JOSHUA POLANCO 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NOT FOR PUBLICATION WITHOUT THE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

JOSHUA POLANCO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________

September 26, 2014

Submitted August 27, 2014 Decided

Before Judges Ostrer and Rothstadt.

On appeal from the New Jersey Department of Corrections.

Joshua Polanco, appellant pro se.

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

PER CURIAM

Joshua Polanco, an inmate currently incarcerated at Northern State Prison, appeals from a May 17, 2013 final administrative decision of the Department of Corrections (DOC) adjudicating him guilty of institutional infraction *.306, conduct which disrupts the orderly running of the institution and four counts of *.002, assaulting any person. N.J.A.C. 10A:4-4.1(a).

Polanco appeals, arguing

POINT I: THE FINAL ADMINISTRATIVE DECISION BELOW MUST BE REVERSED AND VACATED FOR LACK OF SUBSTANTIAL EVIDENCE SINCE THERE IS NO INDEPENDENT EVIDENCE TO SUPPORT THE ALLEGATION OF A N.J.A.C.10A:4-4.1(A) .0121 DISCIPLINARY INFRACTION.

POINT II: THE FINAL ADMINISTRATIVE DECISION BELOW MUST BE REVERSED AND VACATED FOR LACK OF SUBSTANTIAL EVIDENCE SINCE THERE IS NO INDEPENDENT EVIDENCE TO SUPPORT THE ALLEGATION OF A N.J.A.C. 10A:4-4.1(A) *.306 DISCIPLINARY INFRACTION.

POINT III: DENIAL OF RIGHT TO CONFRONT ONE'S ACCUSERS AND CROSS-EXAMINE THEM, VIOLATED N.J. ADMIN. CODE TIT. 10A, 4-9.13(A), AND 4-9.14(A).

Polanco's reply brief also raises the following points

POINT I: THE STATE'S POSITION THAT APPELLANT'S CONSECUTIVE SANCTION IS AUTHORIZED IS CONTRARY TO ESTABLISHED LAW IN RULE 3:15-1(B) AND N.J.S.A. 2C:1-8B.

POINT II: DISCIPLINARY HEARING OFFICER FAILED TO PRESENT A STATEMENT OF REASON AS TO WHY HE IMPOSED CONSECUTIVE TERMS OF ADMINISTRATIVE SEGREGATION.

Having thoroughly considered these arguments and the record before us, we affirm.

The record reveals that on May 1, 2013, while incarcerated at the Albert C. Wagner Youth Correctional Facility, Polanco refused to enter his cell after showering. Lieutenant Giannascoli confronted Polanco and Polanco then threw a yellowish liquid substance, with a urine odor, at Giannascoli which landed on his right arm. Giannascoli sprayed Polanco with pepper spray and Polanco began to violently kick a gate. Giannascoli called for officers to attempt to restrain Polanco but Polanco assaulted the officers by punching them in the face and head. The officers were treated for injuries to their hands, face and head; Giannascoli was treated for exposure to bodily fluid. Polanco was decontaminated from the pepper spray, had a medical evaluation and was then transferred to St. Francis Medical Center for treatment.

On May 2, 2013, Sergeant Carmichael served the disciplinary charges on Polanco and conducted an investigation. At his May 9, 2013 hearing before a hearing officer (HO), Polanco declined to call witnesses or to confront adverse witnesses. Instead, he pled guilty to all charges. The HO relied on Polanco's guilty pleas and the internal reports filed by the corrections officers and adjudicated Polanco guilty of all charges. The HO sanctioned Polanco with fifteen days detention with credit for time served and one year of administrative segregation for the *.306 charge. The HO also sanctioned him with fifteen days detention with credit for time served and one year administrative segregation for the first *.002 charge. Finally, the HO sanctioned Polanco with one year administrative segregation for each of the remaining three *.002 charges.

Polanco filed an administrative appeal in which he stated, "I pled guilty to all the charges and accepted full responsibility for my actions." The only challenge he raised to the HO's decision was that the sanctions were unfair and excessive. He requested that they be modified or suspended. On May 17, 2013, an assistant superintendent upheld the HO's decision. Polanco then filed this appeal.

The scope of our review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "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, supra, 81 N.J. at 579-80 (citing Campbell v. Dep't of Civil Service, 39 N.J. 556, 562 (1963)); see also Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div. 2006), certif. denied, 187 N.J. 82 (2006). We must engage in a "careful and principled consideration of the agency record and findings." Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000).

Polanco argues for the first time in his appeal that the final agency decision must be reversed for lack of substantial evidence, that he was denied the opportunity to review the written infraction reports, denied a polygraph and denied the opportunity to cross-examine his accusers. We have carefully considered each of Polanco's contentions in light of the applicable law and find that none have sufficient merit to warrant extensive discussion in this written opinion. R. 2:11-3(e)(2). We add only the following comments.

Polanco failed to raise his arguments in his administrative appeal. We do not review questions that were not raised before the administrative agency "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Nieder v. Royal Indemnity Insurance Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), cert. denied, 31 N.J. 554 (1960)). We do not find any basis under either ground to disturb the agency's decision, especially since Polanco did not argue either issue. Even if he raised these arguments in his administrative appeal, we are satisfied that there was substantial, credible evidence that supported the DOC's findings as to his guilt and that Polanco's due process rights were not violated. See Avant v. Clifford, 67 N.J. 496, 522, 525-33. (1975).

We also disagree that his rights were violated because he was denied a polygraph. Polanco did not request a polygraph but even if he had, a request for a polygraph is not automatically granted. Johnson v. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). The request is conditioned upon a showing that there is "a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 20 (App. Div. 2005). No such showing was made here.

Polanco later claimed in his reply brief that consecutive sanctions are illegal and that the HO failed to state why he imposed consecutive terms of administrative segregation. We defer to an agency's review of disciplinary sanctions. In re Stallworth, supra, 208 N.J. at 195. We will not disturb the sanctions imposed by the DOC unless the "punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness." Ibid.; In re Carter, 191 N.J. 474, 484 (2007).

Even if these claims were previously made, we disagree that consecutive sanctions are illegal because they are authorized and warranted. N.J.A.C. 10A:4-5.1. Even though the charges arose out of the same incident, they were each based on different evidence related to the injuries to each officer and the effect of the overall disturbance. In addition, the HO provided a reason for each individual sanction. Finally, we do not believe Polanco's sanctions were disproportionate to his charges.

In sum, we find no reason to disturb the final administrative decision of the DOC upholding Polanco's guilt and sanctions because the consecutive sanctions were authorized, there were no perceivable violations of Polanco's due process rights, and the record contains substantial evidence to support the findings of the DOC. See Henry, supra, 81 N.J. at 579-80.

Affirmed.

1 The record reflects an initial charge of .012 (throwing bodily fluids charge) which was amended and changed to .002 (assault). Polanco pled guilty and the hearing officer decided that Polanco was guilty of *.002 (assault).