DERRICK MOORE 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NOT FOR PUBLICATION WITHOUT THE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

DERRICK MOORE,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Defendant.

_______________________________________

August 7, 2014

Submitted May 19, 2014 Decided

Before Judges Guadagno and Sumners.

On appeal from the New Jersey Department of Corrections.

Derrick Moore, appellant pro se.

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

PER CURIAM

Derrick Moore, currently incarcerated at South Woods State Prison, appeals from a final disciplinary decision of the New Jersey Department of Corrections (DOC) which found he committed prohibited act *.005, threatening another with bodily harm or with any offense against his or her person or his or her property, in violation of N.J.A.C. 10A:4-4.1(a). He raises the following points on appeal:

POINT I:

HEARING OFFICER C. RALPH DID NOT HAVE SUFFICIENT EVIDENCE TO FIND MOORE GUILTY.

POINT II:

[THE] EVIDENCE DOES NOT SUPPORT A FINDING OF GUILT[Y].

 
POINT III:

HEARING OFFICER C. RALPH S JUSTIFICATION FOR A FINDING OF GUILT[Y] AND FOR IMPOSING THE

SANCTION [WAS] EITHER ILLEGAL OR INSUFFICIENT.

POINT IV:

HEARING OFFICER C. RALPH S COMMENTS INTERFERED WITH THE ADMINISTRATIVE APPEAL

PROCESS.

POINT V:

THE ADMINSTRATOR DID NOT FOLLOW PROPER PROCEDURE IN REVIEWING THE APPEAL.

POINT VI: THE REQUEST FOR A POLYGRAPH WAS ARBITRARILY DENIED.

We have considered these arguments and affirm.

I.

On October 29, 2012, Moore was incarcerated at Bayside State Prison, where he filed a complaint against the DOC. As a result of the complaint, he was interviewed by Special Investigation Division Investigator J. Williams. Williams alleged that during the interview, Moore told him, "I m getting out of here one way or another, if I have to fuck you up then that s what I ll do." Moore was then placed in pre-hearing detention, and charged with disciplinary infraction *.005, threatening another with bodily harm or with any offense against his or her person or his or her property, in violation of N.J.A.C. 10A:4-4.1(a).

DOC Sergeant S. Hughes served the charge on Moore and conducted an investigation. Moore was provided the assistance of counsel substitute. In his statement for the investigation, Moore wrote, "I did not threaten [Williams] at any time [.] I guess this is a way of trying to get me back from [sic] my complaint." In Hughes disciplinary report, DOC Officers, Sergeant F. Pritchett and Lieutenant M. White, were listed as witnesses. Hughes concluded Moore was guilty of threatening Williams and referred the charge to a hearing officer.

Due to a state of emergency as a result of Hurricane Sandy, the disciplinary hearing could not be scheduled until November 2. However, that hearing date was postponed, as well as two other dates, because Moore requested a polygraph examination and additional information from the DOC. The polygraph request was denied November 7, by John Powell, Administrator, on the basis that "it has been determined that a disciplinary report and supplemental evidence support the charge as written." The record is unclear whether Moore received the additional information he requested for the hearing that was held on November 9 by Hearing Officer Christy Ralph.

At the hearing, Moore pled not guilty. He denied making the comment to Williams. His counsel substitute relied on Moore s testimony. Moore declined the opportunity to present witnesses on his behalf and confront/cross-examine adverse witnesses.

The hearing officer found Moore guilty of the charge based on the "substantial evidence to support the charge." She imposed sanctions of 15 days of detention with credit for time served, 120 days of administrative segregation, and 120 days loss of commutation time. Moore then filed an administrative appeal.

In his administrative appeal, Moore continued to deny making the comment to Williams, and renewed his request for a polygraph examination "to prove he is credible." He also requested leniency from the "excessive sanction" because he was free of charges since 2007, and awaiting an assignment to a new DOC program after participating in other DOC programs.

After reviewing the disciplinary hearing record, the DOC Assistant Superintendent upheld the hearing officer s decision, stating that, "[n]o leniency will be afforded to [Moore]. Sanction [is] not excessive." This appeal followed.

II.

Our review of agency action is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison,81 N.J. 571, 579-80 (1980)(citation omitted). Substantial evidence needed to sustain guilt of an infraction is "such evidence [that] a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas, 35 N.J.358, 376 (1961)(citations omitted). We are obligated to give deference to credibility determinations made by the fact finder. Doering v. Board of Review, 203 N.J. Super. 241, 245 (App. Div. 1985); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Moore contends that his alleged comment was not a threat. He argues there was no proof that he had the ability to carry out any threat, and Williams never stated he was in fear of bodily injury due to the alleged comment. Moore also contends that the witnesses, Pritchett and White, were not credible, as they were not in a position to hear his comment unless they were eavesdropping, and only White provided a witness statement. We conclude these arguments are without merit.

A review of the record demonstrates that the hearing officer made her decision based upon "the evidence [identified as,] [] A1 through A11," and concluded "there is substantial evidence to support the charge." That evidence includes the statements by Moore and White. Moore s argument does not persuade us to reject the hearing officer s fact finding conclusions. Granted, he denied making a threatening comment to Williams. However, he presented no witnesses in support of his position and did not confront the witnesses against him in order to undermine their credibility.

Furthermore, giving deference to the hearing officer s conclusion that Moore made the statement as alleged, a reasonable person could conclude that Moore threatened Williams when he stated "I m getting out of here one way or another, if I have to fuck you up then that s what I ll do." Whether Moore could have carried out the threat, or whether Williams feared Moore as a result of the comment, is of no import. An inmate charged with threatening bodily harm in violation of N.J.A.C.10A:4-4.1(a), *.005, is guilty "[w]hen [his] words [] are of such a nature as would reasonably convey the menace or fear of death to the ordinary hearer[.]" Jacobs v. Stephens, 139 N.J. 212, 224 (1995). We therefore agree with the administrative adjudication that the words were threatening and constituted a violation of *.005.

Moore also argues that the hearing officer never identified on the adjudication form that she considered his statement, thereby, "interfering" with his administrative appeal rights. The DOC points out that Moore did not make this contention in his administrative appeal. It argues that pursuant to Neider v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973)(citations omitted) an issue not raised at the hearing level is not considered at the appellate level unless the issue relates to jurisdiction or concerns matters of great public interest.

Here, Moore does not raise jurisdictional or public interest concerns. However, since we have concluded the DOC s decision was based upon sufficient evidence, Moore s argument has no merit.

Lastly, Moore finds fault with the DOC s failure to provide him a polygraph examination to establish his innocence. We disagree with this contention.

DOC administrative regulation N.J.A.C. 10A:3-7.1 reads in pertinent part:

(a) A polygraph examination may be requested by a prison administrator or designee:

1. When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge . . . .

[N.J.A.C. 10A:3-7.1.]

The regulation, however, does not give an inmate an unconditional right to obtain a polygraph upon request. "[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. A request for a polygraph is only granted where "there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Id. at 20. Compromise "may be evidenced by inconsistencies in the [correctional officers'] 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." Id. at 24. On the other hand, "fundamental fairness will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility." Ibid.

Here, rejecting Moore s request for a polygraph examination did not deny him fundamental fairness at his disciplinary hearing. There were no inconsistencies in the DOC s witnesses' statements, or some other extrinsic evidence involving credibility. The only evidence supporting Moore s innocence was his statement denying he made the comment to Williams. We conclude the hearing officer was capable of assessing the credibility of the witnesses without a polygraph examination; thus, the denial of a polygraph examination was not arbitrary, capricious or unreasonable.

Affirmed.