Opinion
DOCKET NO. A-2618-14T4
06-15-2016
LUIS DASILVA, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Luis DaSilva, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Gooden Brown. On appeal from the New Jersey Department of Corrections. Luis DaSilva, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief). PER CURIAM
This prisoner disciplinary appeal arises out of the same large-scale conspiracy to obtain contraband through compromised and corrupt prison staff that is the subject of our companion opinion issued today in A-5316-13. In that separate appeal, we affirmed the May 7, 2014 final agency decision of respondent New Jersey Department of Corrections (DOC), which found appellant Luis DaSilva guilty of and imposing sanctions for prohibited acts *.803/*.306 (attempting to commit conduct which disrupts or interferes with the security or orderly running of the corrections facility) and *.803/*.751 (attempting to give or offer any official or staff member a bribe or anything of value), both in violation of N.J.A.C. 10A:4-4.1.
In this appeal, DaSilva seeks review of the DOC's December 2, 2014 final agency decision finding him guilty of and imposing sanctions for prohibited act .802/.754 (attempting to give money or anything of value to, or accepting money or anything of value from, a member of another inmate's family with an intent to circumvent any correctional facility or Departmental rule, regulation or policy) in connection with his mother's receipt of $200 from the wife of another inmate.
DaSilva contends that since the present charge occurred during the same time period as the charges that are the subject of our companion opinion, A-5316-13, and for which he was found guilty, the present charge should have been joined with the companion charges. According to DaSilva, since the present charge was not joined with those charges, double jeopardy attaches and the DOC should now be barred from prosecuting him for the present charge. Because we hold that double jeopardy does not bar the prison disciplinary proceeding that is the subject of this appeal, we affirm.
I.
We incorporate by reference the factual background recited in our companion opinion, A-5316-13. In addition to those stated facts, the record reveals that the extensive investigation by the Special Investigations Division (SID) of the New Jersey State Prison (NJSP) into a large scale conspiracy to obtain contraband through compromised prison staff, uncovered evidence that DaSilva's mother, Maria Sacco, received a check in the amount of $200 from Hildegard Bartholomew, the wife of NJSP inmate Gregory Bartholomew. The check was discovered in May 2014, after the execution of a search warrant on the home of a civilian in an unrelated investigation commenced in 2013.
As a result, DaSilva was charged in a disciplinary report prepared by Senior Investigator Dolce with prohibited act *.704 ("perpetrating frauds, deceptions, confidence games, riots or escape plots"), in violation of N.J.A.C. 10A:4-4.1. On October 9, 2014, Sergeant Pires served the charge on DaSilva, conducted an investigation after which he determined the charge had merit, and referred the matter to a hearing officer for appropriate action.
The disciplinary hearing was originally scheduled for October 10, 2014, but was adjourned multiple times to permit Disciplinary Hearing Officer (DHO) Cortes time to review the extensive SID investigation. After reviewing the evidence, DHO Cortes amended the charge to prohibited act .802/.754 (attempting to give money or anything of value to, or accepting money or anything of value from, a member of another inmate's family with an intent to circumvent any correctional facility or DOC rule, regulation or policy).
The disciplinary hearing was conducted on November 12, 2014. DaSilva initially requested counsel-substitute but later retracted his request and entered "no plea" to the charge. When offered the opportunity to make a statement, DaSilva stated, "I was already charged [with] this offense in April 2014. The check is from 2012, which SID knew about when I [received] [the first] charge. Look [at] [N. J.A.C.] 10A:4-9.27." DaSilva was offered but declined the opportunity to call witnesses on his behalf and to confront and cross-examine adverse witnesses, but provided documents in support of his statement.
N.J.A.C. 10A:4-9.27(a), captioned "Reopening a disciplinary hearing," provides that "[a] finding of not guilty shall represent the final disposition of a disciplinary charge. Except when new information is discovered, an inmate may not be recharged with an offense for which the inmate has been found not guilty."
After hearing the testimony, reviewing all the evidence and considering DaSilva's arguments, DHO Cortes found DaSilva guilty of the amended charge. DHO Cortes made the following findings:
Upon review of the material provide[d] by SID . . . it clearly demonstrated that this [inmate] utilized his mother to receive money . . . from another involved [inmate's] family which was determined to have been used to pay for contraband being smuggled in to NJSP by corrupt staff, as well as to be used to pay (bribe) said corrupt staff. Upon review [of] all evid[ence], DHO believes [prohibited act] 802/754 is more appropriate . . . . [Inmate] pled no plea[,] claims the evidence used for this charge was known to SID during a[n] investigation [and] had been overlooked . . . . DHO discredits [inmate] claim noting exhibit A10. [Inmate] provided no further evidence to support his claims. As such, DHO will rely on confidential material . . . as well as exhibits . . . to support finding of guilt.
