JESSE LACEY VS. NEW JERSEY DEPARTMENT OF CORRECTIONS(NEW JERSEY DEPARTMENT OF CORRECTIONS)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 14, 2017
• Docket: A-1414-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1414-15T1

JESSE LACEY,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________________________________

Argued telephonically April 27, 2017 – Decided June 14, 2017

Before Judges Gilson and Sapp-Peterson.

On appeal from the New Jersey Department of Corrections.

Jesse Lacey, appellant pro se.

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).

PER CURIAM Appellant, Jesse Lacey, an inmate at Southern State

Correctional Facility, appeals from a October 16, 2015 decision

of the Department of Corrections (Department), upholding a hearing

officer's (HO) findings and conclusion that Lacey was guilty of

prohibited act *.202, possession or introduction of a weapon, such

as, but not limited to, a sharpened instrument, knife or

unauthorized tool, in violation of N.J.A.C. 10A:4-4.1(a). We

affirm.

On October 8, 2015, the Department received an anonymous

note, slid under the door of the sergeant's office, stating that

Lacey "has a shank." Senior Corrections Officer (SCO) Cavagnaro

conducted a search in the area of Lacey's bed and found a shank

made from a deodorant bottle and a nail with a rubber tube sheath.

The shank was concealed in a sock the officer found in Lacey's

secured wall locker.

The next day the Department served Lacey with the disciplinary

charge. He denied the allegation and requested an investigation,

a polygraph examination and the opportunity to confront SCO

Cavagnaro. The HO denied his request for a polygraph.

At the hearing, Lacey, referring to the shank, said, "It

wasn't mine." He also had the opportunity, through written

questions he submitted, to confront SCO Cavagnaro, who appeared

at the hearing. He did not request witness statements. Upon

2 A-1414-15T1 completion of the hearing, the hearing officer (HO) credited the

report confirming that the shank had been located after a search

of Lacey's bed area. The HO sanctioned Lacey to the following:

time served in detention, 180 days administrative segregation, and

180 days loss of commutation time.

Lacey filed an administrative appeal. The Associate

Administrator upheld the HO's findings, concluding that there had

been no misrepresentation of the facts. Lacey's request for

leniency was also denied. The present appeal followed.

Lacey presents a single point on appeal, which includes

various arguments, stating:

Appellant's Sanction was Excessive for a First Offense and the Department of Corrections Violated Their own Policy and Procedures Throughout the Investigation When Appellant was Engaged in Positive Treatment and had no History of Institutional Infractions.

The scope of our review of a final decision of an

administrative agency is strictly limited. George Harms Constr.

Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). Our review is

restricted to four inquiries: 1) whether the agency's decision is

contrary to the State or Federal Constitution; 2) whether the

agency's action violates either express or implied legislative

policies; 3) whether there is substantial credible evidence in the

record as a whole to support the agency's decision; and 4) whether,

3 A-1414-15T1 in applying the law to the facts, the agency clearly erred in

reaching a decision that could not reasonably have been made on

consideration of the relevant factors. Ibid. "We cannot

substitute our judgment for that of the agency where its findings

are supported by substantial credible evidence in the record."

Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352, (App. Div.

2005) (citation omitted).

Prison disciplinary hearings are not criminal prosecutions and

an inmate is not entitled to the "full panoply of rights" as is a

defendant in a criminal prosecution. Avant v. Clifford, 67 N.J.

496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480,

92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)). The procedural

due process requirements articulated in Avant were reaffirmed by

the Court in McDonald v. Pinchak, 139 N.J. 188, 194-99 (1995).

Specifically, an inmate charged with a disciplinary infraction is

entitled to written notice of the charges at least twenty-four

hours prior to the hearing, an impartial tribunal, a limited right

to call witnesses and present documentary evidence, a limited

right to confront and cross-examine adverse witnesses, a right to

a written statement of the evidence relied upon and the reasons

for the sanctions imposed, and, in certain circumstances, the

assistance of counsel substitute. Avant, supra, 67 N.J. at 525-

33; See also Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995)

4 A-1414-15T1 (tracing the history of protections afforded prisoners in

administrative hearings).

Various provisions of Title 10A of the Administrative Code

address these procedural due process protections afforded to

inmates charged with disciplinary infractions. We cannot ignore

that "the administrative rules and regulations that govern the

fulfillment of due-process rights for prisoners are balanced

against the needs and objectives of the prison" to assure the

safety and security of those confined, prison personnel, and the

public. McDonald, supra, 139 N.J. at 194. Having carefully

considered the record in light of this standard of review, we are

convinced the DOC's determination does not violate these

standards. Figueroa v. Dep't of Corr., 414 N.J. Super. 186, 191-

93 (App. Div. 2010).

Here, the record demonstrates Lacey was advised of his right

to call fact witnesses, present documentary evidence, N.J.A.C.

10A:4-9.13, and to confront witnesses, N.J.A.C. 10A:4-9.14. He

availed himself of the right to confront witnesses and SCO

Cavagnaro appeared at the hearing. He called no other witnesses.

It is undisputed that the shank was recovered from a sock where

it was concealed, located in a locked wall locker belonging to

Lacey.

5 A-1414-15T1 Turning to his request for a polygraph examination, which the

HO denied, we note that the HO is not compelled to grant it.

Pursuant to N.J.A.C. 10A:3-7.1(c), "[a]n inmate's request for a

polygraph examination shall not be sufficient cause for granting

the request." In Ramirez v. Dep't. of Corr., 382 N.J. Super. 18,

20 (App. Div. 2005), we emphasized that "an inmate's right to a

polygraph is conditional and the request should be granted when

there is a serious question of credibility and the denial of the

examination would compromise the fundamental fairness of the

disciplinary process." The HO found no "serious question of

credibility" in SCO Cavagnaro's testimony or in the investigation,

which led to the discovery of the shank. Moreover, the fact that

the shank was found in a secured wall locker under Lacey's control

negated the necessity to administer a polygraph to Lacey.

As noted, an agency decision must be supported by substantial

evidence found in the record. Substantial evidence is defined as

"such evidence as a reasonable mind might accept as adequate to

support a conclusion." In re Application of Hackensack Water Co.,

41 N.J. Super. 408, 418 (App. Div. 1956). "Where there is

substantial evidence in the record to support more than one

regulatory conclusion, 'it is the agency's choice which governs.'"

In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.)

(quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491

6 A-1414-15T1 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied,

127 N.J. 323 (1990).

The DOC produced direct and circumstantial evidence of

Lacey's guilt. Lacey has not demonstrated that the DOC's decision

was arbitrary, capricious, unreasonable, or in violation of either

the enabling statute or implementing regulations. See Bowden v.

Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993)

(holding that "[t]he burden of showing the agency's action was

arbitrary, unreasonable or capricious rests upon the appellant"),

certif. denied, 135 N.J. 469 (1994). We conclude the agency's

determination was grounded in the facts of record and well within

its regulatory authority. The substantial evidence in the record

supports the HO's findings, which were adopted by the agency in

its final determination. Those findings support the conclusion

that appellant engaged in conduct prohibited by the prison for

which sanctions were imposed.

Affirmed.

7 A-1414-15T1