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Johnson v. New Jersey Dept. of Corrections

February 27, 1997

MELVIN JOHNSON, PLAINTIFF-APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, DEFENDANTS-RESPONDENTS.



On appeal from a Final Decision of the New Jersey Department of Corrections.

Approved for Publication March 3, 1997.

Before Judges Havey, Brochin and Eichen. The opinion of the court was delivered by Brochin, J.A.D.

The opinion of the court was delivered by: Brochin

The opinion of the court was delivered by

BROCHIN, J.A.D.

Appellant Melvin Johnson is an inmate confined at the New Jersey State Prison. Following a disciplinary hearing, he was determined to have committed the prison disciplinary infraction of "assaulting any person," a violation of N.J.A.C. 10A:4-4.1(a)(* .002). The hearing officer imposed 15 days detention, with credit for time served, 120 days administrative segregation, and loss of 120 days commutation time. Both the finding of guilt and the sentence were affirmed on appeal to the Department of Corrections.

Johnson has appealed that determination to our court. He contends that the administrative ruling should be reversed because he was denied the right to cross-examine a critical witness and because he was refused the opportunity to take a polygraph test.

Preliminarily, we note that our review of this matter has been grossly hampered by the undecipherability of most of the record. The various statements and reports which comprise the record all consist primarily of handwritten materials. We have no difficulty reading Johnson's handwritten materials. But a combination of illegible handwriting and of reproductions which are either smudged or blurred have made a substantial portion of the forms completed by officers of the State Prison or of the Department of Corrections entirely unreadable. Since an inmate has a right to appeal the imposition of disciplinary sanctions, he is also entitled to have us furnished with a record which makes our review possible. Because of the nature of appeals by prison inmates, the responsibility for assuring that the reviewing court has a useable record must fall to the Attorney General representing the State or its agents. The illegibility of the record would be a sufficient reason for a remand in the present case even if there were no other reason. See McDonald v. Pinchak, 139 N.J. 188, 199, 652 A.2d 700 (1995) ("Reviewing bodies must be able to examine a record of disciplinary proceedings.")

But there is another reason. The one incident report that we can read describes the incident which is the occasion for the discipline as follows:

On April 9, 1995, an incident took place in 8 Down A Dorm. Upon investigating, the officers found I/M Jones 216691 breathing heavily and all scratched up. They also found I/M Johnson 247682 to be scratched up. . . . We were then informed a third party was involved in the incident known as "D Boy." On April 10, 1995, "D Boy" was identified as I/M Kellam 223729 . . . .

On April 11, 1995 Lt. Pascucci and this writer acting on information originally supplied by Lt. Connell obtained two (2) confidential eyewitness statements, both stating I/M Jones was in possession of narcotics on 4-9-95 in 8DN. I/Ms Kellam and Johnson attempted to steal Jones' narcotics and when Jones resisted Kellam and Johnson punched him repeatedly.

Based on the above, I/Ms Kellam and Johnson were issued 002 assault charges and placed in PHD status.

Please be advised both confidential informants have proven reliable in the past in obtaining information on previous assaults and drug operations.

Johnson denies that the alleged assault occurred. The appendix to his brief to our court includes what purports to be I/M Jones' ...


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