing officer concludes that appellants were, indeed, unfairly induced to surrender their right of confrontation, they shall receive an entirely new disciplinary hearing, at which their right of confrontation shall be restored.

Reversed and remanded for further proceedings.