JUAN ROBINSON VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

J
                                NOT FOR PUBLICATION WITHOUT THE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-2567-19

JUAN ROBINSON, a/k/a
JACKIE CHEROKEE,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                   Submitted February 9, 2021 – Decided April 28, 2021

                   Before Judges Gilson and Moynihan.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Juan Robinson, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Chanell Branch, Deputy Attorney
                   General, on the brief).

PER CURIAM
      Juan Robinson, an inmate in a State prison, appeals from a final decision

imposing disciplinary sanctions on him for possession of a weapon in violation

of prohibited act *.202, N.J.A.C. 10A:4-4.1. We reverse and remand for a new

hearing.

                                      I.

      The charge against Robinson stemmed from an anonymous note submitted

through the inmate grievance system. The note stated that there was an altered

razor blade taped under the bottom bunk in cell 309. The cell was searched and

a razor blade with the handle cut off was found taped under the bottom bunk

bed. Cell 309 was occupied by two inmates: Robinson and Tyrone Johnson.

Johnson was assigned the bottom bunk bed and Robinson was assigned the top

bunk bed.

      Johnson denied ownership of the razor blade and stated that he was being

set up. Robinson denied that the razor blade belonged to him and pointed out

that he was assigned to the top bunk bed. Both Johnson and Robinson were

charged with possession of a prohibited weapon.

      Robinson pled not guilty and was assigned counsel substitute. During the

proceedings, he requested a polygraph examination and a fingerprint analysis.

An administrator with the Department of Corrections (DOC) denied both


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requests. In denying the polygraph, the administrator stated that "there is no

new evidence being presented that would necessitate a credibility review." In

denying the fingerprint analysis, the same administrator stated: "The hearing

officer at your hearing can address any issues of credibility."

      The hearing was conducted over several days. No live witnesses testified;

instead, the hearing officer considered (1) written reports and statements from

corrections officers involved in reviewing the anonymous note and searching

the cell; (2) the anonymous note; (3) pictures of the razor blade; (4) writt en

statements by Robinson and his counsel substitute; and (5) written answers

given by a sergeant responding to written questions posed by Robinson and his

substitute counsel.

      The sergeant had reviewed the anonymous note. He acknowledged that

the note stated that the razor blade would be found under the bottom bunk and

that there was no evidence that Robinson, who occupied the top bunk, possessed

the weapon.

      Robinson appears to have requested Johnson to testify at the hearing, but

Johnson declined.1 The hearing officer did consider Johnson's written statement,


1
  In its brief on this appeal, the DOC contends that Robinson did not request
any witnesses. The handwritten adjudication prepared by the hearing officer
indicates that Robinson did request Johnson to testify.
                                                                          A-2567-19
                                        3
in which he claimed that someone was trying to set him up. While Johnson had

reportedly told a corrections officer that he did not own the razor blade, that

denial was not included in his written statement.

      Based on that written evidence, the hearing officer found Robinson guilty

of possession of a prohibited weapon. In a short, handwritten explanation of the

reasons for the decision, the hearing officer stated:

            The [inmate] pled [not guilty] to charge, however
            provided insuffi[cien]t evidence to support his claim.
            [Inmate] was afforded all due process. All evidence
            was considered [and] does support that the weapon in
            question was found in [inmate's] room. [Inmate's]
            bunkie didn't take ownership of the weapon [and]
            denied any knowledge of the same.

      Robinson was sanctioned with 200 days of administrative segregation,

100 days loss of commutation time, and 30 days loss of canteen privileges. He

administratively appealed.

      The DOC, acting through an assistant superintendent, upheld the finding

of guilt of possession of the prohibited weapon. The final decision modified

one of the sanctions, imposing 100 days of administrative segregation instead of

200 days.




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                                        4
                                       II.

      On this appeal, Robinson contends that he was deprived of due process

because there was no substantial credible evidence to support his guilt and his

request for a polygraph should have been granted. We agree that he was entitled

to a polygraph examination.

      Our scope of review of a DOC's decision is limited. Figueroa v. N.J. Dep't

of Corr., 

414 N.J. Super. 186

, 190 (App. Div. 2010). Generally, an agency's

decision should not be disturbed on appeal unless it is arbitrary, capricious, or

unreasonable, or unsupported by substantial credible evidence.         Henry v.

Rahway State Prison, 

81 N.J. 571

, 579-80 (1980). Substantial evidence has been

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

support a conclusion," or "evidence furnishing a reasonable basis for the

agency's action." 

Figueroa, 414 N.J. Super. at 192

(citations omitted); see also

N.J.A.C. 10A:4-9.15(a). Accordingly, "disciplinary actions against inmates

must be based on more than a subjective hunch, conjecture or surmise of the

factfinder." 

Figueroa, 414 N.J. Super. at 191

.

      "Prisons are dangerous places, and the courts must afford appropriate

deference and flexibility to administrators trying to manage this volatile

environment." Russo v. N.J. Dep't of Corr., 

324 N.J. Super. 576

, 584 (App. Div.


