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John Mcgill v. New Jersey Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 14, 2011

JOHN MCGILL, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 3, 2011

Before Judges Fisher and Fasciale.

John McGill, an inmate of Northern State Prison, appeals from a final decision of the Department of Corrections that found he violated *.009, misuse or possession of electronic equipment not authorized for use or retention by an inmate, and .709, failure to comply with written rules, N.J.A.C. 10A:4- 4.1(a), and that, as a sanction, imposed fifteen days detention, 365 days administrative segregation, 365 days loss of commutation time, and referral for a job change.

In his appeal, McGill argues:

I. FOR THE .709 CHARGE, THE APPELLANT WAS ACCUSED OF AND FOUND GUILTY OF VIOLATING A RULE THAT DOES NOT EXIST.

II. THE DISCIPLINARY HEARING OFFICER BEHAVED UNETHICALLY AND FRAUDULENTLY ALTERED THE RECORD OF THE DISCIPLINARY PROCEEDINGS.

III. FOR THE *.009 CHARGE, THERE IS NOT SUBSTANTIAL EVIDENCE THAT THE APPELLANT COMMITTED A PROHIBITED ACT.

We find insufficient merit in Points I and II to warrant discussion in a written opinion, R. 2:11-3(e)(1)(A), and, in rejecting Point III, conclude after careful examination of the record that the agency's findings are supported by sufficient credible evidence, R. 2:11-3(e)(1)(D). We add only the following brief comments.

Specifically, McGill was found to have saved his book "On The Block" on a computer's hard drive. He argues, among other things, that the regulation upon which he was charged does not prohibit this conduct. Although broadly worded, *.009 bars unauthorized transmissions or the downloading of information, such as occurred here. We, thus, conclude that the regulation gave McGill sufficient notice that his actions were prohibited. And, to the extent McGill claims .709 was too amorphous to be applied, we note that his violation of .709 was merged with his violation of *.009. Consequently, any merit that might possibly be found in Point I has no bearing on the outcome.

Affirmed.

20110214

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