COUNSEL, IF YOU WILL PLEASE STEP FORWARD. MAY WE PLEASE HAVE APPEARANCE
S OF COUNSEL. (APPEARANCES TENDERED.) CHIEF JUSTICE RABNER:
WELCOME, COUNSEL. MR. LEVY, PLEASE GO AHEAD. NATHANIEL I. LEVY:
MAY I PLEASE RESERVE A FEW MINUTES FOR REBUTTAL. CHIEF JUSTICE RABNER: YES.
NATHANIEL I. LEVY: MAY IT PLEASE THE COURT. THE DOC AN THE PUBLIC
FOOTHOLD COUNT ON AND TO CARRY OUT THEIR DUTIES IMPARTIALLY, RESPONSIBLY AN WITHIN THE
CLEAR SET BY DOC POLICIES. BRIAN AMBROISE SHATTERED THAT TRUST THROUGH HIS UNDISPUTED
VIOLATIONS LOAN, DOC, WORK AS AN OFFICER AT EDNA MAHAN BUT THE DOC IMPROPERLY DOWNGRADED
HIS PENALTY TO A SIX-MONTH SUSPENSION. THIS COURT SHOULD FIND THAT DECISION
WAS UNREASONABLE AND SHOULD BE REVERSED OUTRIGHT FOR TWO INDEPENDENT REASONS.
FIRST, THE DECISION TO COUNSEL GRADE IS UNREASONABLE ON ITS FACE. THAT IS ALL THIS
COURTED WOULD HAVE TO SAY TO REVERSE THE DECISION BELOW. SECOND, THE UNREASONABLE
NAT OF THE C D C'S DECISION IS MADE WORSE BY ITS FAILURE TO GRAPPLE WITH OR GIVE RATE
TO PRISON SAFETY AN SECURITY. I WILL BEGIN WITH THE FIRST REASON, REGARDLESS
OF THE WEIGHT OWED TO DOC, THE C S C'S DECISION COULD NOT AN SHOULD NOT JUSTIFY A SUSPENSION.
MR. AMBROISE FAILED TO REPORT A KISS FROM AN INCARCERATED WOMAN IN HIS CUSTODY
DESPITE BEING TRAINED TO REPORT ANY UNTOURD AT TRACTION DWEEN OFFICERS AN PRISONERS
ESPECIALLY OF AN INTIMATE OR SEXUAL NATURE. THAT RAISES GRAVE CONCERNS FOR DOC WHETHER
HE CAN BE TRUSTED TO PROPERLY PROTECT THOSE IN HIS CARE AND WHETHER HE CAN BE TRUSTED
TO AVOID OTHER SEXUAL ACTS. THE FAILURE TO REPORT THAT KISS FOLLOWED OTHER
UNDULY SINGULAR ACTIONS HE TOOK WITH THE SAME WOMAN, EVEN PASSING ANOTHER MASS, MESSAGE
FROM ANOTHER, IS PREFERENTIAL TREATMENT THAT CAN ENDANGER HER, UNDERMINE HIS AUTHORITY
AN JEOPARDIZE THE INSTITUTION AS A WHOLE. THE C S C'S ONLY RESPONSE WAS TO EXPRESS CONCERNS
ABOUT HOW THE MATTER PROCEEDED ON A SEPARATE ULTIMATELY UNDISTINCT CHARGE RELATE TO ORAL
SEX SAYS NOTHING ABOUT WHAT THE PENALTY SHOULD BE FOR THE MISCONDUCT THAT WAS ESTABLISHED.
THAT AGENCIES MUST FACE THEIR DECISIONS ON A CONSIDERATION OF THE RELEVANT
FACTORS AND NOT IRRELEVANT ONES. THE CSC DID NOT EXPLAIN ITS MITIGATION DECISION
BECAUSE IT COULD NOT DO SO. NO REASONABLE JUSTIFICATION EXISTS FOR CSC FROM REMOVING
AN OFFICER AT EDNA MAHAN AFTER ENGAGING IN THIS MISCONDUCT. THE SECRETARY
BASIS FOR REVERSAL IS ALSO COMPELLING. THE CSC VIOLATED THE PRINCIPLE THAT EXPERTISE
MATTERS. THE CSC CORRECTLY ACKNOWLEDGED THAT SOMETIMES AN OEFRPS CAN SO THREATEN PRISON
SAFETY OR SECURITY THAT IT REQUIRES REMOVAL DESPITE THE USUAL APPROACH TO PROGRESSIVE
DISCIPLINE SO THE QUESTION HERE REALLY BOILS DOWN TO HOW SERIOUSLY THOSE OEFRPSS THREATEN
PRISON ORDER AND SAFETY; THAT'S A QUESTION ON WHICH DOC'S UNIQUE EXPERTISE SHAPED BY
DECADES OF PRISON MANAGEMENT AND YET THE CSC FAILED TO GIVE DOC'S EXPERTISE SETTING
WEIGHT. THERE IS NO DOUBT THAT CSC REVIEWS DE NOVO AN GETS TO MAKE THE FINAL
CAUSE BUT WHEN IT DOES SO IT HAS TO AT LEAST GRAPPLE WITH OR MORE AT LEAST ACCOUNT FOR
DOC'S KNOWLEDGE OF THE SAFETY CONSEQUENCES THAT WOULD FOLLOW FROM ALLOWING MR. AMBROISE
TO RETURN, ESPECIALLY IN A CASE LIKE THIS ONE. THAT'S HOW THE LONG STANDING
REGIME ESTABLISHED BY HEN REN BOED. WHAT IF BOTH OF THOSE LEGAL ERRORS IN
THE RECORD THIS COURT SHOULD REVERSE OUTRIGHT AN ALLOW TO ENSURE THAT IT CAN GUARANTEE
THE SAFETY OF THOSE AT ED THAT MC MAHON BUT IN THE ALTERNATIVE, ORAL SEX CHARGE, TO PRESENT
MR. AMBROISE'S STIPULATION FROM HIS SEPARATE CRIMINAL PROCEEDING AS TO THE VOLUNTARINESS
OF HIS RECORDED CONFESSION AN TO CROSS-EXAMINE HIM ABOUT THAT. AFTER ALL AN ALJ THAT
UNDERSTAND THAT THE CONFESSION WAS VOLUNTARY MIGHT BE MORE LIKELY TO CONFINE THE
CONFESSION WAS TRUE. BUT THIS COURT ONLY NEEDS TO REACH THE REOPENING QUESTION
IF IT FAILS TO REVERSE OUTRIGHT ON THE SUSTAINED CONDUCT, SO FOR ANY OF THOSE REASONS,
THE CSC PENALTY FOR SUSTAINED CONDUCT IS UNREASONABLE ON ITS FACE BECAUSE THE CSC
FAILED TO GIVE DOC'S EXPERTISE SIGNIFICANT WEIGHT AND BECAUSE THE SEPARATE ORAL SEX CHARGE
SHOULD BE REOPENED THIS COURT SHOULD REVERSE I WELCOME THE COURT'S QUESTIONS. I
THINK AN APPROPRIATE PLACE TO BEGIN IS WITH WHAT THE CSC ITSELF RECOGNIZED IN ITS DECISION
AND THE KEY PLACE TO LOOK IN THE RECORD IS AT P A 21. THE CSC RECOGNIZED THAT
THESE ACTIONS, THESE ACTS OF UNDUE FAMILIARITY AN FAILURE TO REPORT A CONDUCT UNBECOMING
WERE CLEARLY SERIOUS AN HIGHLY CONCERNING AN QUOTE TOUCH AT THE HEART OF SAFETY AN
SECURITY, END QUOTE AT EDNA MAHAN. AND IT UNDERSTOOD THAT THE DEGREE TO WHICH
THIS MISCONDUCT COME PROMISE MIEZED SAFETY AN SECURITY WAS THE PRIMARY KWOOU, QUEUE ON
THE MITIGATION ISSUE BECAUSE THE COMMISSION ALSO RECOGNIZED THAT REGARDLESS OF A PUBLIC
EMPLOYEE'S DISCIPLINARY RECORD, REGARDLESS OF THE DOC'S OFFICER'S DISCIPLINARY RECORD
THE SERIOUSNESS OF THE OEVENS OCCURRING IN THE ENVIRONMENT OF A CORRECTIONAL FACILITY
MAY NEVERTHELESS WARRANT REMOVAL WHERE IT COMPROMISES SAFETY AN SECURITY OF THE
INSTITUTION OR HAS THE POTENTIAL TO COMPROMISE PRISON ORDER AN DISCIPLINE AND THE COMMISSION
DREW FROM THIS COURT'S DECISION IN HENRY IT ALSO CITED CARTER ANOTHER PROGRESSIVE DISCIPLINE
CASE WHERE THIS COURT ESTABLISHED THE SAME PRINCIPLE THAT SOME KUBLTH THAT IS SO
EGREGIOUS CAN WARRANT REMOVAL DESPITE THE USUAL APPROACH TO THE DISCIPLINE. SO
IN OTHER WORDS, THE COMMISSION RECOGNIZED THAT THE EGREGIOUS ACTS HERE HAD SERIOUS SAFETY
AN SECURITY CONSEQUENCES AND THAT THAT IS OFTEN BOTH A NECESSARY AND SUFFICIENT CONDITION
FOR REMOVAL. NEVERTHELESS THE CSC THEN TOOK A LEAP AN SAID REMOVAL WAS NOT
WARRANTED, BUT IT DIDN'T GIVE THE A COGENT AND REASONABLE EXPLANATION OR REALLY, I WOULD
SUBMIT, ANY 'EXPLANATION AT ALL. THE ONE SENTENCE IT DID OFFER FLUNKS BASIC
REASONABLENESS REVIEW. AGAIN IT REFERENCED THE WAY THE MATTER PROCEEDED ON A TOTALLY
UNRELATED ORAL SEX CHARGE. THE OTHER SIDE POINTS TO NO AUTHORITY FOR THE PROPOSITION THAT
THE FACT THAT OTHER CHARGES WERE NOT PROVEN HAD ANY BEARING WHATSOEVER ON THE PENALTY
FOR CHARGES THAT WERE PROVEN AND WE'RE NOT AWARE OF ANY AUTHORITY OTHERWISE, BUT THE
COMMISSION ALSO REFERENCES THE FACT THAT MR. AMBROISE SHOULD HAVE AN OPPORTUNITY TO A
SECOND CHANCE AT THAT POINT THAT CONFIDENCE REALLY MISSES IS MARK BECAUSE AGAIN THE CSC
HAD ALREADY RECOGNIZED THAT THERE WERE DIRE SAFETY AND CONSEQUENCES HERE. AS
TO THE LAW HERE, IT IS HORN BOOK LAW THAT AN AGENCY DECISION HAS TO SHOW AND I AM QUOTING
THIS COURT'S DECISION IN HOWARD SAVINGS INSTITUTION OR HOWARD SAVINGS BANK, IT HAS
TO, QUOTE, SHOW HOW AN WHY THE AGENCY MADE UP ITS MIND BUT BASED ON THE RELEVANT FACTORS.
