JESSE LACEY VS. NEW JERSEY DEPARTMENT OF CORRECTIONS(NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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
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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,
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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)
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(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.
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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
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(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.
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