AGUSTIN GARCIA 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NOT FOR PUBLICATION WITHOUT THE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-1876-10T4

AGUSTIN GARCIA,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________

May 9, 2013

Submitted December 18, 2012 Decided

Before Judges Lihotz and Kennedy.

On appeal from the New Jersey Department of Corrections.

Agustin Garcia, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Agustin Garcia, an inmate at New Jersey State Prison (NJSP), appeals from a final agency decision of the Department of Corrections imposing disciplinary sanctions against him. The Department sustained a hearing officer's finding that appellant had committed prohibited act .256 by refusing to obey an order of any staff member, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

Here are the facts. On October 14, 2010, appellant was in the Big Recreation Yard, Quad Two at NJSP. Senior Corrections Officer (SCO) Pagan was working in a caged secured post when he ordered appellant to leave the yard because appellant's recreation period had ended. Appellant did not leave the yard, however, and SCO Pagan had to repeat the order five times, all of which defendant ignored. SCO Pagan notified the Area Four Sergeant of appellant's refusal to obey his order. Yard activity was stopped, breaking the normal routine of the facility. Appellant was one of many inmates who refused to leave the yard as ordered. After several minutes, the inmates began to gather at the exit gate. The inmates then went back to their units, and disciplinary charges were issued.

Appellant was charged with disciplinary infraction .256 and assigned a counsel substitute. After numerous postponements, an adjudication hearing was held over the course of two separate days, at which two different hearing officers presided. Appellant offered a thirteen-year-old report that he suffered from "mild" hearing loss, but submitted no further evidence of his alleged impairment. The second hearing officer concluded that appellant was guilty of prohibited act .256. Appellant then administratively appealed the hearing officer's decision, and Assistant Superintendent Frank Pedalino upheld the ruling of the hearing officer.

Appellant appealed the decision, and on July 6, 2011, we ordered a remand of the adjudication hearing in order to provide appellant a hearing in accordance with Ratti v. N.J. Dep't Corrections, 391 N.J. Super. 45 (App. Div. 2007)1 because the first hearing did not begin anew after the unavailability of the original hearing officer, and the Department was instructed to conduct a new hearing where all the evidence would be heard by the same fact finder. Thereafter, the hearing was postponed several times because appellant requested confrontation with SCO Pagan and also requested a polygraph. The polygraph request was denied. Upon conclusion of the re-hearing, appellant was again found guilty of prohibited act .256.

Because the hearing officer attempted to link the two hearings rather than conduct a new, independent hearing as required, the Department requested another remand. On January 11, 2012, this Court granted the request for remand so that the Department could provide appellant with a re-hearing that was separate and distinct from his prior hearing on the disciplinary charge.

The second remand hearing was held and appellant pled not guilty and declined the assistance of a counsel substitute. He presented testimony of inmate Jorge Quintilla, who stated that he was playing chess with appellant in the yard and that neither he nor appellant heard the guard's orders. Appellant also cross-examined SCO Pagan, who testified that appellant was given an order five times to leave the yard and that appellant refused.

After considering the testimony and the SCO's report, the hearing officer determined that appellant had, in fact, refused SCO Pagan's orders and found appellant guilty of the infraction. The hearing officer imposed the following sanctions: a 90-day loss of recreational privileges and a 90-day loss of television privileges, which was suspended for 60 days.

Appellant administratively appealed the hearing officer's decision, and Assistant Superintendent James Barnes upheld the ruling of the hearing officer, having determined "the evidence supports the charge[.]" This appeal followed.

In his brief submitted to this court, appellant variously contends that the hearing officer was biased, the findings of guilt were not supported by substantial evidence, and, on the whole, he was denied due process. We reject these arguments.

The scope of our review of an agency decision is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or is unsupported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "'Substantial evidence' means 'such evidence a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).

We disagree with appellant's argument that the Associate Administrator adopted findings by the hearing officer that were not based on substantial credible evidence. The record before us amply supports the conclusions of the hearing officer. SCO Mitchell stated "he gave the order 'yard is complete' about [five] times and this group of inmates [including appellant] refused to depart the Big Yard . . . ." This specific assertion of fact in this circumstance constitutes substantial credible evidence, as found by the hearing officer, and the Department could properly adopt the hearing officer's findings.

Further, we reject appellant's argument that the denial of his request for a polygraph examination denied him any due process right. An inmate does not have an unconditional right to a polygraph examination. Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). An inmate's request for a polygraph is not sufficient cause, standing alone, for granting the request. Ibid. A polygraph request should only be approved when "there are issues of credibility regarding serious incidents or allegations" or "when the Administrator . . . is presented with new evidence or finds serious issues of credibility." N.J.A.C. 10A:3-7.1(a). The limits imposed by that regulation are "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, supra, 382 N.J. Super. at 23-24.

In analyzing the requirement of "serious issues of credibility" contained in N.J.A.C. 10A:3-7.1(a)(2), we observed that "inconsistencies in the [officers'] statements or some other extrinsic evidence involving credibility" would be circumstances in which a polygraph examination should be considered. Id. at 24. Here, we agree with Department's contention that the record is devoid of any issues of credibility that could not have been determined at a disciplinary hearing. The .256 charge was based upon the eyewitness account of SCO Pagan. In adjudicating the charge, there was no issue of credibility that could not be determined at a hearing, and the denial of appellant's request for a polygraph did not compromise the fairness of the disciplinary process. Furthermore, as the Department correctly maintains, appellant had an opportunity to cross-examine SCO Pagan, and thereby challenge his version of the facts. Hence, we reject appellant's contention that the denial of his request for a polygraph examination undermined the fairness of the proceedings.

The remainder of appellant's arguments lack sufficient merit to be discussed in this written opinion. R. 2:11-3(e)(1)(E).

1 Ratti, supra, held that "when the evidentiary phase of a hearing has begun but is adjourned for any reason, and the original hearing officer is unavailable on the date the hearing resumes, the evidentiary phase of the hearing must begin anew before the replacement hearing officer." 391 N.J. Super. at 48.