IT IS ALSO HORN BOOK LAW THAT AN AGENCY CANNOT CONSIDER FACTORS THAT IT WASN'T
SUPPOSED TO CONSIDER. HERE, WE PLAINLY HAVE AN ABSENCE OF EXPLANATION FOR
THIS COURT'S DECISION IN RIVER SIDE GENERAL HOSPITAL IN THIS REPORT RECORD. I THINK AS
THE CONDITION SAID THERE WERE REALLY BAD ACTS HERE THAT CAN WARRANT REMOVAL, OFTEN THEY
DO WARRANT REMOVAL AND YET WE'RE GOING TO GIVE MR. AMBROISE A MULL LIG BEGAN.
JUSTICE PATTERSON: LET ME TURN TO YOUR SECOND ARGUMENT FOR A MOMENT, THE ARGUMENT THAT
THERE SHOULD BE A REMAND FOR THE CONSIDERATION OF THE STIPULATION IN THE CRIMINAL CASE.
THE COMMISSION ARGUES, WELL, THAT'S NOT REALLY DISCOVERED EVIDENCE, THAT WAS
ON THE DOCKET FOR YEARS, PUBLIC DOCKET. IT'S NOT SOMETHING THAT WAS JUST UNAVAILABLE
TO THE DOC AT THE TIME OF THE PROCEEDINGS BEFORE THE ALJ. WHAT IS YOUR RESPONSE
TO THAT? NATHANIEL I. LEVY: I WILL CERTAINLY GIVE YOU MY RESPONSE, BRIEFLY
FIRST BUT AGAIN THIS COURT ONLY NEEDS TO REACH THAT QUESTION IF IT DECIDES --
JUSTICE PATTERSON: UNDERSTOOD LEAVE JUSTICE PATTERSON THE RESPONSE TO THAT IS COUNSEL
BELOW SPOKE WITH THE HUNTERDON COUNTY PROSECUTOR'S OFFICE WHO TRIED MR. AMBROISE IN
THE CRIMINAL CASE. COUNSEL FROM THAT OFFICE REPRESENTED TO COUNSEL BELOW THAT
THEY HAD GIVEN US ALL OF THE RELEVANT FILES FROM THAT PROCEEDING AND THERE IS NO REASON
FOR COUNSEL BELOW OR COUNSEL FROM THIS DEPARTMENT TO QUESTION THE REPRESENTATION OF ANOTHER
AGENCY, ANOTHER SISTER AGENCY IN THE STATE GOVERNMENT THAT THEY HAD GIVEN ALL THE
RELEVANT FILES. LATER ON AFTER THE ALJ'S INITIAL DECISION ISSUED SOMEONE SAID
OH WE FORGOT TO PROVIDE THIS ONE DOCUMENT WHICH TURNED OUT TO BE QUITE AN IMPORTANT DOCUMENT.
CHIEF JUSTICE RABNER: YOU WERE QUITE AWARE OF THE ONGOING CRIMINAL PROCEEDINGS
IN HUPT COUNT, CORRECTION? NATHANIEL I. LEVY: WE WERE AWARE, YES,
ALTHOUGH THOSE PROCEEDINGS HAD ENDED, YOUR HONOR BY THE TIME OF THE... CHIEF
JUSTICE RABNER: AND YOU HAD THE FULL RECORD YOU DESCRIBED AND THAT RECORD WOULD HAVE SHOWN
THE ABSENCE OF A MIRANDA HEARING, CORRECT? WHICH IS FAIRLY COMMON IN VIRTUAL
EVERY CRIMINAL CASE SO IS IT WRONG TO INFER THAT ANYBODY LOOKING AT THAT FILE WOULD REASONABLE
PLEA CONCLUDE, THEY CAN CONTEST THIS. THEY WALKED AWAY FROM AN ARGUMENT ABOUT
VOLUNTARINESS? NATHANIEL I. LEVY: I WOULD ONLY ADD, YOUR HONOR, THAT AS
TO THESE QUESTIONS ABOUT THE DEPARTMENT'S DILIGENCE IN SCANNING THE DOCUMENT OR DRAWING
THE RIGHT INFERENCES FROM THE FILES THAT WERE PROVIDED FROM HUNTERDON COUNTY I WOULD JUST
SAY THAT A LACK OF DILIGENCE WAS NOT THE REASON THE CSC ITSELF PROVIDED FOR NOT REOPENING
AN THE CSC'S DECISION IS WHAT UNDERSTAND REVIEW. THE CSC SEEMED TO MAKE THE
DECISION OR SAY AT P A 19 IN A SENTENCE OR TWO THAT THE STIPULATION AS TO THE VOLUNTARINESS
OF THE CONFESSION WASN'T EVEN LEGALLY RELEVANT BECAUSE THE ALJ HERE MADE CREDIBILITY
FINDINGS. JUSTICE WAINER APTER: CHIEF JUSTICE RABNER: SHOULD
YOU BE PERMITTED TO REOPEN A PROCEEDING IF ALL THE INFORMATION WERE IN PLAIN SIGHT AN
HAD NOT BEEN ARGUED IN THAT PROCEEDING? NATHANIEL I. LEVY: SO I STILL THINK
THE ANSWER IS YES, YOUR HONOR. I THINK IT IS IMPORTANT JUST TO NOTE THAT THE STANDARD
HERE FOR REOPENING THE ADMINISTRATIVE PROCEEDING IS MORE FLEXIBLE THAN WHAT YOU SEE WITH
THE STANDARDS FOR REOPENING DISCOVERY IN CRIMINAL OR CIVIL LITIGATION AND CERTAINLY MORE
LENIENT THAN THE STANDARD FOR ORDERING A NEW TRIAL AFTER SEPARATE EVIDENCE IN NORMAL
LITIGATION SO I THINK THIS COURT'S DECISION IN A CASE LIKE MATTER AND HELEN MAKES THAT
PRECISE POINT. AGAIN, WE ONLY NEED TO DEMONSTRATE GOOD CAUSE AND I THINK THE
RELEVANCE COMBINED WITH THE REPRESENTATION -- THE RELEVANCE OF THE STIPULATION COMBINED
WITH THE REPRESENTATION OF H C P O ESTABLISHES GOOD POSTURE. JUSTICE WAINER
APTER: JUST TO MAKE SURE, THOUGH, THIS IS ONLY AN ARGUMENT IN THE ALTERNATIVE. IF
WE WERE TO AGREE WITH YOU THAT THE CSC ACTED ARBITRARY AN CAPRICIOUSLY IN REGARDS TO THE
PENALTY WE WOULD NOT REACH THIS AT ALL. NATHANIEL I. LEVY: ABSOLUTELY,
CORRECT, YOUR HONOR. JUSTICE WAINER APTER: THE ATTORNEYS FOR DOC IN THIS
MATTER ARE NOT CRIMINAL ATTORNEYS, CORRECT? NATHANIEL I. LEVY: CORRECT,
YOUR HONOR. JUSTICE WAINER APTER: SO THEY THEMSELVES ARE NOT PROSECUTOR
REGARDLESS OF WHETHER IT IS AT A COUNTY OR STATE LEVEL. NATHANIEL I. LEVY:
THEY ARE NOT PROSECUTORS YOUR HONOR. JUSTICE WAINER APTER: THANK YOU.
NATHANIEL I. LEVY: SO I BELIEVE I MOSTLY TOUCHED UPON THE FIRST REASON FOR
REVERSAL HERE. I WOULD LIKE TO JUST BRIEFLY ADD A WORD ABOUT THE SECOND, WHICH IS THAT
REGARDLESS -- SORRY. WHICH IS THAT THE PROPER OR SIGNIFICANT WEIGHT WASN'T GIVEN TO DOC'S
EXPERTISE ON PRISON SAFETY AN SECURITY IN THIS MATTER. LET ME VERY BRIEFLY
JUST EXPLAIN WHAT THAT MEANS. WE'RE NOT ASKING FOR THE RECOGNITION OF A NEW
STANDARD. WE'RE SIMPLY ASKING FOR THE FAITHFUL APPLICATION, IF THIS COURT EVEN NEEDS
TO REACH THAT ISSUE OF HEN REAND BOED ITSELF SO I THINK THOSE CASES RECOGNIZE THAT AGAIN,
AS I MENTIONED AGENCIES HAVE TO BASE THEIR DECISION ON ALL THE RELEVANT FACTORS WIN OF
THESE FACTORS IN DOC DISCIPLINARY PROCEEDINGS IS DOC'S EXPERTISE ON SAFETY AN SECURITY.
THE CSC GETS TO REVIEW, IT HAS TO SHOW THAT IT GRAP MRS. WITH OR GIVES
SIGNIFICANT VIEW TO THE, AND THE CONSEQUENCES THAT WOULD FLOW FROM ALLOWING THE BAD ACTOR
TO RETURN. HERE, WE SEE SOME RECOGNITION OF THOSE SAFETY CONSEQUENCES
BECAUSE CSC AGREES WITH DOC, BUT THEN THERE IS NO GRAPPLING WITH DOC'S VIEW THAT ALLOWING
MR. AMBROISE TO RETURN WOULD FURTHER COMPROMISE SAFETY AN SECURITY TO A DEGREE THAT IT'S
INTOLERABLE AND TO A DEGREE THAT WOULD COMPROMISE THE WORK THAT THE DEPARTMENT IS TRYING
TO DO. JUSTICE PATTERSON: BOTH BODE DEN AND HEN REIF I AM NOT MISTAKEN
REITERATE -- THIS IS DE NOVO REVIEW. THEY BOTH SEEM, READ TOGETHER, THEY BOTH SEEM TO
REQUIRE AN ACKNOWLEDGMENT BY THE REVIEWING AGENCY THAT THE DOC'S POLICY OF DETERMINATIONS
ARE GIVEN SIGNIFICANT WEIGHT BECAUSE OF THE REALLY UNIQUE MISSION OF THE DOC AND THE
RESPONSIBILITIES OF THE DOC. DOES IT REQUIRE -- YOU DON'T READ HEN HENRY REAND
BOED TO -- DOES IT REQUIRE ULTIMATELY A DIFFERENT DECISION THAT WOULD BE MADE WITHOUT
THAT SPECIAL CONSIDERATION AS LONG AS THE AGENCY IS ACKNOWLEDGING THE IMPORTANCE OF THE
DOC'S DETERMINATION AND THE IMPORTANCE OF THE POLICIES BEHIND THE DOC'S DEFRMGS WITH
RESPECT TO A DISCIPLINARY MATTER. DO YOU SEE WHAT I AM SAYING?
