                                 NOT FOR PUBLICATION WITHOUT THE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-3433-17T4

TRAVIS VILLALOBOS,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                   Submitted March 18, 2019 – Decided March 29, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Travis Villalobos, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Christopher Josephson, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Travis Villalobos, an inmate at South Woods State Prison, appeals

disciplinary sanctions imposed upon him pursuant to N.J.A.C. 10A:4-4.1 for

committing prohibited act *.203 (possession or introduction of any prohibited

substances such as drugs, intoxicants or related paraphernalia not prescribed for

the inmate by the medical or dental staff).1 We remand this matter, for the

reasons that follow.

                                           I.

      The disciplinary charges against appellant arose out of a search on January

25, 2018 of the cell that was jointly housing him and another inmate. According

to appellant, he had been assigned to that cell at most only a few hours before

the search.

      During the course of the search, a corrections officer discovered, in

appellant's cellmate's unsecured locker, a pouch under a t-shirt. The pouch

contained pills and a powdery substance. Only the pills were tested. The pills

turned out to be non-narcotic prohibited substances for which appellant did not


1
   The Department's documentation is inconsistent. Appellant was initially
charged with both a *.203 infraction and a violation of *.305 (giving a false
statement to a staff member). However, the February 14, 2018 hearing officer's
adjudication of the charges found appellant guilty only of a *.203 infraction.
Inexplicably, the disposition of appellant's administrative appeal refers to both
provisions. In any event, the Department's brief on appeal states that appellant
solely violated *.203.
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                                       2
have a prescription. Appellant and his cellmate both submitted to urine screens

after the discovery of the items. Both screens tested negative.

      Appellant contended that the items did not belong to him, that he had only

recently moved to the cell, and the items were found in his cellmate's locker and

not his own. He requested a polygraph examination, which the institution

declined as unwarranted. The investigation indicated that appellant had access

to the unlocked locker of his cellmate where the seized items were located.

      After several postponements, the disciplinary hearing was conducted on

February 14, 2018. Appellant requested and was provided with the assis tance

of a counsel substitute in accordance with N.J.A.C. 10A:4-9.12. Appellant

provided a statement asserting that he had moved into the cell only a few hours

or less before the search, that he was never alone in the cell, and that the items

were not his and were found in his cellmate's locker. The counsel substitute

noted that a criminal complaint issued after the search stated that the cellmate,

not appellant, was the possessor of the substance. According to the Department's

investigator, this misattribution was a clerical error. 2




2
  According to appellant, the criminal charges against him were dismissed, but
his cellmate was charged in the matter. The Department's brief acknowledges
this representation and does not refute it.
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                                          3
      Appellant was offered the opportunity to call witnesses at the disciplinary

hearing on his behalf, which he declined. He also declined the opportunity to

confront and cross-examine adverse witnesses.

      The hearing officer found appellant guilty of the *.203 prohibited act. The

officer imposed sanctions of 180 days administrative segregation, ninety days

loss of commutation time, ten days loss of recreation privileges, 365 days of

urine monitoring, permanent loss of contact visits, and the confiscation of the

seized items. Appellant was also referred for a mental health evaluation.

      Appellant administratively appealed the hearing officer's decision. That

same day, an Assistant Superintendent of the Department upheld the decision.

                                        II.

      On appeal, appellant contends that he was deprived of due process because

there was not substantial credible evidence to support his guilt and his pre-

hearing polygraph request should have been granted.

      It is well established that our courts generally will not disturb the

Department's administrative decision to impose disciplinary sanctions upon an

inmate, unless the inmate demonstrates that the decision is arbitrary, capricious

or unreasonable, or that the record lacks substantial, credible evidence to support

that decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980);


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                                        4
Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010).

Moreover, prisoners in disciplinary matters are afforded only limited procedural

protections. McDonald v. Pinchak, 139 N.J. 188, 193-99 (1995)

      We focus our discussion on the denial of the requested polygraph.

