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Kennelly v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 13, 2010

SEAN KENNELLY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 November 2, 2009

Before Judges Rodríguez and Reisner.

Sean Kennelly, an inmate currently incarcerated at New Jersey State Prison, appeals from the imposition of disciplinary sanctions for committing prohibited act N.J.A.C. 10A:4-4.1(a) *.552, being intoxicated. We affirm.

These are the salient facts. On October 30, 2008, at approximately 10:45 p.m., Senior Correction Officer S. Baker saw Kennelly experiencing difficulty while walking and stumbling. Baker noted that Kennelly's eyes were bloodshot and his breath had a strong odor of alcohol. Nurse Gruff confirmed that Kennelly was intoxicated. Two other inmates also exhibited signs of intoxication. One of these inmates named Drescher, admitted to drinking self-made "hooch."

The next day, Kennelly and Drescher voided urine samples to determine the presence of narcotics. The samples were negative for narcotics. A nurse advised Kennelly of these results and he was served with charges. Sergeant Nolan conducted an investigation. Kennelly pled not guilty to the infraction, stating, "I didn't drink anything." He did not request any witnesses.

Thirteen days later, the hearing officer granted Kennelly's request for the assistance of a counsel substitute. Kennelly pled not guilty to the charge. The hearing officer reviewed several reports, including those by Baker and Nurse Gruff.

At the hearing, Kennelly stated that "I was not drinking . . . the nurse said I pass[ed] the test . . . I wasn't drinking and was not under the influence." Kennelly's counsel substitute relied on Kennelly's statements. Counsel substitute requested leniency. Kennelly was offered but declined to cross-examine any adverse witnesses.

The hearing officer found Kennelly guilty of committing prohibited act *.552. He recommended the following sanctions: fifteen days of detention, with credit for time served; 180 days of administrative segregation; and 90 days loss of commutation time.

Kennelly filed an administrative appeal. Assistant Superintendent F. Pastich upheld the findings and imposed the recommended sanctions. This constituted a final agency decision of the Department of Corrections (DOC).

Defendant appeals contending:

THE DECISION OF THE HEARING OFFICER WAS NOT BASED ON SUBSTANTIAL CREDIBLE EVIDENCE. THE DECISION WAS AT ODDS WITH NURSE GRUFF'S REPORT AND IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS WHEN HE WAS DENIED A BREATHALYZER TEST AND THE HEARING OFFICER'S REFUSAL TO WAIT FOR THE RESULT OF THE URINALYSIS.

We disagree.

We have carefully reviewed the items comprising the record on appeal and the arguments submitted by Kennelly and conclude that the disciplinary hearing comported with the necessary procedural due process requirements. See McDonald v. Pinchak, 139 N.J. 188, 198-99 (1995). We are also convinced that there was substantial evidence to support the adjudication. Avant v. Clifford, 67 N.J. 496, 530 (1975); R. 2:11-3(e)(1)(D). The fact that Kennelly's urine tested negative for illegal drugs does not prove that he was not intoxicated with alcohol.

Affirmed.

20100413

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