NATHANIEL I. LEVY: THERE IS A LOT IN THERE LET ME TRY TO RESPOND TO EVERYTHING AFRN PLEASE
CORRECT ME IF I AM MISSING PART OF THE QUESTION. JUSTICE PATTERSON: I CAN
BREAK IT DOWN IF YOU WANTS ME TO BUT GIVE IT A TRY. NATHANIEL I. LEVY:
CERTAINLY THE CSC CAN REACH A DIFFERENT CONCLUSION THAN DOC THAT'S PART OF IT'S STATUTORY
AUTHORITY AND MANDATE IT IS JUST THE GRAPPLING AN APPLICATION OF WEIGHT PART WHICH IS
ALL WE'RE REALLY PRESSING SO IT CAN REACH A DIFFERENT OUTCOME BUT IT HAS TO SHOW SOME
NECESSARY LINKS IN THE CHAIN AS TO HOW IT GETS TO THAT CONCLUSION AN HERE WE DON'T HAVE
THOSE LINKS IN THE CHAIN. AGAIN, THIS COURT NEED ONLY REACH THIS QUESTION
OF HOW TO PROPERLY READ AND APPLY HENRY BODE DEN TOGETHER IF IT DECIDES NOT TO REVERSE
OUTRIGHT BECAUSE THE EXPLANATION BELOW WAS ARBITRARY AN CAPRICIOUS AND CANNOT BE
SUPPORTED -- JUSTICE PATTERSON: WE HAVE THE COMMISSION IN ITS DECISION NOTING
THE IMPORTANCE OF PROGRESSIVE DISCIPLINE, NOTING THAT -- BUT ON THE OTHER SIDE OF THAT
COIN, NOTING THE IMPORTANCE OR THE FACT THAT A SINGLE ACT IN A CORRECTIONAL SETTING CAN
HAVE A PROFOUND IMPACT SECURITY OF THE FACILITY. SO, IT DETERMINED THAT SIX
MONTHS WAS THE CORRECT -- THE CORRECT LEVEL FROM ITS POINT OF VIEW. IT DOES SEEM TO HAVE
-- MY QUESTION TO YOU IS: DOESN'T IT SEEM TO HAVE CONSIDERED THE POLICY CONSIDERATIONS
THAT APPLY TO DOC AND DONE WHAT HENRY TOLD IT IT HAD TO DO LEAVE NO, YOUR HONOR.
THE ONLY EXPLANATION FOR THE MITIGATION -- CERTAINLY, THERE IS A RECOGNITION OF THE
STANDARD OF THE FACT THAT CASES LIKE HENRY, CARTER, HERRMANN ALL SAY THAT A ONE TIME
OFFENSE CAN BE SO EGREGIOUS AN SO I'M PEARL SAFETY OF THE PUBLIC OR A CERTAIN SENSITIVE
POPULATION THAT THAT PERSON HAS TO GO AND THEN IT THEN SAYS IN A ONE-SENTENCE EXPLANATION,
NEVERTHELESS, THE WAY THIS ENTIRE MATTER PROCEEDED BASICALLY MEANS THAT THIS PERSON
CAN BE TRUSTED TO RETURN AFTER SIX MONTHS SO THERE IS NO GRAPPLING OR NO -- JUSTICE
PATTERSON: WHAT DOES BLANK REQUIRE BY WAY OF GRAPPLING. IT SEEMS THAT IT REQUIRES --
THE COMMISSION CAN'T LEAP OVER THE FACT THAT THIS IS THE DOC. IT IS NOT JUST ANY AGENCY
AND IT HAS VERY IMPORTANT AND YOU KNOW, GRAVE RESPONSIBILITIES FOR THE SAFETY OF INMATES
AND STAFF, BUT IF IT DOES CONSIDER THOSE ISSUES AND THEN RULES AGAINST OR COMES TO A
DIFFERENT CONCLUSION, THEN THE THAN THE DOC, THEN WHY HAS IT FAILED TO MEET THE HENRY TEST.
NATHANIEL I. LEVY: I THINK HENRY ITSELF IS A PER ILLUSTRATION. THEY ARE
THE CSC'S PREDECESSOR. DECIDED TO DOWNGRADE THE PEMENT AND IMPOSE ONLY A SUSPENSION FOR
CONDUCT -- FOR TWO OFFICERS WITH WHOSE CONDUCT WAS AT ISSUE IN THE CASE, PUT ASIDE OFFICERS
TORE REMEMBERS, JUST FOCUS INSTEAD ON OFFICER HENRY WHO FALSIFIED A REPORT ABOUT HIS
FINDINGS OF MARIJUANA. HE SAID HE FOUND NO, MA'AM IN THE WEIGHT LIFTING SHACK WHEN INSTEAD
HE FOUND MARIJUANA ON AN INCARCERATED PERSON'S BED AND HE LIED IN GOOD FAITH BECAUSE HE
WASN'T TRYING TO PROTECT THE INCARCERATED PERSON. HE WAS ACTUALLY JUST CONDUCTING HIS
OWN INVESTIGATION. THIS COURT SAID THAT SO I'M PEARL SECURITY THAT WE'RE GOING TO TAKE
FULLY INTO ACCOUNT DOC'S VIEW, THE ONLY WAY THE COURT COULD HAVE RECOGNIZED THAT THAT
GOOD FAITH FALSIFICATION OF A REPORT HAD SUCH SERIOUS SAFETY CONSEQUENCES WAS TO REALLY
ACCOUNT FOR DOC'S PRESENTATION OF THE VIEW THAT THOSE HAD SERIOUS SAFETY CONSEQUENCES.
JUSTICE PATTERSON: SO YOU'RE SAYING THAT IN HENRY THE CONSIDERATION OF
DOC'S POINT OF VIEW AND ALL OF THE RESPONSIBILITIES THAT DOC HAVE CHANGED THE
RESULT. IS THAT REALLY WHAT HENRY REQUIRES AS A STANDARD? YOU'RE
TALKING ABOUT GRAPPLING WITH IT, BUT IF THERE IS A DECISION THAT REFLECTS FROM THE POINT
OF VIEW OF AN APPELLATE COURT THAT THESE CONSIDERATIONS WERE PART OF THE MIX AN THEY
WERE TO SOME EXTENT ACCEPTED BY THE COMMISSION, BUT THEY WERE NOT ENTIRELY ACCEPTED BY
THE COMMISSION, WHY IS THAT A FAILURE UNDER HENRY? NATHANIEL I. LEVY:
WELL, WE DON'T SEE ANY INDICATION OF WHY THEY WEREN'T ACCEPTED. I DON'T WANT TO SOUND
LIKE A BROKEN RECORD YOUR HONOR, BUT THE ONE SENTENCE EXPLANATION ABOUT HOW THIS ENTIRE
MATTER PROCEEDED ON A SEPARATE CHARGE DOES NOT SHOW THE COMMISSION'S THINKING ABOUT WHY
THEY ACCEPTED THE CONSEQUENCES OF THE MISCONDUCT, BUT THEN NONETHELESS REJECTED THE DOC'S
VIEW ABOUT WHY THAT WAS PT SO SERIOUS THAT HE COULD RETURN. FOR INSTANCE,
THE CSC MIGHT HAVE SAID SOMETHING ABOUT HOW MR. -- SOMETHING ABOUT MR. AMBROISE'S, YOU KNOW,
PERMANENT CHARACTER, INDIVIDUAL CHASHLTH CHARACTER, SOMETHING ABOUT WHY HE NOND THE
TRIAL BEFORE THE ALJ THAT HE COULD ONCE AGAIN BE TRUSTED. IT MIGHT HAVE MAID A POINT ABOUT
CAR YOUNG IT CONSISTENT DISCIPLINE ACROSS THE T STATE WORK FORCE, THIS RISES TO THE LEVEL
COMPARABLE IN OTHER CASES WHERE A SUSPENSION WAS AWARDED. WE DON'T SEE ANY OF THAT HERE.
WE SEE A NONSECRETARY QUIT TUR, ONE SENTENCE. JUSTICE FASCIALE: THE CSC
FURTHER FOUND TO YOUR POINT, QUOTE, GIVEN THE WAY THIS ENTIRE MATTER PROCEEDED, BUT THEN
IT CONTINUED AND ACKNOWLEDGING THAT THE MOST SERIOUS MISS CONDUCTED WAS NOT PROVEN THE
CSC CANNOT FIND THAT AMBROISE SHOULD BE REMOVED WITHOUT A SECOND OPPORTUNITY TO DEMONSTRATE
HIS COMPETENCE AND IT MS WEIGHED ITS LACK OF DISCIPLINARY RECORD SO IT'S A LITTLE MORE
THAN SIMPLY THIS ONE SENTENCE GIVEN THE WAY THIS ENTIRE MATTER PROCEEDED.
NATHANIEL I. LEVY: I ASSUME YOU'RE FOCUSED ON THE WORD GIVEN THIS ENTIRE MATTER PROCEEDED.
I DO THINK ALL OF THAT IS ENCOMPASSED CLOP PAPER SHUFFLING CAN'T HEAR CLOP. I THINK
YOUR HONOR, THE ABSENCE OF THAT EXPLANATION IS CLEAR ON ITS FACE. I DON'T THINK ANY OF THE
OTHER WORDS AFTER THE CLAUSE THAT I HAD INITIALLY JUST FOCUSED ON REALLY HELPS THE COMMISSION'S
CASE HERE. JUSTICE SOLOMON: BUT IT SEEMS LIKE THE EXPLANATION IS THAT DISMISSAL
WAS DETERMINED BASED ON A HOST OF VIOLATIONS INCLUDING ADDITIONAL SEXUAL OFFENSES THAT
WERE NOT PROVEN OR CONSIDERED AND, CLFR, IT CONCLUDED THAT THE MOST SERIOUS CHARGES NOT
HAVING BEEN DEMONSTRATED, THEY FOUND IT NEVERTHELESS -- AND THEY DID SAY THAT SERIOUS
VIOLATIONS THAT IMPACTED SECURITY. I KNOW THAT THEY SAID THEY INCREASED THE PENALTY FROM
A 20-DAY SUSPENSION TO A SIX-MONTH SUSPENSION; THAT'S A PRETTY SUBSTANTIAL INCREASE AFTER
EXPLAINING WHY THEY DIDN'T AGREE WITH THE 20-DAY BUT THEY THOUGHT IT WAS SERIOUS AN SERIOUS
NUF TO WARRANT SIX MONTHS IF NOT TERMINATION BECAUSE THE MOST SERIOUS CHARGES WEREN'T
PROVEN. HOW DOES THAT NOT CARRY OUT THEIR RESPONSIBILITY. NATHANIEL
I. LEVY: THERE ARE TWO PARTS TO MY ANSWER YOUR HONOR. ONE IS THAT THE SIX-MONTH
SUSPENSION, EVEN INCREASING IT FROM 20 DAYS WHICH IS TRULY WOULD BE UNJUSTIFIED HERE BUT
SIX MONTHS IS ALSO UNJUSTIFIED ON THIS RECORD AND SECONDARILY, SEPARATELY IT DIDN'T CARRY
OUT THEIR DUTY TO EXPLAIN. THANK YOU FOR ASKING THE QUESTION BECAUSE THE
QUESTION GETS AT WHY WAS THIS CONDUCT REALLY SO SERIOUS AND WHY IS THE ONLY RESULT WARRANTED
ON THE BASIS OF THIS SUSTAINED CONDUCT REMOVAL AND I WILL TELL YOU WHY. THERE
WERE TWO ACTS THAT WERE SUSTAINED HERE AS PART OF AN OVERALL PATTERN OF JUN DUAL FAMILIARITY
AN FAILURE TO REPORT BY MR. AMBROISE. FIRST HE RELAYED A MESSAGE FROM ONE
INCARCERATED PERSON TO ANOTHER. THAT IS A FLAGRANT VIOLATION OF THE UNDUE FAMILIARITY
POM SEE. ANY KINDS OF DEMONSTRATION OF FAVORITISM OR PREFERENTIAL TREATMENT PUTS A
TARGET ON THE BACK OF THE INCARCERATED PERSON AND LIKEWISE JUST THE SAME FOR THE OFFICER
AND THINGS ESCALATE AS THE BOED DEN COURT RECOGNIZED. JUSTICE SOLOMON:
DOES THAT INTO ITSELF WARRANT TERMINATION AND FAILURE TO TERMINATE MEANS THAT CSC HAS TO BE
REVERSED IN EVERY CASE? NATHANIEL I. LEVY: SO THE DEPARTMENT DID PRESS
-- EVEN WHEN IT WAS ARGUING THAT THE ORAL SEX CHARGE SHOULD BE SUSTAINED, IT WAS ALSO
ARGUING THROUGHOUT THE PROCEEDING BELOW THAT THE VIOLATION OF THE UNDUE FAMILIARITY POLICY
ALONE AND THE RELATED FAILURE TO REPORT A KISS FROM A WOMAN INCARCERATED AN A MAN ALONE
WARRANTED REMOVAL SO THAT ARGUMENT WAS MADE. JUSTICE SOLOMON: I UNDERSTAND
IT WAS MADE CSC DIDN'T AGREE WITH YOU. NATHANIEL I. LEVY: CORRECT. AND,
AGAIN, OUR POSITION IS NOT THAT CSC HAS TO AGREE WITH DOC IN EVERY CASE BUT IN UNDUE
FAMILIARITY CASES WHICH ARE REAL REALLY A SMALL FRACTION OF DOC DISCIPLINARY CASES WE DO
THINK THE MISCONDUCT IS GENERALLY ALWAYS SUFFICIENTLY EGREGIOUS TO WARRANT REMOVAL.