Exhibit A10 is an interoffice communication from Senior Investigator Dolce to DHO Cortes noting that the evidence "was unknown to this Investigator until the execution of the warrant" which occurred in May 2014. --------
Reasoning that DaSilva had to be held responsible for his actions, DHO Cortes imposed a sanction of fifteen days of detention, ninety days of Administrative Segregation to run consecutive to sanctions DaSilva was already serving, and sixty days of loss of commutation time. DHO Cortes also imposed a consecutive term of 120 days of loss of television, phone and radio privileges. On November 13, 2014, DaSilva filed an administrative appeal. On December 2, 2014, Assistant Administrator Campos upheld the guilty finding and the sanction. This appeal followed.
II.
DaSilva raises the following issue on appeal:
POINT I
THE DECISION OF THE DEPARTMENT OF CORRECTIONS MUST BE REVERSED AS THE ADJUDICATION OF GUILT IN THIS INSTANCE AMOUNTED TO DOUBLE JEOPARDY
Initially, we are satisfied that DaSilva was afforded all due process protections required by Avant v. Clifford, 67 N.J. 496, 525-33 (1975), and that the Department's factual findings are supported by "substantial, credible evidence in the record as a whole." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
We turn next to DaSilva's argument that the administrative prosecution was barred by the double jeopardy prohibition. The double jeopardy clause bars a second prosecution for the same offense after an acquittal, protects against a second prosecution for the same offense after conviction, and 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, 664-65 (1969). Protection under the New Jersey Constitution, art. 1, ¶11, is generally co-extensive with that afforded by its federal counterpart. See State v. Womack, 145 N.J. 576, 582 (1996), 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).
In Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 581-82 (App. Div. 1999), this court noted that although prison disciplinary proceedings are not part of the criminal process, an evaluation of the nature of the prison disciplinary process and the character of the sanctions imposed was necessary to determine whether the demands of procedural fairness compel application of double jeopardy principles. Within that analytical framework, the court concluded that the double jeopardy prohibition does not per se bar successive prison disciplinary prosecutions for the same infraction. Id. at 583.
The Court reasoned:
A criminal prosecution is a judicial proceeding that vindicates the community's interests in punishing criminal conduct . . . . 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. . . . Although disciplinary sanctions may affect the level of restraints imposed on an inmate and may alter privileges earned, they do not directly change the original term or sentence imposed. Moreover, the types of prison conduct that are subject to disciplinary sanctions do not necessarily correspond to statutory or common law crimes.
Practical considerations militate against rigid application of double jeopardy principles to prison disciplinary proceedings. Prisons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment. [D]isciplinary proceedings take place in a highly charged atmosphere where prison officials must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. . . . To thus apply in rigid fashion the full panoply of double jeopardy protections would impose an extreme burden on prison administrators.
[Id. at 583-84 (citations omitted).]
In this case, the offenses charged in the prior disciplinary proceeding were not the same offenses for which DaSilva was ultimately found guilty here, and were not based upon the same conduct. We are satisfied that the disciplinary infraction for which DaSilva was found guilty here, while perhaps occurring during the same time frame as the charges in the earlier proceeding, was a different offense. Thus, the subsequent disciplinary proceeding and sanctions pertained to a different offense and the double jeopardy prohibition is not applicable. Likewise, N.J.A.C. 10A:4-9.27 is inapposite and DaSilva's reliance misplaced.
Further, the record establishes that the $200 check was discovered in an unrelated investigation during the execution of a search warrant on a civilian's home in May 2014, the month following the conclusion of the disciplinary proceeding involving the earlier charges. The additional delay in bringing the charge was justified by exceptional circumstances as explained by the DHO:
The reason for the delay in preparing disciplinary charges was due to Law Enforcement Officials protocol in which the DOC allowed the Prosecutors Office sufficient time to develop evidence to obtain any search/arrest warrants for the large amount of civilians involved, thereby reducing the possibility of the criminal cases becoming tainted.Therefore, the delay in bringing the charge was rooted in rational, reasonable and prudent action on the part of DOC and does not offend notions of fundamental fairness. See Ramirez, supra, 382 N.J. Super. at 27.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION