Russo v. NJ Dept. of Corrections

• Decision Date: 28 September 1999
• Citation: 324 N.J. Super. 576,737 A.2d 183
• Parties: Anthony RUSSO, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
• Court: New Jersey Superior Court

737 A.2d 183

324 N.J. Super. 576

Anthony RUSSO, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

Superior Court of New Jersey, Appellate Division.

Submitted September 15, 1999.

Decided September 28, 1999.

Appellate submitted a pro se brief.

John J. Farmer, Jr., Attorney General, for respondent (Joseph L. Yannotti, Assistant Attorney General, of counsel; Jayroe Wurse, Deputy Attorney General, on the brief).

Before Judges BAIME and EICHEN.

The opinion of the court was delivered by BAIME, P.J.A.D.

Anthony Russo, a prison inmate, appeals from a decision of the Department of Corrections finding him guilty of operating an unauthorized business for profit, misusing electronic equipment, and improperly accepting something of value from another person (N.J.A.C. 10A:4-4.1(a).705, .009 and.752). An aggregate sanction of thirty days detention, 545 days administrative segregation, and loss of 365 days commutation time was imposed. Although appellant challenges the sufficiency of the evidence, the principal question presented is whether the prohibition against double jeopardy bars successive prison disciplinary proceedings for the same conduct. We hold that it does not.

I.

We need not recount the facts at length. An administrative search of appellant's cell revealed large quantities of gambling paraphernalia and 221 packs of cigarettes. In addition, wordprocessors belonging to appellant and his cellmate were confiscated along with thirty-four diskettes. Appellant and his cellmate were charged with conducting a gambling pool (N.J.A.C. 10A:4-4.1(a).602) and possession of unauthorized items (N.J.A.C. 10A:4-4.1(a).210). Appellant was acquitted of conducting a gambling pool because his cellmate confessed that the gambling paraphernalia found in their living quarters belonged to him. However, appellant was found guilty of possession of unauthorized items, the cigarettes. Sanctions were imposed with respect to that infraction.

Although the exact chronology of events is not entirely clear, it appears that Internal Affairs investigators reviewed the diskettes following disposition of the original charges. The diskettes disclosed that appellant was conducting a gambling operation in which inmate customers paid for the privilege of playing the odds with cigarettes. They additionally revealed that appellant was purchasing large quantities of cigarettes using outside agents who would pay by credit card. The cigarettes were sold to inmates who either paid appellant directly or directed relatives or associates to pay him through outside agents. The diskettes also disclosed that appellant was routinely accepting payment for assisting inmates in their appeals and related litigation. Based upon this evidence, appellant was found guilty of the charges that are the subject of this appeal.

II.

Initially, we are satisfied that the Department's factual findings are supported by substantial, credible evidence. See Jacobs v. Stephens, 139 N.J. 212, 222, 652 A.2d 712 (1995); Mayflower Securities Co., Inc. v. Bureau of Securities, 64 N.J. 85, 92-93, 312 A.2d 497 (1973); Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965). Indeed, the record reeks of appellant's guilt. Considering the proofs in their entirety, it cannot fairly be said that the Department went "so wide of the mark" that a mistake must have been made. Cf. State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964). We view as frivolous appellant's claim of evidential insufficiency. See R. 2:11-3(e)(1)(D).

III.

More troublesome is appellant's argument that the administrative prosecution was barred by the double jeopardy prohibition. Two related issues are presented. The threshold question is whether the double jeopardy clause is applicable to successive prison disciplinary proceedings. The second is whether the disciplinary proceedings instituted against appellant pertained to the same offense or conduct. Because protection under the New Jersey Constitution, art. I, ¶ 11, is generally coextensive with that afforded by its federal counterpart, see State v. Womack, 145 N.J. 576, 582, 679 A.2d 606,cert. denied, 519 U.S. 1011, 117 S.Ct. 517, 136 L.Ed.2d 405 (1996); State v. Koedatich, 118 N.J. 513, 518, 572 A.2d 622 (1990); State v. Churchdale Leasing, Inc., 115 N.J. 83, 107, 557 A.2d 277 (1989); State v. Barnes, 84 N.J. 362, 370, 420 A.2d 303 (1980); State v. Rechtschaffer, 70 N.J. 395, 404, 360 A.2d 362 (1976), we need not distinguish between the two sources of rights in our analysis of these issues.