THE. CHIEF JUSTICE RABNER: CAN YOU TELL US WHETHER UNDUE FAMILIARITY CASES
OF THIS NATURE THAT YOU'VE JUST DESCRIBED PASSING A NOTE TO ANOTHER INMATE COMMONLY RESULT
IN REMOVAL? NATHANIEL I. LEVY: I'M NOT AWARE OF ANOTHER CASE WITH AN ANALOGOUS
FACT PATTERN WHERE THERE IS BOTH PASSING A MESSAGE TO ANOTHER INMATE AND THEN A RELATED
ACT OF INTIMACY THAT IS NOT REPORTED WITH THAT SAME INMATE BUT I THINK THERE ARE CASES
BOTH RESOLVED AT THE COMMISSION AND AT THE APPELLATE DIVISION LEVEL WHERE UNDUE
FAMILIARITY IS REALLY STRICTLY ENFORCED. BECAUSE I THINK THE PRECEDENT IS CLEARLY
ESTABLISHED IT FALL WELL ON ONE SIDE OF THE LINE. JUSTICE WAINER APTER:
APPEND THAT'S BECAUSE IN HENRY FOR EXAMPLE, THE INCIDENT THAT WAS FOUND TO WARRANT
TERMINATION AND TO CAUSE THE CSC EASE DECISION TO BE ARBITRARY AN CAPRECIA PREESH SHUS
WAS FALSIFYING BHER THE PERSON FOUND MARIJUANA. NATHANIEL I. LEVY: YES AND
IN GOOD FAITH, NOT TO PROTECT ANYONE OR TO BLANK PREFERENTIAL TREATMENT. JUSTICE
WAINER APTER: WHAT WAS THE FACT PATTERN IN BOED DEN THAT LED TO THE SAME CONCLUSION THAT
THE PERSON HAD TO BE REMOVED AND REVERSING THE CSC'S DECISION. NATHANIEL I.
LEVY: IN BOED DEN THE CORRECTION OFFICER HAD PLAYED CARDS WITH INMATES AN BROUGHT
CIGARETTES IN TO PAY DOWN GAMBLING DEBTS. JUSTICE FASCIALE: THE ALJ SPECIFICALLY
FOUND THAT AM BROES DID NOT COMMIT THE, AMBROISE DID NOT COMMIT THE MORE SERIOUS OFFENSE
SHE MADE CREDIBILITY FINDINGS. HOW DO WE FACTOR THOSE FINDINGS INTO THIS
ANALYSIS? NATHANIEL I. LEVY: I DON'T THINK THE CREDIBILITY FINDINGS AS TO
THE MORE SERIOUS CHARGES FACTOR AT ALL INTO THE PRIMARY ISSUES BEFORE THE COURT WHICH IS
WHETHER THE EXPLANATION TO MITIGATE HERE WAS ARBITRARY AN CAPRICIOUS SO THIS COURT NEED
REACH ANY OF THE ISSUES RELATED TO VOLUNTARINESS AN CREDIBILITY AN THE RELATED STIPULATION
IN THE CRIMINAL CASE IF IT REVERSES THE CSC. JUSTICE PATTERSON: ON YOUR
FIRST POINT WE SHOULD TREAT THIS AS IF THOSE ALLEGATIONS ARE THE MORE SERIOUS SEXUAL
OFFENSE WERE NEVER MADE. WE DEFER TO THE CREDIBILITY FINDINGS I KNOW YOU WOULD PREFER
WE NOT BUT WE DEFER TO THE CREDIBILITY FINDINGS AND YOU'RE NOT CHALLENGING THOSE HERE
EXCEPT INSOFAR AS THE STIPULATION MAY FACTOR INTO IT. NATHANIEL I. LEVY:
CORRECT, YOUR HONOR, WE ARE NOT CHALLENGING FINDINGS OF FACT OR CREDIBILITY MADE BY THE
ALJ I WOULD ONLY ALTER THAT SLIGHTLY ABOUT PRETENDING THAT THOSE FINDINGS WERE NEVER
MADE. JUSTICE PATTERSON: I AM NOT SAYING PRETENDING THE FINDINGS WERE EVER
MADE BUT LOOKING HERE ONLY AS TO THE SUBSTANTIATED CHARGES LEE LEAVE REVERSE SL IS
WARRANTED PURELY AND SOLELY ON THE BASIS OF THE VERY SERIOUS SUBSTANTIATED CHARGES OF UNDUE
FAMILIARITY AND FAILURE TO REPORT. THEY ARE ALSO CHARGED AS CONDUCT UNBECOMING AND THIS
COURT'S CASES ARE LEGION SAYING VARIOUS CONDUCTS OF, UNBECOMING BY VARIOUS LAW ENFORCEMENT
OFFICERS CAN WARRANT REMOVAL. THE COURT: NOT ONLY YOU HAVE HIS TESTIMONY
AT THE HEARING, SETTING ASIDE THE MORE SERIOUS CHARGE THAT THE INMATE KISSED HIM AN HE
DID NOT REPORT WHICH SUPPORTS THE UNDUE FAMILIARITY CHARGE ON ITS OWN.
NATHANIEL I. LEVY: SORRY WAS YOUR HONOR'S QUESTION WHETHER TO FAILURE TO REPORT THE
KISS ITSELF WAS UNDUE FAMILIARITY? THE COURT: YES. HE'S ADMITTED TO THAT,
THAT WAS HIS TESTIMONY AT THE HEARING. NATHANIEL I. LEVY: YES.
JUSTICE WAINER APTER: ARE YOU AWARE OF ANY CASE IN WHICH AN OFFICER RETAINED HIS POSITION
AFTER AN UNDUE FAMILIARITY CHARGE OR THE FAILURE TO REPORT AN INTIMATE PHYSICAL CONTACT
WITH AN INMATE CHARGE WERE SUBSTANTIATED. NATHANIEL I. LEVY: I AM NOT AWARE
OF ANY SUCH CASE YOUR HONOR. JUSTICE WAINER APTER: THANK YOU.
NATHANIEL I. LEVY: IF YOU HAVE NO FURTHER QUESTIONS I WILL SEE YOU ON REBUTTAL.
CHIEF JUSTICE RABNER: THANK YOU, MS., MR. LEVY, MS. HUERTAS. ELYLA
HUERTAS: GOOD AFTERNOON, AND MAY IT PLEASE THE COURT. I BELIEVE MY COLLEAGUE
MR. LEVY ADEQUATELY ADDRESSED THE POINTS BEFORE THE COURT TODAY SO I WOULD LIKE TO TAKE
A FEW MINUTES TO PROVIDE CONTEXT TO THE IMPACT OF THIS CASE. I BELIEVE MY CLIENTS ARE
CLOP PAPER SHUFFLE CLOP. AS YOU KNOW I REPRESENT TWO GROUPS OF WOMEN CURRENTLY
INCARCERATED AT THE ED H ED THAT MC MAHON FACILITY S EDNA MAHAN FACILITY AS WELL AS THE
BOARD OF TRUSTEES. THAT WORD IS MADE UP AS PEOPLE WHO THIS CURRENT GOVERNOR APPOINTED
FOR THE PURPOSE OF ADDRESSING THE LONG STANDING AN WELL DOCUMENTED ISSUE OF VIOLENCE
AND ABUSE, SEXUAL ABUSE WE KNOW TO BE OCCURRING AT THE FACILITY. THIS IS ALL
PUBLIC RECORD AN VERY WELL KNOWN. BECAUSE OF THAT, THEY WANT YOU ALL TO KNOW
THE PROFOUND CONCERNS THAT THEY HAVE ABOUT THE POSSIBILITY OF MR. AMBROISE RETURNING TO
THE FACILITY. AND THE CIVIL SERVICE COMMISSION SIMPLY FAILS TO TAKE INTO ACCOUNT
ANY OF THIS IMPORTANT CONTEXT AND DOESN'T EVEN MENTION IT. FROM THE BRIEF,
MY CLIENT'S REALLY THE WANT TO TALK ABOUT NOT ONLY THAT PROFOUND IMPACT BUT ALSO THE
IDEA OF BLTH ABILITY BECAUSE THERE IS SOMETHING WIDER IN THE FACILITY BECAUSE THEY ARE
BEING HELD ACCOUNTABLE FOR THEIR ACTIONS. HOWEVER, IT SEEMS AS THOUGH THERE SEEMS TO BE
A DIFFERENT STANDARD FOR CORRECTIONS OFFICERS, AT LEAST FROM THE DECISIONS BELOW.
