PONTELL BRYANT 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NOT FOR PUBLICATION WITHOUT THE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-0

PONTELL BRYANT,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

______________________________________

May 9, 2014

Submitted May 5, 2014 - Decided

Before Judges Kennedy and Guadagno.

On appeal from the New Jersey Department of Corrections.

Pontell Bryant, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Alex J. Zowin, Deputy Attorney General, on the brief).

PER CURIAM

Pontell Bryant, an inmate of New Jersey State Prison, appeals from a final administrative decision of the Department of Corrections (DOC) imposing sanctions against him for committing prohibited act *.011, possession or exhibition of anything related to a security threat group (STG),1 in violation of N.J.A.C. 10A:4-4.1(a).

On August 2, 2012, Senior Correction Officer J. Gunter was processing Bryant's property when he discovered ten handwritten documents containing numerous references to the Bloods street gang. From his review of the documents, Officer Gunter determined that they appeared to relate to an STG, and forwarded them to the New Jersey State Police Special Investigations Division (SID) for further analysis. Later that day, Bryant was served with a disciplinary report containing the nature of the charge and notice that the matter was referred to a hearing officer.

SID Investigator S. Harrison, an expert in gang identification, determined the seized materials are related to the Bloods, an STG recognized by the DOC. As Harrison's report is brief, we reproduce it in its entirety:

Upon reviewing the material it was noted that the typed letter contained information directly related to the STG Bloods which is an identified STG in the NJDOC. #1 the author directly references the word "Blood." Within the context of the letter, the author uses this word when discussing various lessons and rules when making reference to the Blood set SMM which is a recognized STG in the NJDOC. #2 the author directly makes reference to rank/status (triple O.G,/O.G) within the gang/set. These ranks/status are commonly used when describing a member who is affiliated with the STG Bloods. #3 the author makes direct reference to the Blood set Sex Money Murder (SMM) as well as the overall leader "Pistol Pete Rollack." #4 the author also makes direct reference to UBN (United Blood Nation)[.] This is [a] reference of various "Blood" sets that is positioned mainly in the east coast that are aligned together. #5 the author makes direct reference to the word "Crips." Which is a recognized STG in the NJDOC.

The hearing was held on August 8, 2012. Bryant's request for a counsel substitute was granted. He requested a polygraph examination, but withdrew that request before it could be decided. Bryant was offered the opportunity to call witnesses and declined. After considering the evidence presented, including the report of Officer Harrison, the hearing officer determined "there is substantial evidence to support the charge" and found Bryant guilty and sanctioned him to 120 days of administrative segregation and 120 days of loss of commutation time.

On August 9, 2012, Bryant filed an administrative appeal of the hearing officer's decision. The only issue raised by Bryant on that appeal is that the charge written by Officer Gunter, dated August 2, 2012, is inconsistent with the date on the inventory sheet, apparently filled out by Gunter when he was processing Bryant's property, August 1, 2012. On August 28, 2012, DOC Assistant Superintendent, Suzanne Lawrence, upheld the decision of the hearing officer, finding that there had been compliance with the Administrative Code on inmate discipline and no misinterpretation of the facts.

Our role in reviewing the decision of an administrative agency is limited. In re Herrmann, 192 N.J. 19, 27 (2007); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We do not reverse an administrative agency determination unless we find it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that the decision violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Herrmann, supra, 192 N.J. at 27-28.

Disciplinary proceedings do not entitle a prisoner to the full spectrum of rights due to a defendant in a criminal proceeding. Avant v. Clifford, 67 N.J. 496, 522 (1975). The limited rights to which prisoners are entitled are intended to "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald v. Pinchak, 139 N.J. 188, 202 (1995).

On appeal, Bryant raises the issue of the inconsistent inventory and charge date as well as new arguments that were not pursued before the hearing officer or the assistant superintendent. He claims he was denied due process, as his hearing was not concluded within seventy-two hours of the filing of the charge; that the finding of guilt was not based on substantial evidence; and his request for a polygraph examination was improperly denied.

We will not entertain exceptions raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The reason for this rule is readily apparent here. Although Bryant raised the issue of the claimed discrepancy in the charge and inventory dates before the hearing officer, he failed to allege, let alone prove, any prejudice flowing from it. On appeal, he claims only that "the charge should have been written on . . . 8-1-12 instead of . . . 8-2-12." Bryant was given the opportunity to call witnesses, including Officer Gunter who processed his property and presumably dated the inventory form, and Sergeant Rawls who served the charges. He declined that opportunity, then failed to raise the issue before the assistant superintendent.

Even if this and the other issues he now raises on appeal had been preserved, a brief review of Bryant's arguments reveals them to be lacking in merit. Bryant's claim that his request for a polygraph was denied is not supported by the record. Rather, it appears from the Adjudication of Disciplinary Charge form that Bryant's initial request for a polygraph was withdrawn and his counsel substitute signed the form attesting to its accuracy.

His claim that he was denied due process because he was not granted a hearing within seventy-two hours of being served with the charge also lacks merit. N.J.A.C. 10A:4-9.8(c) provides that inmates confined in prehearing detention are entitled to a hearing within three calendar days. Bryant was not held in prehearing detention and thus fell under N.J.A.C. 10A:4-9.8(b), which entitled him to a hearing within seven calendar days.

Bryant's remaining arguments, including his claim that there was insufficient evidence to support the finding of guilt, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 N.J.A.C. 10A:3-11.2 defines a STG as:

a group of inmates possessing common characteristics, interests and goals which serve to distinguish the group or group members from other inmate groups or other inmates and which, as a discrete entity, poses a threat to the safety of the staff, other inmates, the community or causes damage to or destruction of property, or interrupts the safe, secure and orderly operation of the correctional facility(ies).