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McKay v. New Jersey Department of Corrections

Superior Court of New Jersey, Appellate Division

November 15, 2013

MIKE MCKAY, Defendant-Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, Plaintiff-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 6, 2013

On appeal from New Jersey Department of Corrections.

Mike McKay, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).

Before Judges Ostrer and Carroll.

PER CURIAM

Mike McKay is an inmate currently confined in Northern State Prison. He appeals from the final agency decision of the Department of Corrections (DOC) finding that he committed prohibited act *.803/*.203 – attempting to possess or introduce "any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff, " in violation of N.J.A.C. 10A:4-4.1(a) – and imposing disciplinary sanctions. We affirm.

On October 16, 2011, McKay was visited at the prison by Shanta Chinn, who was listed on his visit card as the mother of his child. While Chinn waited to enter the prison, a guard smelled marijuana emanating from her person. A drug-sniffing dog was brought in, and gave a positive alert for marijuana. Chinn was found to be in possession of a large quantity of drugs, including heroin and marijuana, and a cellular subscriber identification module (SIM) card. She was detained, interviewed, and placed under arrest. During her interview, Chinn admitted that she entered the prison facility with the drugs and the SIM card intending to give them to McKay, with whom she communicated by cell phone. An investigation revealed that Chinn had also visited McKay the previous day.

On October 18, 2011, McKay received notice of the disciplinary charge. A hearing on the charge was originally scheduled for October 19, 2011. McKay pled not guilty and requested the appointment of counsel substitute, which was granted. The hearing was then adjourned numerous times while awaiting receipt of a laboratory report. On January 19, 2012, the lab report confirmed that the substance seized from Chinn was heroin.

The hearing concluded on February 8, 2012. At the close of the evidence, Hearing Officer Nolley found McKay guilty of the charge and sanctioned him to 15 days detention with credit for time served; 365 days loss of commutation time; 365 days administrative segregation; 365 days of urine monitoring; permanent loss of contact visits; 90 days loss of visitation privileges; and 90 days loss of telephone privileges.

McKay filed an administrative appeal. On February 16, 2012, the DOC upheld Nolley's decision, finding that it was based on substantial evidence. McKay filed an appeal with this court. On October 22, 2012, the DOC's motion for temporary remand was granted.

At the remand hearing on November 20, 2012, McKay, again represented by counsel substitute, requested a summary of a confidential investigation report, and a copy of his visit card listing Chinn as his visitor. The hearing was adjourned to the following day, when McKay further requested copies of non-confidential investigation reports, and the visit logs for October 15 and 16, 2011. These requests were granted, and the items entered into evidence at the rehearing. On November 23, 2012, McKay requested the right to confront Investigator Kubik of the Special Investigations Division (SID). Hearing Officer Russell denied this request, stating "SID Kubik was not a witness to the events resulting in [McKay's] receipt of prohibited act *803/*203." McKay further asked to provide a statement for the record, which Russell granted. At the conclusion of the remand hearing, McKay was found guilty of the infraction, and the same sanctions were imposed.

On appeal, McKay variously contends that the finding of guilt was not supported by substantial evidence, that the rejection of his confrontation request denied him due process, and that Hearing Officer Russell should have ...


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