AND, YOU KNOW, I KNOW THE COURT HAS READ THE BRIEF AND SO I WON'T GO THROUGH THE STORY
OF EVERYONE THAT WE SPOKE TO, EVERY ONE OF MY CLIENTS, BUT I DO WANT TO TAKE A MOMENT
TO HIGHLIGHT SOMETHING SAID BY A WOMAN WHO I REFER TO AS PERSON C AND SO SHE SAYS THAT
SHE FINDS THE LOWER COURT'S DECISION CONFUSING BECAUSE IT SEEMS TO CREATE THIS GRAY AREA
BETWEEN WHAT IS ACCEPTABLE AND WHAT IS UNACCEPTABLE. THAT GRAY AREA DOES
NOT EXIST FOR THE PEOPLE INCARCERATED THERE AND SO SHE FEELS AS THOUGH THE BADGE THAT
CORRECTION'S OFFICERS WEAR THEY SHOULD BE HELD TO A HIGHER STANDARD OF ACCOUNTABILITY AND
NOT A LOWER ONE. THERE IS A GOOD REASON FOR THAT. WE TASK OUR CORRECTION OFFICERS WITH
AN IMMENSE AMOUNT OF RESPONSIBILITY. THEY ARE OFTENTIMES IN CHARGE OF EVERY ASPECT OF
INCARCERATED PEOPLE'S LIVES. A LOT OF TIMES INCARCERATED PEOPLE CAN'T GO
EAT LUNCH, THEY CAN'T GO OUTSIDE. THEY ARE TOLD WHEN TO WAKE UP, WHEN TO GO TO SLEEP,
SOMETIMES EVEN WHEN THEY CAN GO TO THE BATHROOM. THEY CAN'T DO THAT WITHOUT THE PERMISSION
OF CORRECTION OFFICERS SO THEY HAVE THIS INCREDIBLE POWER OVER INCARCERATED PEOPLE AND
PEOPLE IN STATE CUSTODY. BECAUSE OF THAT, WE MUST MAKE SURE THAT THEIR JUDGMENT
IS IMPECCABLE. MR. AMBROISE HAS ALREADY DEMONSTRATED AT LEAST IN THIS INSTANCE THAT
HE DOES NOT HAVE THE TYPE OF JUDGMENT THAT IS COMPATIBLE WITH WHAT IS NEEDED IN ORDER TO
WORK IN THIS ENVIRONMENT. AND, LIKE I SAID, THAT IS EXTREMELY TROUBLING WHEN
WE'RE PUTTING PEOPLE WITH THAT KIND OF POWER WITH SUCH A VULNERABLE POPULATION. I
AM NOT WEIGHING IN ON THE UNSUBSTANTIATED CLAIMS. I AM TALKING ABOUT WHAT WE DO KNOW
HERE, WHAT HAS BEEN ADMITTED BY MR. AMBROISE, WHAT IS NOT IN DISPUTE BY THE DECISIONS
BELOW AND THAT IS THAT, YOU KNOW, MR. AMBROISE HAS ALREADY SHOWN THAT HE ENGAGED IN A
KISS WITH AN INCARCERATED WOMAN AN THEN CHOSE NOT TO REPORT THAT KISS. SOMEONE
WITH THAT KIND OF JUDGMENT CANNOT BE WORKING IN A FACILITY. IT NOT ONLY UNDERMINES ALL
OF THE IMPORTANT WORK THAT IS HAPPENING. IT ACTUALLY CREATES A DANGEROUS ENVIRONMENT.
AND SO, YOU KNOW, WE'RE NOT ASKING THE COURT TO ALWAYS HAVE TO INDEPENDENTLY
INVESTIGATE WHAT IS GOING ON WHEN TAKING INTO ACCOUNT DISCIPLINARY MATTERS AND DISCIPLIN
ARY CASES BUT WE ARE ASKING THE COURT TO NOT PUT ON BLINDERS WHEN IT COMES TO WHAT WE KNOW
IS HAPPENING IN THE FACILITIES, WHAT IS WELL DOCUMENTED, WHAT IS IN THE MEDIA, WHAT WE
KNOW IS HAPPENING THERE. WE HAVE TO TAKE INTO ACCOUNT WHAT THE ACTUAL IMPACT IS.
AND SO, IF THERE ARE NO QUESTIONS, FROM THE QUESTION, I WILL LEAVE IT THERE. I JUST WANT
TO SAY THAT WE APPRECIATE THE OPPORTUNITY TO BRING OUR CLIENTS VIEW BEFORE CASE.
CHIEF JUSTICE RABNER: MR. MR. MC CANN. JAY W. MC CANN: GOOD AFTERNOON.
THE SYSTEM THAT MR. AMBROISE HAS GONE THROUGH IN TERMS OF THE ADMINISTRATIVE
PROCEDURES IS REALLY, WHEN YOU CONSIDER IT, IT'S REMARKABLE AND IT'S WONDZFUL. IT IS
MANY LAYERS OF DEFERENTIAL REVIEW. IN THIS PARTICULAR CASE, HOWEVER, IT SEEMS
LIKE THE DEPARTMENT OF CORRECTIONS, TO USE AN ANALOGY, WANTS TO PLAY THE FOURTH QUART
ER OF THIS CAME OVER AND OVER AGAIN UNTIL THEY GET THE SCORE THAT THEY WANT. MANY
PEOPLE HAVE REVIEWED THIS AND UNLESS THIS COURT CAN CONCLUDE THAT SOMEBODY WAS ARBITRARY,
CAPRICIOUS, UNREASONABLE. SOME DEFERENCE IS DUE TO THE COMMISSION. DEFERENCE IS DUE
TO THE ALJ. THERE IS NO OUT LIAR HERE. THERE IS NO DECISION THAT IS MADE.
THERE IS NO MISTAKE THAT IS FOUND, THERE IS NO MISTAKE OF LAW THAT OCCURS THAT WOULD
SUSTAIN DEPRIVING MR. AMBROISE OF HIS CAREER AS A CORRECTIONS OFFICER, CLOP OUTLOOIR CLOP.
THE DEPARTMENT OF CORRECTIONS TALKS ABOUT DISCUSSING THE SAFETY, THE SECURITY
OF THE FACILITY, THE SAFETY OF THE INMATES AND OF COURSE THIS IS OF PARAMOUNT IMPORTANCE,
BUT IN ITS BRIEF AND TODAY IN THE PRESENTATION, WITH ALL DUE RESPECT, THE DOC WAVES THIS
FORMULA AROUND AS IF IT'S TAL LIS MANT PARTICULAR. AS IF IT SOLVES ALL THE ANALYSIS
OF THIS PARTICULAR CASE. IN THEIR BRIEF AND HERE TODAY, THEY DON'T PAINT TO
ANY SPECIFIC BLANK, ANY SPECIFIC DANGER THAT RESULTED FROM THIS PARTICULAR CASE, THE BE
HAF HAIF I DON'T REMEMBER OF MR. BEHAVIOR OF MR. AMBROISE IN THIS CASE NOT A HYPOTHETICAL.
IN THE BRIEF IT SAYS, NOW THESE TWO INMATES KNOW THAT MR. AMBROISE IS THE
TYPE OF CORRECTIONS OFFICER WHO WOULD VIOLATE THE PROCEDURE ON UNDUE FAMILIARITY.
WELL, AS THE TRANSCRIPT OF THE ALJ HEARING SETS FORTH, THERE IS A LOT OF AMBIGUITY IN THAT
UNDUE FAMILIARITY REQUIREMENT. FOR EXAMPLE, MY COLLEAGUE, MR. RON COMPANY
ASKED ONE OF THE DOC OFFICERS WHO TESTIFIED IN FRONT OF THE ALJ, WELL, IS THIS INTERPRETED,
THE UNDUE FAMILIARITY DOCTRINE, IS THIS -- IS THIS INTERPRETED WITH COMMON SENSE?
IS COMMON SENSE REALLY THE RULE HERE? AND THE DOC OFFICER SAYS, NO.
IT'S NOT COMMON SENSE. IT'S FOLLOWING THE RULE. BUT YOU HAVE TO HAVE -- WE'RE NOT TALKING
ABOUT ROBOTS WE'RE NOT TALKING ABOUT AUTO MANS. THE CORRECTIONS OFFICER HAS TO USE COMMON
SENSE WITH THIS UNDUE FAMILIARITY. FOR EXAMPLE, THE DOC REPRESENTATIVE SAYS
IT'S OKAY TO TALK ABOUT THE WEATHER. JUSTICE WAINER APTER: YOU. JAY
W. MC CANN: I AM SAYING, YOUR HONOR, WITH ALL DUE RESPECT, I THINK YOU HAVE TO GO FURTHER
IN CONSIDERING WHAT HAPPENED IN THIS PARTICULAR CASE. JUSTICE PIERRE-LOUIS:
DIDN'T YOUR CLIENT ADMIT TO ENGAGING IN THE CONDUCT THAT WAS A VIOLATION OF UNDUE
FAMILIARITY. THERE IS NO ARGUMENT THAT IT WAS UNCLEAR THAT HE WAS SUPPOSED
TO REPORT THIS KISS AND THAT IT WAS UNCLEAR THAT HE WASN'T SUPPOSED TO PASS NOTES.
JAY W. MC CANN: WE HAVE NO ARGUMENT WITH THAT. CLEARLY A KISS IS REPORTABLE.
THE COURT: PUT ASIDE WHETHER IT IS REPORTABLE. IS KISSING AN INMATE OR BEING
KISSED BY AN INMATE A SERIOUS OFFENSE. JAY W. MC CANN: IT IS SERIOUS YOUR HONOR.
CHIEF JUSTICE RABNER: IS IT A VERY SERIOUS OFFENSE. JAY W. MC CANN:
I WOULD SAY YOU HAVE TO LOOK AT THE CIRCUMSTANCES. THE ALJ FINDS THAT THIS IS A
FLEETING KISS THAT IS UNEXPECTED. THERE ARE KISSES AN THEN THERE ARE KISSES.
THE COURT: IS THIS KINDS OF CONTACT GENERALLY BETWEEN A CORRECTIONS OFFICER AND AN INMATE
SOMETHING THAT CAN JEOPARDIZE SAFETY OF THE INMATE, JEOPARDIZE SAFETY OF THE INSTITUTION.
JAY W. MC CANN: UNDER CERTAIN CIRCUMSTANCES BUT THAT'S NOT WHAT OCCURRED
HERE WITH ALL DUE RESPECT. CHIEF JUSTICE RABNER: SO WHAT HAPPENED HERE
IN YOUR VIEW WAS NOT A SERIOUS OFFENSE. JAY W. MC CANN: THE FACT THAT IT
WAS UNREPORTED IS SERIOUS. IT'S NOT AN OFFENSE THAT REQUIRES A TERMINATION OF HIS CAREER.
THE COURT: WAS THIS OFFENSE, THE FACTS IN THIS CASE A SERIOUS OFFENSE IN
YOUR JUDGMENT? JAY W. MC CANN: I WOULD SAY CERTAINLY THE KISS IS A SERIOUS
OFFENSE. PASSING THE COMMUNICATION, I DON'T BELIEVE WAS A SERIOUS OFFENSE.
JUSTICE MICHAEL NORIEGA: DO WE HAVE ANY KNOWLEDGE OF WHAT THE MESSAGE WAS? JAY W.
MC CANN: THE MESSAGE IS I LOVE YOU, I LOVE YOU AND I'M MAD AT YOU. THE MESSAGE IS NOT
PICK UP THE HEROIN AT THE DOCK. IT IS NOT WE'RE GOING TO JUMP THE GUARDS. IT IS NOT
A MESSAGE THAT GOES TO THE SAFETY AN SECURITY OF THE INSTITUTION. JUSTICE
MICHAEL NORIEGA: DO WE KNOW THAT THAT'S PRECISELY WHAT THAT MOENT. JAY W. MC CANN:
THAT'S NOT WHAT THE DEPARTMENT OF CORRECTIONS ARGUED. THEY DON'T ARGUE THAT THERE IS
ANY -- ANYTHING NEFARIOUS BEHIND THIS INNOCUOUS COMMUNICATION. JUSTICE MICHAEL
NORIEGA: BUT THEY WENT TOE FAR AS TO TRY TO SUSTAIN THIS CHARGE BECAUSE THE VERY IMPACT
OF PASSING A MESSAGE FROM ONE INMATE TO ANOTHER IS A BREACH OF THE PROTOCOL.
