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Merritt v. New Jersey Dep't of Corrections

June 17, 2010

ANTONIO MERRITT, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Agency Decision of the New Jersey Department of Corrections. Antonio Merritt, appellant pro se.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 3, 2010

Before Judges Yannotti and Chambers.

Appellant Antonio Merritt, an inmate currently incarcerated at New Jersey State Prison in Trenton, appeals from a final administrative determination that he committed the prohibited act of attempted assault *.803/*.002 under N.J.A.C. 10A:4-4.1(a).*fn1 We reverse and remand for a rehearing.

I.

The record indicates that Senior Corrections Officer LeMien filed reports stating that on April 2, 2009, he saw Merritt assault Senior Corrections Officer Albano by making a fist and striking at him. In defense, Albano struck Merritt who was then wrestled to the ground. As a result, Merritt was charged with committing prohibited act *.002 assault, and *.306, conduct which disrupts, N.J.A.C. 10A:4-4.1(a). Merritt pled not guilty and, at his request, a counsel substitute was appointed for him as allowed by N.J.A.C. 10A:4-9.12. The written record of the disciplinary hearing held on this infraction states that Merritt did not testify, he did not call any witnesses, he did not ask for confrontation of the adverse witnesses, but he did request leniency.

Based on this record the hearing officer modified the charge to attempted assault under *.803/*.002, N.J.A.C. 10A:4-4.1(a) as the more appropriate charge. He found Merritt guilty of attempted assault, noting that Merritt's conduct was triggered when Merritt became upset because a visit was terminated. The hearing officer imposed upon Merritt sanctions of fifteen days detention, 300 days of administrative segregation, 180 days of loss of commutation time, and made a referral for a mental health evaluation.

Counsel substitute filed on behalf of Merritt an administrative appeal of this determination, disputing the corrections officers' version of events and contending that Merritt was struck by an officer and wrestled to the ground for no apparent reason. The appeal also contended that even if Merritt had committed the offense, the sanctions imposed were harsh. By disposition dated May 4, 2009, the Assistant Superintendent of the Department of Corrections upheld the decision of the hearing officer. Merritt appeals this determination to this court, raising the following issues:

POINT I

THE FINAL AGENCY DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE MERRITT FAILED TO RECEIVE ALL THE PROCEDURAL DUE PROCESS TO WHICH HE WAS ENTITLED.

POINT II

THE DEPARTMENT OF CORRECTIONS['] [DENIAL] OF MERRITT'S REQUEST FOR A POLYGRAPH EXAMINATION CONSTITUTED A CLEAR VIOLATION OF HIS ...


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