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McGill v. Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 6, 2007

JOHN MCGILL, PETITIONER-APPELLANT
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT-RESPONDENT.

On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 25, 2007

Before Judges Collester and Lyons.

Inmate John McGill is incarcerated at South Woods State Prison serving a life sentence with a twenty-five year parole disqualifier for murder. He appeals from a final agency decision of the Department of Corrections (DOC) adjudicating him guilty of prohibited act *.306, i.e., conduct which disrupts the orderly running of the correctional institution in violation of N.J.A.C. 10A:4-4.1.

At approximately 6:40 p.m. on June 29, 2006, Corrections Officer Michael Slusarczyk was on duty in the mezzanine area of Wing 12R. He heard loud noises coming from cell #2110, which was occupied by McGill and an inmate named Nelson. As the corrections officer approached, he saw McGill on top of Nelson with the two exchanging "body shots." At this point Officer Slusarczyk called a "Code 33" in Wing 12R. Other corrections officers responded, and both McGill and Nelson were escorted to detention. They were charged with prohibited act *.004, i.e., fighting.

McGill remained in detention while pending the adjudicatory hearing on July 17, 2006. The hearing officer amended the *.004 charge to a *.306 charge and found McGill guilty. His sanction was time already served and a verbal reprimand.

McGill raises the following points on appeal.

POINT I -- THE APPELLANT WAS DENIED HIS RIGHT TO CONFRONTATION OF HIS ACCUSER, ALSO, BY REPEATEDLY DELAYING HIS DISCIPLINARY HEARING, THE APPELLANT WAS RETALIATED AGAINST FOR REQUESTING CONFRONTATION AND HIS RIGHT TO DUE PROCESS WAS VIOLATED.

POINT II -- THE BURDEN OF PROOF WAS NOT MET TO SUPPORT A FINDING OF GUILT.

POINT III -- THE APPELLANT WAS DENIED HIS RIGHT TO CALL WITNESSES.

A review of the record indicates that McGill received all required due process and was adjudicated guilty based on substantial evidence in the record. He was given notice of the initial charge and he waived his right to more time as to the amended charge. He also waived his request to confront the officer after initially seeking a confrontation hearing. He was offered the opportunity to call witnesses and named two witnesses, both of whom told the investigating corrections officer that they had no knowledge of the incident and could not see inside cell #2110. His procedural due process rights articulated in Avant v. Clifford, 67 N.J. 496, 522 (1975) were met. See also McDonald v. Pinchak, 139 N.J. 188 (1995); Jacobs v. Stevens, 139 N.J. 212 (1995).

McGill's written statement acknowledged that he and Nelson were arguing loudly after Nelson's refused to open the door for him. It was this argument that caused the officer to call the "code" which disrupted the institution.

Only when an agency's decision is arbitrary, capricious or unsupported by credible evidence in the record may it be reversed. Henry v. Rahway State Prison, 81 N.J. 571 (1980). Here we find that the adjudication of guilt of an infraction was supported by "substantial evidence." See McDonald, supra, 139 N.J. at 188.

Affirmed.

20071206

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