JAY W. MC CANN: THERE IS NO DOUBT THAT IT IS A BREACH BUT I DON'T THINK -- MY POINT IS
I DON'T THINK THE NAMS STOPS THERE. YOU HAVE TO SAY WHAT IS IT BECAUSE YOU HAVE TO JUDGE
THE MAN. YOU HAVE TO JUDGE THE FACTS AND CIRCUMSTANCES. YOU KNOW, THERE IS
A SAYING AS COLD AS A STEP MOTHER'S KISS. KISSES ARE SOMETHING THAT YOU OFTEN HAVE TO
KNOW THE CONTEXT IN ORDER TO ASSESS WHAT IT MEANS, THE SERIOUSNESS OF IT.
JUSTICE MICHAEL NORIEGA: BUT THEN THE FAILURE TO REPORT TACKS ON A WHOLE OTHER COMPONENT
TO IT WHERE WE'RE TALKING ABOUT TWO ZERO TOLERANCE POLICIES, TWO SEPARATE ZERO
TOLERANCE IN FRAKSZ WHERE THE INSTITUTION SAYS IF THIS HAPPENS, WE WILL NOT ACCEPT IT.
IT IS UNACCEPTABLE FOR ONE OF OUR EMPLOYEES TO DO THIS, WHAT DOES THE CSC DO WITH THAT
INFORMATION. JAY W. MC CANN: IT HAS TO BE EVALUATED -- YOU CAN'T -- YOU KNOW,
WE'RE NOT PUTTING FACTS INTO A MACHINE, INTO A COMPUTER AND THEN GETTING THE RIGHT FEEDBACK
AT THE END. LIKE I SAID, A CORRECTIONS OFFICER -- YOU KNOW, CORRECTIONS
OFFICERS ARE INCARCERATED BASICALLY. I MEAN, THEY RETURN TO A PLACE WHERE THEY ARE IN
JAIL EVERYDAY. JUSTICE WAINER APTER: I AM SORRY, THEY ARE CHOOSING TO WORK
THERE CORRECTLY. JAY W. MC CANN: YES. JUSTICE WAINER APTER:
SO IS IT FAIR TO SAY THAT THEY ARE INCARCERATED? JAY W. MC CANN: WELL,
THEY ARE IN JAIL EVERYDAY. MY POINT IS SIMPLY THAT IT IS A VERY JOB. MAINTAINING ORDER
IN A FACILITY IS A VERY DIFFICULT JOB. THIS IS NOT HENRY WHERE THERE IS AN
AFFIRMATIVE LINE OF DECEPTION ON BEHALF OF THE OFFICER. JUSTICE MICHAEL
NORIEGA: THERE IS AN OMISSION. JAY W. MC CANN: THERE IS AN OMISSION, CORRECT.
IF WE WANT TO PUT IT WITHIN THE CONTEXT OF, YOU KNOW, IS IT A MISCONDUCT, A MAL CONDUCT,
NEGLIGENCE. WHAT IT IS IS THAT IT IS AN OFFENSE. WE DON'T DOUBT THAT. WHAT
WE ARE SAYING IS THAT THE ALJ, THE CIVIL SERVICE COMMISSION, THE APPELLATE DIVISION HAVE
ALL COME TO AN UNDERSTANDING THAT THIS IS THE APPROPRIATE PENALTY. WE'RE NOT SAYING HE
SHOULDN'T BE PUNISHED. WE'RE SAYING THAT THIS IS APPROPRIATE. IT'S REASONABLE. IT'S
BASED UPON THE FACTS AN CIRCUMSTANCES OF THIS PARTICULAR CASE. LET'S NOT -- I SUBMIT,
THAT WE SHOULDN'T BLOW IT UP. WE SHOULDN'T SAY IT IS SOMETHING WORSE THAN IT IS. IT IS
A MISTAKE. JUSTICE MICHAEL NORIEGA: HOW DO YOU RESPONDS TO YOUR ADVERSARIES
POSITION CONCERNING THEIR EXPERTISE AND THE FACT THAT THIS INDIVIDUAL WOULD HAVE TO GO
BACK TO THEIR EMPLOY AND THEIR RANGSS AN THEY ARE MAKING A DETERMINATION THAT THAT WOULD
DISRUPT THE WORKPLACE AN THE ENVIRONMENT? JAY W. MC CANN: THEY HAVEN'T
SAID HOW IT WOULD DISRUPT THE WORKPLACE. HOW IT WOULD DISRUPT THE ENVIRONMENT. THEY
HAVEN'T SAID IT. THEY HAVEN'T EVALUATED A MESSAGE I LOVE YOU, HOW THAT DISTURBS THE
INSTITUTION. IT IS JUST THE SAME LANGUAGE OVER AND OVER AGAIN. IT IS A THREAT. IT'S
A THREAT. IT IMPACTS THE SAFETY AND SECURITY, BUT NOT HOW. IN THIS PARTICULAR
CASE. IT IS LIKE THAT OLD SAYING -- THE FEELING IS IT IS BETTER FOR ONE
MAN TO SUFFER THAN THE NATION PERISH WHICH WE DON'T CONSIDER TO BE FAIR OR JUST. IT
IS MR. AMBROISE'S CAREER. IT IS MR. AMBROISE'S LIFE AND IT HAS TO BE BALANCED AND THAT'S
WHY WE HAVE THIS MULTI FACETTED SYSTEM WHICH IS AT THE VERY HEART OF DEFERENTIAL REVIEW.
JUSTICE WAINER APTER: HAS THERE EVER BEEN A CASE IN WHICH AN OFFICER RETAINED
HIS POSITION AFTER UNDUE FAMILIARITY OR FAILURE TO REPORT INTIMATE PHYSICAL CONDUCT WITH
AN INMATE WHERE IT WAS SUBSTANTS YATD BY THE CSC. JAY W. MC CANN: I AM NOT
AWARE OF MA'AM. JUSTICE WAINER APTER: I AM ASKING EITHER OR SO UNDUE
FAMILIARITY CHARGE SUSTAINED PERSON KEEPS THEIR JOB OR FAILURE TO REPORT INTIMATE PHYSICAL
CONTACT WITH INMATE PERSON KEEPS THEIR JOB. JAY W. MC CANN: FRANKLY, I DON'T
KNOW, BUT WE HAVE VERY, VERY CAREFUL REVIEW. THE ALJ WAS VERY THOROUGH. THE CIVIL SERVICE
COMMISSION WAS CERTAINLY AWARE OF THE MANDATE. AND HENRY, ALSO, INDICATES, THERE IS LANGUAGE
IN HENRY THAT INDICATES THAT THE DEPARTMENT OF CORRECTIONS IS NOT AN EXCEPTION HERE.
THEY DON'T -- THE LEGISLATURE DOES NOT GIVE THEM ANY SPECIAL PRIVILEGES IN ASSESSING WHAT
THE PENALTY IS ANY DIFFERENT FROM ANY OTHER AGENCY. JUSTICE FASCIALE:
THERE IS A STATUTE THAT GIVES THE DOC BROAD DISCRETIONARY POWER TO FASHION DISCIPLINARY
POLICIES FOR MAINTAINING SAFETY AN SECURITY. JAY W. MC CANN: YES, BUT THE
HENRY COURT DOES MENTION THAT THE LEGISLATURE HAS NOT EXEMPTED THEM FROM THE REVIEW OF
ANY OTHER -- AS IF IT WERE ANY OTHER AGENCY; THAT'S THE POINT. JUSTICE
WAINER APTER: THE COURT THEN ALSO DID REVERSE THE CSC FINDING THAT THE OFFICER'S CONDUCT
IN THAT CASE SUBVERTD THE DISCIPLINE OF THE PRISON AND DISRUPTED AND DESTROYED ORDER AN
DISCIPLINE AND THAT THE CSC DID NOT ADD QUALITILY CONSIDER THAT, CORRECT? JAY W.
MC CANN: THAT'S LIKE I SAID AND WITH THE OTHER MATTER WHERE THE PRISON GUARD IS GAMBLING
AND THERE IS A QUESTION OF GAMBLING DEBTS, I MEAN THAT IS EXPLOSIVE. WE CAN TELL THAT.
JUSTICE WAINER APTER: WHY IS A PRISON GUARD FAILING TO REPORT INTIMATE
PHYSICAL CONTACT WITH A FEMALE INMATE IN A WOMEN'S PRISON NOT EXTRAORDINARILY CONCERNING?
JAY W. MC CANN: IT IS. AND I THINK THAT THE COMMISSION DOES SAY IT'S
EXTRAORDINARILY -- YOU HAVE TO TO WHAT THE ALJ FINDS ABOUT THIS. JUSTICE
WAINER APTER: BUT THE CSC DISAGREED WITH THE ALJ. I HEAR YOU TRYING TO GO BACK TO THE
ALJ A LOT BUT IT SEEMS LIKE THE CSC DISAGREES AND IT SPECIFICLY SAYS IT CANNOT FATHOM
HOW ANY CORRECTIONAL STAFF IN A FACILITY FOR WOMEN COULD INTERPRET A KISS AS ANYTHING
BUT AN UNUSUAL INCIDENT THAT NEEDED TO BE REPORTED. AND ON THE OTHER ONE IT CANNOT
IMAGINE ANY CIRCUMSTANCES WHERE THE RELAYING OF A PERSONAL MESSAGE BETWEEN INMATES BY A
SENIOR CORRECTIONAL POLICE OFFICER WOULD BE APPROPRIATE TO SO THE CSC DOES T.
JAY W. MC CANN: EXACTLY AND THAT'S CORRECT, BUT I KEEP REFERRING TO THE ALJ BECAUSE THE
ALJ WAS THE FINDER OF FACT THAT HEARD MR. AMBROISE TESTIFY IN PERSON THAT DID NOT HEAR
THE DEPARTMENT OF CORRECTION'S J.O. THEIR CONFIDENTIAL INFORMANT, SHE WAS NOT BROUGHT
IN. THEY PLAYED A VIDEOTAPE FOR THE ALJ. THE ALJ HAD WHAT THE DOC PRESENTED BEFORE HER
AND FOUND THAT MR. AMBROISE WAS THE CREDIBLE WITNESS IN THAT PARTICULAR CASE.
AND HER FINDING IS THAT IT IS AN UNEXPECTED SITUATION IN THAT CLOSET. IT WAS AN UNEX
SPEBTD KISS. SHE DESCRIBES IT AS A PECK. SO I'M JUST SAYING THAT IN CONSIDERATION OF THE
PUNISHMENT FOR FAILING TO REPORT SOMETHING LIKE THAT, THERE IS AN ISSUE AND AN ASPECT
OF THIS THAT WAS DISMISSED AND THAT'S THE MUS SIN NEXT, YOU KNOW, J.O. SAYS HE BROUGHT
MUS SIN NEXT INTO THE FACILITY AND HE EXPLAINED IT. HE SAID THESE PRISONERS ARE ASKING
FOR THINGS ALL THE TIME AND THAT'S TO BE EXPECTED WITHIN THE CONFINES AND THESE PEOPLE
THAT YOU SEE EVERYDAY. THEY ASK ALL THE TIME. IT'S NOT AN EXTRAORDINARY SITUATION.