N.J.A.C. 10:3-7.1 allows the 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:

            (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; or

            2. As part of a reinvestigation of a disciplinary charge,
            when the Administrator or designee is presented with
            new evidence or finds serious issues of credibility.

            (b) The polygraph shall not be used in place of a
            thorough investigation, but shall be used to assist an
            investigation when appropriate.

            (c) Agreement by the inmate to take a polygraph
            examination shall not be a pre-condition for ordering a
            reinvestigation. An inmate's request for a polygraph
            examination shall not be sufficient cause for granting
            the request.

            [N.J.A.C. 1-A:3-7.1].



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                                       5
      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) (concluding the appellant did not "have the

right to a polygraph test," citing N.J.A.C. 10A:3-7.1(c)). "[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

compromise the fundamental fairness of the disciplinary process." Ramirez, 382

N.J. Super. at 20.

      In Ramirez, the inmate appealed disciplinary sanctions based on

attempting to commit an assault on a senior corrections officer. Id. at 20-21.

Ramirez denied these charges and contended the officer assaulted him. Id. at

21.   In analyzing these issues, we explained in Ramirez that "a prison

administrator's determination not to give a prisoner a polygraph examination is

discretionary and may be reversed only when that determination is 'arbitrary,

capricious or unreasonable.'" Id. at 24. In exercising this discretion, the prison

administrator "must be guided by whether the request for a polygraph if denied

will impair the fundamental fairness of the disciplinary proceeding." Ibid. We


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                                        6
noted that such impairment of fairness could be indicated, for instance, by

inconsistencies in the officer's 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." Ibid. However,

"fundamental fairness will not be effected when there is sufficient corroborating

evidence presented to negate any serious question of credibility." Ibid.

      Applying these standards, we found the Department's denial of a

polygraph in Ramirez did not undermine the fundamental fairness of the

proceeding because there was no inconsistencies in the officer's accusation, no

extrinsic evidence involving credibility was presented, and corroborating

evidence was presented to confirm the officer's credibility. Id. at 26. Even so,

we have held that a denial of an inmate's request for a polygraph was improper

or unfair in other cases.     For example, in Engle v. N.J. Department of

Corrections, 270 N.J. Super. 176, 178 (App. Div. 1994), we found that a denial

of a polygraph examination – where the violation was based on information from

a single confidential informant with no corroboration – was an unsustainable

exercise of the administrator's discretion.

      Here, the parties agree the contraband was found in appellant's cellmate's

locker. Appellant asserts that he moved into that cell only hours earlier, an


                                                                           A-3433-17T4
                                        7
assertion the Department's proofs did not refute. There was no corroborating

evidence presented that the contraband was appellant's, or that the appellant

knew of the contraband's existence, beyond the fact that the cellmate's locker

was unsecured and appellant presumably could have had access to it.

      The circumstances here do not justify denying a polygraph request, as the

dispute ultimately turns upon the credibility of competing claims regarding

appellant's alleged knowledge and constructive possession of the items . 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 knowledge in the context of a prison

disciplinary matter).

      As we noted in Figueroa:

            "[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) (quotations omitted). Thus, an inmate
            cannot be found guilty of possession of a prohibited
            drug "unless [there is sufficient proof] that he knew or
            was aware, at a minimum, that he possessed [the
            drug]." Ibid.

            [414 N.J. Super. at 192 (alterations in original) (second
            emphasis added)].




                                                                        A-3433-17T4
                                       8
      In light of these considerations and what we deem to be "serious issues of

credibility" and fundamental fairness concerns, we conclude the Department

unreasonably denied appellant's request for a polygraph.       We accordingly

remand this matter with a direction to the Department to arrange the requested

polygraph examination(s).

      Following the test results, a new hearing shall be conducted to take into

account the polygraph evidence and any other proofs that may be developed.

We do not intimate in advance, of course, any views about the outcome of these

procedures.

      Remanded for further proceedings in accordance with this opinion. We

do not retain jurisdiction.




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                                       9
