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                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1083-16T2

IVAN MCKINNEY,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Submitted December 6, 2018 – Decided February 28, 2019

                    Before Judges Whipple and DeAlmeida.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Jeffrey B. Steinfeld, attorney for appellant.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Kevin J. Dronson,
                    Deputy Attorney General, on the brief).

PER CURIAM
      Ivan McKinney, an inmate at New Jersey State Prison (NJSP), appeals

from the September 28, 2016 final determination of the Department of

Corrections (DOC) adjudicating him guilty of prohibited act *.005, threatening

another with bodily harm or with any offense against his or her person or his or

her property in violation of N.J.A.C. 10A:4-4.1(a)(2)(ii). We affirm.

                                       I.

      The following facts are derived from the record. On August 11, 2016,

Senior Corrections Officer (SCO) Woods issued a written disciplinary report

charging McKinney with committing prohibited act *.005. The report stated

that at "0900 hrs" that day SCO Woods was escorting

            Sergeant Patterson on [a] tour of North Compound 4C
            at which time [inmate] McKinney, I. #601321 in cell 21
            stopped Sergeant and told us if S.C.O. Early on second
            shift does not stop messing with his mail he will take
            matters into his own hands, stating S.C.O. Early will
            get what is coming to him.

The disciplinary report was corroborated by a special custody report prepared

by Sergeant Patterson on the day of the incident. That report provides, in

relevant part:

            On 8/11/16 at approximately 0900hrs, I was touring
            unit 4C with S.C.O. R. Woods when he was called to
            cell #21 housing inmate McKinney, I #601321. Inmate
            McKinney stated to both of us that officer Early, 2nd


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                                       2
           shift better stop his actions, or he is going to be dealt
           with.

     Sergeant J. Brown conducted an investigation, during which McKinney

denied threatening SCO Early. He stated that he was on the phone and "after

hanging up he asked Sgt. 'Hey, what's up Sgt' when he came to [the] door and

then the Sgt. started yelling 'Oh, you threatening S.[C.]O. Early.'" Sergeant

Brown determined that the charges had merit and referred the matter to a

Disciplinary Hearing Officer (DHO) for further action. He delivered a copy of

the disciplinary report to McKinney on August 12, 2016.

     The disciplinary hearing was scheduled for August 15, 2016, but was

postponed to permit the DHO to obtain additional information. The hearing was

again postponed on August 23, 2016, following McKinney's request for written

confrontation of Sergeant Patterson and SCO Woods, and for a polygraph

examination. On August 29, 2016, NJSP Administrator Steven Johnson denied

McKinney's polygraph request, noting that "no issues of credibility or new

evidence have been determined to warrant its approval administratively."

McKinney's request for confrontation of witnesses was granted. The hearing

was postponed on August 30, 2016, and August 31, 2016, to permit witnesses to

answer McKinney's written confrontation questions.



                                                                       A-1083-16T2
                                      3
      The hearing was held on September 1, 2016. McKinney pled not guilty

to the charge. He was assisted by counsel substitute. At the hearing, McKinney

denied making the comments alleged in the disciplinary report. In addition, his

counsel substitute argued that McKinney was on the telephone at the time of the

alleged incident and that it was "unlikely that he said anything to anybody." He

also argued that the officers' reports were inconsistent with respect to the alleged

remarks, and that the remarks, if made by McKinney, did not constitute a threat.

      An attorney, Jeffrey B. Steinfeld, submitted an affidavit stating that on

August 11, 2016, McKinney called his office at "approximately 8:47 a[.]m.,"

and that he "remained on the telephone with him until almost 9:00 a[.]m., at

which time, he advised me that he had to call his mother and was ending the

phone call."     An August 11, 2016 letter from Steinfeld to the NJSP

Administrator, however, contradicts his affidavit. In the letter, Steinfeld states:

            [a]t approximately 8:52 a[.]m[.], shortly after Mr.
            McKinney had been speaking with me on the telephone,
            Sergeant Pat[t]erson and Officer Woods came to his
            cell. Sergeant Pat[t]erson said to Mr. McKinney, "Oh,
            you threatening Early?" My client immediately and
            forcefully denied ever having threatened any officer,
            including Officer Early. Sergeant Pat[t]erson and
            Officer Woods then left my client.




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                                         4
      Prison records reviewed by the DHO show that McKinney was not

continually on the telephone with Steinfeld during the period described in the

attorney's affidavit. The records indicate the following calls:

            8:33 a.m.:    Call to McKinney's attorney lasted
            approximately 15 minutes (8:48 a.m.).

            8:49 a.m.:    Call to McKinney's attorney lasted
            approximately 1 minute (8:50 a.m.).

            8:56 a.m.:    Call to McKinney's attorney lasted
            approximately two minutes (8:58 a.m.).