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                                       5
1999). A reviewing court "may not substitute its own judgment for the agency's,

even though the court might have reached a different result." In re Stallworth,

208 N.J. 182

, 194 (2011) (citation omitted).

       Nevertheless, our review is not "perfunctory," nor is "our function . . .

merely [to] rubberstamp an agency's decision[.]" 

Figueroa, 414 N.J. Super. at

191

.    "[R]ather, our function is 'to engage in "a careful and principled

consideration of the agency record and findings."'"

Ibid. (quoting Williams v.

Dep't of Corr., 

330 N.J. Super. 197

, 204 (App. Div. 2000)).

       To enable us to exercise this function, the agency must provide a

reasonable record and statement of its findings. Blyther v. N.J. Dep't of Corr.,

322 N.J. Super. 56

, 63 (App. Div. 1999). "No matter how great a deference we

must accord the administrative determination, we have no capacity to review the

issues at all unless there is some kind of reasonable factual record developed by

the administrative agency and the agency has stated its reasons with

particularity."

Ibid. (internal quotation marks

omitted) (citation omitted).

"[W]e insist that the agency disclose its reasons for any decision, even those

based upon expertise, so that a proper, searching, and careful review by this

court may be undertaken." Balagun v. N.J. Dep't of Corr., 

361 N.J. Super. 199

,

203 (App. Div. 2003); see also N.J.A.C. 10A:4-9.15 (mandating that a hearing


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                                       6
officer specify, on an adjudication form, the evidence relied upon in making a

finding of guilt after a disciplinary hearing).

      N.J.A.C. 10A:3-7.1 allows a prison administrator to request a polygraph

in certain situations, including circumstances where an inmate charged with

disciplinary infractions has sought such a polygraph. The regulation states , in

relevant part:

             (a) A polygraph examination may be requested by the
             Administrator or designee:

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

             [Ibid.]

      While "[a]n inmate's request for a polygraph examination shall not be

sufficient cause for granting the request," N.J.A.C. 10A:3-7.1(c), an inmate has

a right to a polygraph test in certain situations. Ramirez v. Dep't of Corr., 

382

N.J. Super. 18

, 20 (App. Div. 2005); but see Johnson v. N.J. Dep't of Corr., 

298

N.J. Super. 79

, 83 (App. Div. 1997) (citing N.J.A.C. 10A:3-7.1(c)) (concluding

the appellant did not "have the right to a polygraph test"). "[A]n 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



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compromise the fundamental fairness of the disciplinary process." 

Ramirez, 382

N.J. Super. at 20

.

      There is no dispute that the razor blade was found in the cell occupied by

Johnson and Robinson. The question is whether there was substantial credible

evidence establishing that Robinson possessed that weapon. "[P]ossession . . .

signifies 'a knowing, intentional control of a designated thing, accompanied by

a knowledge of its character.'"      State v. Pena, 

178 N.J. 297

, 305 (2004)

(emphasis removed) (quoting State v. Pena, 

301 N.J. Super. 158

, 162-63 (App.

Div. 1997)). Accordingly, "an inmate cannot be found guilty of possession of a

prohibited [item] 'unless [there is sufficient proof] that he knew or was aware,

at a minimum, that he possessed [the item].'" 

Figueroa, 414 N.J. Super. at 192

(second alteration in original) (quoting 

Pena, 178 N.J. at 305

).

      Robinson's credibility was key to the determination of his guilt. He denied

knowledge or ownership of the razor blade. The hearing officer did not make a

credibility finding. Instead, the hearing officer stated that there was insufficient

evidence to support Robinson's claim. It was not Robinson's burden to prove

his claim. Instead, the DOC had to prove that Robinson possessed the prohibited

weapon. See

id. at 188-89

(reversing a DOC final decision because the DOC




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                                         8
failed to present "sufficient evidence to meet its burden of persuasion to sustain

its charge that [the inmate] committed the prohibited act").

      Moreover, no witness for the DOC appeared at the hearing. Instead, the

hearing officer relied on written statements and documents, none of which

provided direct evidence that Robinson possessed the altered razor blade.

      The DOC does not expressly address whether it contends that both

Johnson and Robinson possessed the razor blade. If that is its position, however,

then Robinson's denial of knowledge or ownership of the razor blade becomes

central to his alleged constructive possession of the weapon.        See State v.

Morrison, 

188 N.J. 2

, 14-15 (2006) (explaining the concepts and standards for

imputing constructive possession); 

Figueroa, 414 N.J. Super. at 192

(explaining

the concept of constructive possession in the context of a prison disciplinary

matter).

      We conclude that the DOC unreasonably denied Robinson's request for a

polygraph. Accordingly, we remand this matter with the direction to conduct

the requested polygraph examination and to conduct a new hearing that includes

consideration of the polygraph evidence.

      Reversed and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.


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