A.

The double jeopardy clause bars a second prosecution for the same offense after an acquittal. It protects against a second prosecution for the same offense after conviction. And it bars multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-64 (1969). The bedrock principle is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual, thus subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, and enhancing the possibility that he may be found guilty. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199, 204 (1957). Prison disciplinary proceedings are not part of the criminal trial process. There is nevertheless no state interest in the imposition of prison discipline absent procedural fairness. Avant v. Clifford, 67 N.J. 496, 522, 341 A.2d 629 (1975). We thus look to the nature of the prison disciplinary process and the character of the sanctions imposed to determine whether the demands of procedural fairness compel application of double jeopardy principles.

The principal thrust of appellant's argument is that he was twice punished for the same conduct, and that the sanctions imposed constituted significant penal restraints upon his liberty. The most appropriate starting point for our analysis is thus the lengthening line of decisions equating civil and administrative penalties with criminal sentences for double jeopardy purposes. In United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the United States Supreme Court held that a civil or administrative penalty imposed in addition to a criminal sentence is violative of double jeopardy protections when it is based on the same conduct as the criminal charge and is punitive, rather than remedial, in nature. Id. at 446-48, 109 S.Ct. at 1900-02, 104 L.Ed.2d at 500-02. That holding was recently disavowed in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). As explained in Hudson, a court must first ask "whether the legislature `in establishing the penalizing mechanism, indicated either expressly or impliedly, a preference for one label or the other.'" Id. at____, 118 S.Ct. at 493, 139 L.Ed.2d at 459 (quoting United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749 (1980)). Even in those cases where the legislature has expressed an intention to establish a civil penalty, a court must inquire "whether the statutory scheme [is] so punitive in purpose or effect" as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Ibid. (quoting United States v. Ward, 448 U.S. at 248-49, 100 S.Ct. at 2641, 65 L.Ed.2d at 749 & Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149, 155 (1956)). The Court enunciated the following guidelines applicable to such an inquiry:

(1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment—retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned."

[Ibid. (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644, 661 (1963)).]

The Court added that "`only the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Ibid. (quoting United States v. Ward, 448 U.S. at 249, 100 S.Ct. at 2641, 65 L.Ed.2d at 742).

Within this analytical framework, we find substantial support for the proposition that the double jeopardy prohibition does not per se bar successive prison disciplinary prosecutions for the same infraction. We are concerned here with the application of regulations adopted by the Commissioner of the Department of Corrections. The Legislature has vested in the Commissioner broad discretionary power to "[d]etermine all matters of policy and regulate the administration of [penal] institutions...." N.J.S.A. 30:1B-6(g). Although neither the Legislature nor the Department has labeled prison disciplinary proceedings as either criminal or civil, we have never treated such proceedings as part of the criminal process. See Blyther v. New Jersey Dep't of Corrections, 322 N.J.Super. 56, 730 A.2d 396 (App.Div. 1999); Taylor v. Beyer, 265 N.J.Super. 345, 627 A.2d 166 (App.Div.1993). A criminal prosecution is a judicial proceeding that vindicates the community's interests in punishing criminal conduct. United States v. Whitney, 649 F.2d 296, 297 (5th Cir.1981). In contrast, the prison disciplinary process determines whether an inmate has violated the conditions of his incarceration and it is designed to advance the remedial goal of maintaining institutional order and security. While punitive and remedial interests are tightly intertwined in the prison setting, disciplinary sanctions do not constitute additional punishment. See Illinois v. Jones, 301 Ill. App.3d...