There was an approximately one-minute gap from 8:48 a.m. to 8:49 a.m., and an

approximately six-minute gap from 8:50 a.m. to 8:56 a.m., during which

McKinney was not on the telephone with his counsel. It appears from Steinfeld's

letter that it was during the six-minute gap, i.e. "[a]t approximately 8:52 a.m.,

shortly after Mr. McKinney had been speaking with me on the telephone," that

the officers encountered McKinney.

      At 8:58 a.m., McKinney started an approximately three-minute telephone

call with his mother. Unlike his calls with counsel, McKinney's call with his

mother was recorded. The DHO reviewed the recording of the call, which the

hearing officer described as "a routine conversation" about family matters until

            [a]t the end of the telephone call, [inmate] is heard by
            DHO saying, 'Ma they coming to lock me up. They
            lying right now. They said that . . . Call down here to

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                                       5
            the warden cause they walked by. The sergeant and
            officer said something about I threatened somebody. I
            just told Jeff on the phone. Call him right now and tell
            him to call the warden. They come to lock me up. They
            lying on me. Tell him to call the warden.

It is clear from the transcript that the event in question took place prior to

McKinney's telephone call with his mother because McKinney admits that he

previously discussed the incident with "Jeff," presumably his counsel, "on the

phone," likely during the approximately two-minute call starting at 8:56, just

before McKinney called his mother. In addition, at the time that McKinney was

on the telephone with his mother he was aware of the nature of the charges.

      The DHO reviewed an August 23, 2016 special custody report of Sergeant

Patterson, stating that he did not see McKinney on the telephone on the date in

question, as well as an August 26, 2016 special custody report of SCO Woods

stating that during the incident at "no time was" McKinney on the phone.

      After hearing the testimony, reviewing the evidence, and considering

McKinney's arguments, the DHO found McKinney guilty of the *.005 charge.

In a written decision, the hearing officer concluded

            [r]eports state [inmate] made a threatening statement to
            custody staff about an officer on another shift. [Inmate]
            denied guilt & stated he did not threaten the officer &
            could not have done so because he was on the telephone
            at the time the comments were said to have been made
            by him. DHO notes that the statement could have been

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                                       6
                made by the [inmate] between telephone calls or
                thereafter. DHO also notes that the time on the
                disciplinary report is the time that the [inmate] was
                being placed on P[re] H[earing] D[etention] status. The
                incident would have occurred earlier th[a]n 9:00
                a[.]m[.] [S]taff reports & audio evidence are relied
                upon to determine guilt.

The DHO also noted that "the attorney's timeline of his telephone call with the

[inmate] in his affidavit does not match the NJSP/DHO's timeline of the calls

. . . ."

           McKinney was sanctioned to 180 days in administrative segregation, a

365-day loss of commutation time, and a thirty-day loss of recreational

privileges. The DHO noted the serious nature of the offense, and the need to

deter other inmates as reasons for the sanctions imposed.           On appeal, an

Associate Administrator upheld the hearing officer's decision and the sanctions

imposed. This appeal followed.

           On appeal, McKinney argues: (1) the DOC's final agency decision is

contrary to the evidence adduced at the disciplinary hearing; (2) the comments

attributed to McKinney did not constitute a threat of harm to SCO Early's person




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                                          7
or property; (3) the DOC wrongfully denied McKinney's request for a polygraph

examination; and (4) the sanctions imposed are excessive. 1

                                       II.

      Our review of a final agency decision is limited. Reversal is appropriate

only when the agency's decision is arbitrary, capricious, or unreasonable, or

unsupported by substantial credible evidence in the record as a whole. Henry v.

Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J.

644, 657 (1999) (holding that a court must uphold an agency's findings, even if

it would have reached a different result, so long as sufficient credible evidence

in the record exists to support the agency's conclusions). "[A]lthough the

determination of an administrative agency is entitled to deference, our appellate

obligation requires more than a perfunctory review." Figueroa v. N.J. Dep't of


1
  McKinney also argues that we should suppress the DOC's merits brief due to
the agency's ten-month delay in filing a statement of items comprising the record
on appeal (SOI). See R. 2:5-4(b). McKinney argues that the delay deprived him
of due process, and allowed "a blot upon his good name" to remain in the DOC's
records. The DOC does not address this argument in its merits brief. While we
do not condone the lengthy delay in the submission of the SOI, we note that
McKinney's counsel did not file his merits brief until April 27, 2018,
approximately seven months after the SOI was filed. In addition, given the
court's decision, McKinney did not suffer unwarranted sanctions while his
appeal was pending. Finally, we question the strength of counsel's argument
that the delay in the filing of the SOI affected the "good name" of McKinney,
who is serving a life sentence for the kidnapping and sexual assault of a minor,
one of a long list of convictions he has accumulated over many years.
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                                       8
Corr., 414 N.J. Super. 186, 191 (App. Div. 2010) (quoting Blackwell v. Dep't of

Corr., 348 N.J. Super. 117, 123 (App. Div. 2002)).

