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Russo v. New Jersey Department of Corrections

September 28, 1999

ANTHONY RUSSO, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



Before Judges Baime and Eichen.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

Submitted September 15, 1999

On appeal from the New Jersey Department of Corrections.

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 (1995); Mayflower Securities Co., Inc. v. Bureau of Securities, 64 N.J. 85, 92-93 (1973); Close v. Kordulak Bros., 44 N.J. 589, 599 (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 (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 co-extensive with that afforded by its federal counterpart, see State v. Womack, 145 N.J. 576, 582, cert. denied, 519 U.S. 1011, 117 S.Ct. 517, 136 L.Ed.2d 405 (1996); State v. Koedatich, 118 N.J. 513, 518 (1990); State v. Churchdale Leasing, Inc., 115 N.J. 83, 107 (1989); State v. Barnes, 84 N.J. 362, 370 (1980); State v. Rechtschaffer, 70 N.J. 395, 404 (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. ...


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