CHIEF JUSTICE RABNER: MIGHT OR COULD THE ALJ'S CREDIBILITY DETERMINATION
HAVE BEEN DIFFERENT HAD THE ALJ KNOWN ABOUT THE STIPULATION? JAY W. MC CANN:
WITH ALL DUE RESPECT, YOUR HONOR, I THINK THE STIPULATION ARGUMENT IS OF
NO MOMENT; THAT'S THE BEST WAY I CAN PUT IT. IT IS A TACTICAL DECISION THAT MR. RONG
COMPANY MADE IN THE COURSE OF LITIGATING THE CRIMINAL CASE. IT GOES SPECIFICALLY BY ITS
FACE TO THE MIRANDA ISSUE AND AS THE COURT IS WELL AWARE, THE FINDER OF FACT IS THE PERSON
THAT DETERMINES THE CREDIBILITY OF THE PERSONS MAKING THE TASH DASH THE JURY, 12 PEOPLE
ON THAT JURY MADE A DETERMINATION AS TO MR. AMBROISE'S VOLUNTARINESS. THE
COURT: AND WE HAVE NO -- JAY W. MC CANN: NO WE JUST HAVE A VERDICT.
THE COURT: WAS YOUR CLIENT'S STATEMENT VOLUNTARY OR INVOLUNTARY. JAY W. MC CANN:
THE ORDER I DO NOT BELIEVE GIVES US ANY INSIGHT. THE COURT: I AM ASKING
YOU NOW. JAY W. MC CANN: I HAVEN'T HEARD IT. I DID NOT HEAR MR. AMBROISE.
THE COURT: MR. AMBROISE TESTIFIED. YOU'RE HERE DEFENDING HIS TESTIMONY AT THE
HEARING. JAY W. MC CANN: YES. THE COURT: BY WHAT HE SAID,
WAS MR. AMBROISE CONTEST BEING THE VOLUNTARINESS OF THE STATEMENT DURING HIS APPEARANCE
ON THIS MATTER, THE DISCIPLINARY MATTER? JAY W. MC CANN: I THINK THAT WITH
ALL DUE RESPECT I THINK THAT THE STATEMENT WAS A PRODUCT AS THE ALJ FOUND, THAT THE STATEMENT
WAS A PRODUCT OF VERY QUESTIONABLE TACTICS ON BEHALF OF THE HUNTERDON COUNTY PROSECUTOR
'S OFFICE AN THE DOC. FOUR PEOPLE WERE IN THE ROOM. IT WAS AN AMBUSH INTERROGATION.
ALL THE FACTORS THAT THIS COURT HAS REVIEWED ON ITS MIRANDA DECISIONS, IT WAS -- HE WAS
GIVEN MIRANDA. HE ACKNOWLEDGED HE UNDERSTOOD MIRANDA. HE WAIVED MIRANDA THAT'S WHAT
THAT ORDER IS ABOUT. THE COURT: RESPECTFULLY IF A STATEMENT IS COERCED,
DOES IT GET TO GO BEFORE THE JURY. ISN'T THAT PART OF THE PRETRIAL CHALLENGE
THAT TAKES PLACE, BASIC CRIMINAL LAW, COERCED STATEMENTS CANNOT BE ADMITTED?
JAY W. MC CANN: I DON'T KNOW WHETHER THAT WOULD BE SOMETHING THAT WOULD BE HANDLED PRETRIAL.
JUSTICE WAINER APTER: YOUR CLIENT, MR. AMBROISE HAD FILED A MOTION TO SUPPRESS
ON THE GROUNDS THAT HIS STATEMENT WAS COERCED. THEN HE WITHDRAWS THAT MOTION TO SUPPRESS
AN HE SPECIFICALLY STATES ON THE RECORD THAT HIS STATEMENT WAS GIVEN KNOWINGLY AND VOLUNTARILY
AND HE DID NOT OBJECT TO ITS ADD ADMISSION AT TRIAL. JAY W. MC CANN: CORRECT.
JUSTICE WAINER APTER: ISN'T HE BOUNDS BY THAT IN HAD SOME WAY.
JAY W. MC CANN: ON THE SECOND PAGE OF THAT ODDITY SPECIFICALLY REFERENCES THE FACT THAT
THIS IS WITHIN THE CONTEXT OF DETERMINING BEYOND A REASONABLE DOUBT WHETHER HE WAS GIVEN
MIRANDA, WHETHER HE UNDERSTOOD MIRANDA AND WHETHER HE WAIVED MIRANDA. THE
COURT: DOESN'T THE ORDER SAY AND THE DEFENDANT HAVING WAIVED A MIRANDA HEARING.
JAY W. MC CANN: YES. JUSTICE WAINER APTER: HE FILES A MOTION TO SUPPRESS
AN THEN HE SAYS I ACTUALLY WANT TO WITHDRAW MY MOTION TO SUPPRESS AND THIS CAN BE ADMITTED
AT TRIAL. JAY W. MC CANN: THAT'S RIGHT. BUT THAT DOESN'T END WHAT HAPPENS
IN A TRIAL BECAUSE THE FINDER OF FACT IS INSTRUCTED. THE JURY IS INSTRUCTED THAT THEY
HAVE TO MAKE A DETERMINATION AS TO THE CREDIBILITY. THE COURT: IF
YOU'RE CORRECT AS TO THAT, HOWEVER, ASSUME IN A DIFFERENT CASE A DEFENDANT RECEIVED MIRANDA
WARNINGS AND THEN WAS PHYSICALLY OR PSYCHOLOGICALLY COERCED IN CONFESSING
THEREAFTER, ARE YOU TELLING US THAT THAT STATEMENT COMES IN? THE MIRANDA
HEARING IS ONLY ABOUT WHETHER THE MIRANDA WARNINGS WERE PROVIDED? JAY W.
MC CANN: THAT'S WHAT THE MIRANDA HEARING IS ABOUT. CHIEF JUSTICE RABNER:
RESPECTFULLY, I DON'T BELIEVE THAT'S THE CASE AND I IMAGINE THAT IF YOU SPEAK TO THE
PROSECUTORS WHO HANDLED THIS AND INDEED BOILERPLATE FIRST YEAR LAW SCHOOL CRIMINAL
LAW CLASSES WOULD SUGGEST COERCED KFRGSZ KFGSZ DON'T GET ADMITTED EVEN IF THEY ARE PROCEEDED
BY MIRANDA WARNINGS AN EVEN IF THEY ARE ARE BEFORE A JURY. THAT WAS NOT
ARGUED HERE UNTIL YOUR CLIENT TOOK THE STAND. JAY W. MC CANN: THAT'S CORRECT,
YOUR HONOR. I WILL SAY THAT IT WOULD BE UNUSUAL IF THE DEPARTMENT OF CORRECTIONS
EITHER KNEW ABOUT THAT ORDER AN DECIDED E IT WAS IRRELEVANT OR SIMPLY OVERLOOKED IT.
IT'S ON ECOURTS. HOW COULD MR. RONG COMPANY FILE A MOTION. THE COURT: THAT'S
WHY MY ORIGINAL QUESTION TO YOU WAS MIGHT IT HAVE AFFECTED THE ALJ'S DETERMINATION ABOUT
CREDIBILITY IF THE ALJ KNEW THIS PERSON IS NOW TRYING TO PERSUADE ME THAT THEY WERE COERCED
INTO PROVIDING THE ANSWERS THEY DID WHEN THEY HAD ALREADY TAKEN THE OPPOSITE POSITION.
JAY W. MC CANN: COULD IT HAVE AFFECTED THE ALJ? MAYBE.
BUT THE ALJ SPECIFICALLY INDICATES THAT SHE IS BASING THIS UPON HER IN-PERSON EVALUATION
OF THE LIVE TESTIMONY OF MR. AMBROISE. JUSTICE WAINER APTER: SHE ALSO WATCHED
THE VIDEO, RIGHT AND THAT'S WHY SHE CAME TO ALL THESE CONCLUSIONS THAT IT WAS INVOLUNTARY
BECAUSE SHE SAID THEY DID THIS WRONG AND DID THAT WRONG. JAY W. MC CANN:
EVERYBODY WHO HAS WATCHED THAT VEHICLE, EVERY FINDER OF FACT HAS L WHO HAS WATCHED THAT
VIDEO HAS BEEN TRUNLED BY IT. I MEAN THERE ARE FOUR DETECTIVES IN THIS ROOM. THERE IS
THE REFUSAL TO PROVIDE HIS LABOR REP.. EVERY -- YOU KNOW, WE TALK ABOUT THE TECHNIQUES,
THE PALM MER TECHNIQUES. JUSTICE WAINER APTER: I'M SORRY THE APPELLATE
DIVISION DISAGREED. DIDN'T THE APPELLATE DIVISION SPECIFICALLY HOLD THAT THE INVESTIGATE
GORS DID NOT APPROPRIATE PAG GAT EVIDENCE AND DID NOT PROMISE A LESSER SENTENCE.
JAY W. MC CANN: YES, BUT IF HE DIDN'T FABRICATE THE EVIDENCE, HE CAME MIGHTY CLOSE TO
IT. JUSTICE PIERRE-LOUIS: BUT AGAIN YOUR CLIENT WHO WAS REPRESENTED BY
COUNSEL, BY YOUR FIRM AT THE TIME WITHDREW HIS MIRANDA -- HIS SUPPRESSION MOTION AND
ADMITTED THAT THIS WAS VOLUNTARY. JAY W. MC CANN: YES. JUSTICE
PIERRE-LOUIS: I MEAN THAT'S THE QUESTION THAT WE'RE ASKING WITH REGARD TO THAT STIPULATION
AN THE IMPACT THAT COULD HAVE HAD. JAY W. MC CANN: THE ONLY THING I CAN
SAY IS WHEN YOU'RE TRYING A CRIMINAL CASE, THERE MIGHT BE MANY REASONS WHY YOU DON'T WANT
TO HAVE A MIRANDA AFTER INITIALLING FILING FOR IT. IT'S NOT -- I REST MY POSITION ON
THE FACT THAT THE FINE DER OF THE FACT THE JURY CAME TO CONCLUSIONS IN THIS PARTICULAR
CASE AND WITH THAT VERDICT, THEY HAD TO HAVE BELIEVED THAT HE WAS -- HIS WILL TO A CERTAIN
EXTENT WAS OVER BORNE BY THOSE CIRCUMSTANCES. JUSTICE PIERRE-LOUIS: WE
CAN'T SAY THAT WAS IN THE JURY'S MIND. JAY W. MC CANN: I UNDERSTAND THE
BURDEN IS DIFFERENT. I UNDERSTAND THAT THIS IS NO, SIR NOT A JUDGMENT OF THE VOLUNTARINESS
OF THE STATEMENT IN AN OF ITSELF BUT NEVERTHELESS THE VERDICT IS THERE. IT MEANS SOMETHING.