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

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

9.15(a). "Substantial evidence" is "such evidence as a reasonable mind might

accept as adequate to support a conclusion." Figueroa, 414 N.J. Super. at 192

(quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). In other

words, it is "evidence furnishing a reasonable basis for the agency's action."

Figueroa, 414 N.J. Super. at 192 (quoting McGowan v. N.J. State Parole Bd.,

347 N.J. Super. 544, 562 (2002)).

      Having carefully reviewed the record, we are satisfied that the DOC's

decision is supported by substantial credible evidence. As noted in detail above,

despite McKinney's insistence that he could not have threatened SCO Early on

the date in question because he was on the telephone with his attorney and

mother, the record quite plainly establishes that McKinney had ample

opportunity to commit the offense of which he was adjudicated guilty.

      McKinney made four telephone calls on the morning of August 11, 2016,

all before 9:00 a.m. There were breaks between the calls, including a six-minute

period from 8:50 to 8:56, during which McKinney was not on the telephone. In


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                                        9
a letter written to the NJSP Administrator on the day of the offense, McKinney's

counsel admitted that as of 8:52 a.m. he had completed his phone call with

McKinney, and that officers approached McKinney at that time. McKinney did

not call his attorney again until 8:56. Four minutes is more than sufficient time

for McKinney to call out to passing officers and make the threatening remarks

attributed to him.

      We are not persuaded by McKinney's argument that the agency's decision

cannot be upheld because the officers' reports allege he made a threat at 9:00

a.m., when DOC records establish he was on the telephone with his mother at

that time. We note that Sergeant Patterson's report indicates that McKinney

made the threat at "approximately 9:00hrs," and that SCO Woods may well have

been estimating the time that the threat was made during the break in telephone

calls between approximately 8:50 a.m. and 8:56 a.m. In the prison setting, where

officers face a number of threats and distractions, particularly when they are in

an inmate housing area, as was the case here, we cannot reasonably expect

absolute precision in the handwritten recording of the timing of events.

      We also have considered, and reject, McKinney's argument that he was

improperly denied the opportunity to take a polygraph examination. An inmate

is not accorded the full panoply of rights in a disciplinary proceeding afforded


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                                      10
a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522

(1975). Instead, prisoners are 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, where the charges

are complex, the assistance of a counsel substitute. Id. at 525-33; accord Jacobs

v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995).

We are satisfied McKinney received all due process protections to which he is

entitled.

      An inmate does not have the right to a polygraph test to contest a

disciplinary charge. Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App.

Div. 1997). "An 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). In fact,

N.J.A.C. 10A:3-7.1(c) "is designed to prevent the routine administration of

polygraphs, and a polygraph is clearly not required on every occasion that an

inmate denies a disciplinary charge against him." Ramirez v. Dep't of Corr., 382

N.J. Super. 18, 23-24 (App. Div. 2005). A "prison administrator's determination

not to give a prisoner a polygraph examination is discretionary and may be


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                                       11
reversed only when that determination is 'arbitrary, capricious or unreasonable.'"

Id. at 24. "[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 den ial

of the examination would compromise the fundamental fairness of the

disciplinary process." Id. at 20.

            Impairment [of fundamental fairness] may be
            evidenced by inconsistencies in the SCO'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. Conversely, fundamental fairness will
            not be effected when there is sufficient corroborating
            evidence presented to negate any serious question of
            credibility.

            [Id. at 24.]

      Here, McKinney's threat was witnessed by two officers. No witness came

forward disputing the officers' version of events.       Prison records and an

admission by McKinney's counsel established that McKinney had ample time to

make a threat between phone calls.          As a result, we agree with the

Administrator's determination that McKinney "failed to demonstrate that the

denial of his request for a polygraph negated the fundamental fairness of the

disciplinary proceeding which would compel the granting of his request for a




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                                       12
polygraph." Id. at 26. We are satisfied the Administrator did not abuse his

discretion by denying the request for a polygraph examination.

      We have reviewed McKinney's remaining arguments and conclude they

lack sufficient merit to warrant extended discussion. The comments attributed

to McKinney quite plainly constitute a threat of harm to SCO Early's person or

property. When a prison inmate promises to "take matters into [his] own hands"

and give a corrections officer "what is coming to him," only one meaning

obtains: the inmate is threatening harm. We find the sanctions imposed on

McKinney, which fall within the range permitted by N.J.A.C. 10A:4-4.1(a)(2),

to be apt, given the serious nature of the offense. Protecting the security of

corrections officers and maintaining the orderly operation of the prison are

paramount concerns warranting serious sanctions when endangered by threats

of harm from inmates.

      Affirmed.




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