                                NOT FOR PUBLICATION WITHOUT THE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-3881-17T4

WILFREDO GONZALEZ,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

          Respondent.


                    Submitted April 3, 2019 – Decided May 10, 2019

                    Before Judges Currier and Mayer.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Wilfredo Gonzalez, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Rachel Simone Frey,
                    Deputy Attorney General, on the brief).

PER CURIAM
      Appellant Wilfredo Gonzalez, a State inmate, appeals from the

Department of Corrections (DOC) finding that he committed three prohibited

acts in violation of N.J.A.C. 10A:4-4.1(a): *.002, assaulting any person; *.306,

conduct which disrupts or interferes with the security or orderly running of the

correctional facility; and .304, using abusive or obscene language to a staff

member. We affirm.

      As appellant was being escorted back to his cell, he began to use abusive

language towards the corrections officer and then punched the officer in the eye.

At the disciplinary hearing, appellant alleged the corrections officer had

attacked him.   Three other witnesses corroborated the corrections officer's

version of events. Appellant was represented by counsel substitute, but declined

to present witnesses or cross-examine any adverse witnesses.

      The hearing officer found appellant guilty of all three charges. As to

*.002, the officer stated that "[a]ll of the evidence was thoroughly reviewed and

does support that [appellant] assaulted staff; witness statements corroborate the

same. [Appellant] provided nothing to disprove the evidence." The officer

imposed sanctions of 365 days administrative segregation, 100 days loss of

commutation time, thirty days loss of recreational privileges, and thirty days

loss of canteen. The hearing officer stated the sanctions were required because


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appellant "refuse[d] to take responsibility for his actions" and he continued to

accrue charges. The officer stated further: "[Appellant] has to consider the

safety/security of others."

      In finding appellant guilty of *.306, the officer stated: "The evidence

supports that [appellant's] behavior caused a code to be called and thus delayed

movements. [Appellant] has provided nothing to contradict the charge." The

administrative segregation and loss of recreational privileges sanctions were

concurrent to the *.002 sanctions. Thirty days loss of commutation time was

consecutive to *.002.

      As to the .304 charge, the officer imposed sanctions of sixty days loss of

commutation time consecutive to *.002, and thirty days loss of recreational

privileges concurrent to *.002.

      The DOC upheld the hearing officer's determinations.          The assistant

superintendent found: "Compliance with [Title] 10A and the provisions that safe

guard discipline were followed. The sanction imposed was proportionate to the

offense in view of prior disciplinary history. . . . The decision of the [h]earing

[o]fficer was based on substantial evidence and reports from several officers."

      Our role in reviewing a prison disciplinary decision is limited. Figueroa

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


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                                        3
the decision must not be disturbed on appeal unless it was arbitrary, capricious,

or unreasonable, or it lacked the support of "substantial credible evidence in the

record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)

(citation omitted).

      On appeal, appellant contends the hearing officer's findings were

improper, his counsel substitute violated his due process rights, was ineffective,

and should have requested a polygraph examination of the corrections officers.

      A finding of guilt at a disciplinary hearing must be "based upon substantial

evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-

9.15(a). We are satisfied appellant was afforded all of his due process rights

regarding the hearing as articulated in Avant v. Clifford, 67 N.J. 496, 525-33

(1975). He was provided notice of the violations, given a written statement,

afforded substitute counsel, and had the opportunity to cross-examine adverse

witnesses and call his own witnesses.

      Appellant cannot make a traditional ineffective assistance of counsel

claim because our Supreme Court has determined that counsel substitute are not

attorneys and are not held to the same standard as attorneys. Id. at 536-37. We

are unpersuaded by appellant's argument that substitute counsel should have

requested a polygraph examination of the correction officers. A request for a


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                                        4
polygraph examination will only be granted in limited circumstances, N.J.A.C.

10A:3-7.1(a), and "[a]n inmate's request for a polygraph examination" alone is

insufficient cause to grant the request. N.J.A.C. 10A:3-7.1(c). A polygraph may

be requested by the Administrator or designee either "[w]hen there are issues of

credibility regarding serious incidents or allegations which may result in a

disciplinary charge" or "when the Administrator or designee is presented with

new evidence or finds serious issues of credibility" in conjunction with the

reinvestigation of a disciplinary charge. N.J.A.C. 10A:3-7.1(a).

      Here, there were no credibility issues sufficient to warrant a polygraph

test. Four corrections officers submitted reports on the date of the incident

detailing what happened. Their statements were consistent. The three officers

corroborated the injured officer's statements, which constituted "sufficient

corroborating evidence" to "negate any serious question of credibility." Ramirez

v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005). There was no

extrinsic evidence from another inmate or a staff member challenging the

veracity of the officers' statements. See ibid. The only challenge to the officers'

statements was appellant's own certification.         An inmate's denial of a

disciplinary charge against him is insufficient to warrant a polygraph




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                                        5
examination. Id. at 23–24. As a result, any request for a polygraph examination

would have been denied.

      The substantial evidence presented at the hearing supported the hearing

officer's finding of guilt on the three charges and the imposed sanctions. The

decision of the DOC upholding the charges was not arbitrary, capricious, or

unreasonable.

      Affirmed.




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