AND, YOU KNOW, THAT VERDICT IS CONSISTENT WITH THE FINDINGS ALONE. IT'S NOT LIKE THE
ALJ FOUND SOMETHING AT VARIANCE OR THE CIVIL SERVICE COMMISSION FOUND SOMETHING AT
VARIANCE. AT ANY RATE, YOUR HONOR -- CHIEF JUSTICE RABNER: LET'S
COME BACK TO THE ATTORNEY GENERAL'S PRINCIPAL ARGUMENT AND YOU HAVE ALREADY ACKNOWLEDGED
THAT THIS WAS A SERIOUS INCIDENT AND A HIGHLY CONCERNING AND AN EXTRAORDINARILY CONCERNING
ONE AT THAT. CAN YOU RESPOND TO THE ARGUMENT THAT THE CSC DIDN'T SUFFICIENTLY
CREDIT THOSE CONSIDERATIONS? JAY W. MC CANN: I DON'T THINK IN ITS PRESENTATION
TO THE CIVIL SERVICE COMMISSION, I DON'T THINK THAT THE DEPARTMENT OF CORRECTIONS PROFFERED
ANY WAY THAT THESE ACTS THREATENED THE SECURITY OF THE PRISON. THEY USED THE WORDS, BUT
THEY DIDN'T DEFINE. JUSTICE WAINER APTER: THE CSC SPECIFICALLY SAID THAT
THIS TOUCHED AT THE HEART OF THE SAFETY AN SECURITY OF CORRECTION THAT FACILITIES.
JAY W. MC CANN: UH-HUH. YES, YOUR HONOR, BUT THEY -- THE DEPARTMENT OF CORRECTIONS
DIDN'T INDICATE HOW. THAT'S THE POINT. THEY DIDN'T CONSIDER -- JUSTICE
WAINER APTER: YOU DIDN'T CHALLENGE THE CSC'S CONCLUSION THAT IT DID, CORRECT?
JAY W. MC CANN: NO, I DON'T. THEY ARE BOUND TO CONSIDER THAT. THERE IS NO INDICATION
THAT THEY MADE A MISTAKE, THAT THEIR FINDING WAS UNREASONABLE. AND IN LIGHT OF THAT,
THERE IS NO INDICATION THAT THEIR DETERMINATION OF THE PENALTY IS UNREASONABLE OR ARBITRARY
AND CAPRICIOUS. THEY DID THEIR JOB AND I THINK THAT THEY ARE ENTITLED TO THAT
DEFERENCE. JUST ONE OTHER FACTOR. WITH REGARD TO THE CIVIL LIBERTIES
UNION, I WILL MAKE THIS BRIEF. CLEARLY THERE IS A NEED FOR REFORM AT EDNA MAHAN AND THE
STATE OF NEW JERSEY REALIZES THAT THAT'S WHY THESE PRISONERS WERE APPOINTED TO THIS BOARD
THAT THE ACLU IS REPRESENTING. THEIR BRIEF CONSISTS MAINLY OF THEIR OPINION OF THE THIS
PARTICULAR CASE AND IT'S IMPORTANT, IT'S AN IMPORTANT IMPACT BUT I'M NOT SO SURE HOW
INFORMED THESE PRISONERS WERE ABOUT THE STATUS OF THIS INVESTIGATION, THE STATUS OF THE
DUE PROCESS THAT MR. AMBROISE RECEIVED, THE SAME DUE PROCESS THAT THOSE PRISONERS ARE
ENTITLED TO, THAT ANY EMPLOYEE IS ENTITLED TO SO I AM NOT SO SURE THAT THEIR REACTIONS
JUST AREN'T HEARTFELT STATEMENTS WITH REGARD TO WELL, HOW CAN HE GET AWAY THIS AND WE
ARE HELD ACCOUNTABLE. HE HAS GOT A BADGE. THIS MUST BE ACCOUNTED FOR. IT IS NOT AN
INFORMED DECISIONS. THE COURT: SO TAKE ONE OF THE PRINCIPLES THAT THEY ARE
ADVANCING IN THE CONTEXT OF THE FACTS HERE. THE EXTRAORDINARY POWER IMBALANCE BETWEEN
THE CORRECTIONS OFFICER AND THE INMATE. WHAT IMPACT DOES THAT HAVE ON THE
SERIOUSNESS OF THIS PARTICULAR OFFENSE. JAY W. MC CANN: I THINK IT HAS A
TREMENDOUS IMPACT. CORRECTIONS REALLY EXISTS BASED UPON THAT PRINCIPLE AND THE PROBLEMS
ASSOCIATED WITH IT. I UNDERSTAND WHY THESE RULES AND DIRECTIVES FROM THE DOC
HAVE TO BE ENFORCED, BUT THERE IS ALSO A RESPONSIBILITY TO MR. AMBROISE THAT HE BE
GIVEN THE BENEFIT OF BLANK. THAT HIS ACTIONS BE EVALUATED WITHIN THE CONTEXT OF WHAT ACTUALLY
HAPPENED HERE AND NOT SOME THEORETICAL THREAT. YOU KNOW, YOUR HONOR, YOU HAVE
CHILDREN WHO SAY THEY WANT TO BE POLICE OFFICERS WHEN THEY GROW UP. AS FAR AS I CAN SEE
NOBODY SAYS THEY WANTS TO BE CORRECTIONS OFFICERS WHEN THEY GROW UP. EVERYBODY NEEDS
THIS STUFF TO BE DONE BUT IT'S LIKE GOING TO ROOUT'S KRIS EVERYBODY WANTS THE STEAK ON THE
PLATTER AT ROOUT'S KRIS, NOBODY WANTS TO GO TO THE SLAUGHTERHOUSE AN SEE THE CATTLE PUT
DOWN. MR. AMBROISE WANTS TO CONTINUE IN THIS JOB WHICH IS VERY FRAUGHT AN
VERY DANGEROUS AND I AM HUH BLIENG ASKING THE COURT TO LET HIM DO THAT. CHIEF
JUSTICE RABNER: FURTHER QUESTIONS ANYONE. TIMOTHY P. MALONE: GOOD
AFTERNOON AND MAY IT PLEASE THE COURT. THE COMMISSION LARGELY VIEWED THIS APPEAL
AS A DISPUTE BETWEEN THE DEPARTMENT OF CORRECTIONS AND MR. AMBROISE AND ONLY FILED
A STATEMENT OF BRIEF IN THE APPELLATE DIVISION BELOW BUT WE DID WANT TO
PARTICIPATE BEFORE THIS COURT BECAUSE OF THE POTENTIAL FOR BROADER IMPACT OF THE
DECISION, AND I THANK YOU FOR ALLOWING US TO DO SO. THE LENS THROUGH WHICH
THIS SHOULD BE VIEWED IS NOT WHETHER THIS COURT WERE TO REACH A DIFFERENT DECISION
IN THE FIRST INSTANCE BUT WHETHER THE COMMISSION'S PENALTY ASSESSMENT IS SO
SHOCKING TO THIS COURT'S SENSE OF FAIRNESS THAT IT MUST BE REVERSED. WE SUBMIT
THAT ON A CAREFUL REVIEW OF THE RECORD THAT WAS ESTABLISHED BEFORE THE COMMISSION
BELOW BY THE DEPARTMENT OF CORRECTIONS AND THE FACTS AND THE CHARGES THAT WERE
PROVEN IN THIS CASE, THE COURT SHOULD FIND THAT THE COMMISSION'S ISSUANCE OF A
SIX-MONTH SUSPENSION WITHOUT PAY IN LIEU OF REMOVAL OF MR. AMBROISE DID
NOT RISE TO THAT STANDARD OF SHOCKING THE COURT'S SENSE OF FAIRNESS AND IS ENTITLED
TO AFFIRMANCE. THE THRUST OF THE DEPARTMENT'S ARGUMENT AS I UNDERSTAND
IT IS THAT THE COMMISSION DID NOT ADEQUATELY DEFER TO ITS DETERMINATION THAT MR.
AMBROISE SHOULD BE REMOVED. THE STANDARD SET BY THIS COURT OVER 40 YEARS AGO IN
HENRY WAS THAT THE COMMISSION REVIEWS THE DECISION DE NOVO GIVING WAIT TO
THE APPRAISAL OF THE CONDUCT BUT AS A DE NOVO REVIEW. I'VE CONSIDERED SIMILAR
ARGUMENTS TO HENRY AS WERE RAISED HERE, THE NEED FOR DISCIPLINE IN A
CORRECTIONAL FACILITY AND THE NEED TO GIVE WEIGHT TO THOSE CONSIDERATIONS IN THE
COMMISSION'S PENALTY ASSESSMENTS, AND TO BE CLEAR THE D.O.C. DOES GIVE THE
APPRAISAL SIGNIFICANT WEIGHT AND REQUIRED BY HENRY AND BOW DENY, BUT AS RECOGNIZED
BY THIS COURT IN HENRY THERE SHOULD BE EVIDENCE PUT BEFORE THE COMMISSION AS FOR THE
NEED OF SOMETHING SOUGHT BY THE DEPARTMENT, THE MERE FACT THAT IT WAS
CHOSEN TO REMOVE THE EMPLOYEE DOES NOT HAVE TO BE RUBBER STAMPED, HENRY RECOGNIZED
THAT THERE IS OTHER EVIDENCE PERTAINING TO SAFETY AND SECURITY AND DISCIPLINE
IN PRISONS AND CONSIDERING THAT EVIDENCE IN DECIDING WHAT SANCTION IS WAFRNTED.
IF YOU LOOK AT THE RECORD HERE, THE DEPARTMENT PUT ON LIMITED
EVIDENCE AS TO THE SAFETY AND SECURITY RISKS CAUSED BY A.M. BOWS'S CONDUCT. THERE
WAS TESTIMONY THAT IT DID GO TO THE SAFETY AND SECURITY OF THE PRISON, BUT
NO REAL SPECIFIC TESTIMONY BEYOND THAT AS TO WHAT WOULD HAPPEN IF HE WAS REINSTATED.
THERE WAS TESTIMONY THAT IT COULD BE A REMOVABLE OFFENSE BUT I DO NOT BELIEVE
THAT THE RECORD RE FLEKTSDZ THAT IT MUST BE A REMOVABLE OFFENSE AND WHY THAT IS
THE CASE. AND THE COMMISSION RECOGNIZED THAT TESTIMONY, RECOGNIZING THAT THE
CHARGES THAT WERE PROVEN DO GO TO SAFETY AND SECURITY AT THE PRISON AND IN FACT
TOUCHES AT THE HEART OF IT, BUT TAKING INTO ACCOUNT THE PRINCIPLES OF
PROGRESSIVE DISCIPLINE ESTABLISHED BY THIS COURT THE COMMISSION REASONABLY DECIDED
THAT A.M. BOWS SHOULD BE GIVEN A SECOND CHANCE AND THAT A SIX-MONTH SUSPENSION
WHICH IS A VERY SERIOUS SANCTION IN ITSELF WAS SUFFICIENT FOR THE CONDUCT
THAT WAS PROVEN HERE. AND THE COMMISSION TOOK INTO ACCOUNT THAT
THE MORE SERIOUS CHARGE OF SEXUAL ASSAULT WAS NOT PROVEN, IT DID RECOGNIZE
THAT PASSING A MESSAGE COULD BE A SERIOUS OFFENSE AND INDEED WAS, THAT ONE PASSING
OF A MESSAGE WAS VERY SERIOUS AND WARRANTING A SERIOUS SANCTION. BUT I
THINK WHEN YOU LOOK AT AS COUNSEL FOR MR. AMBROISE SAID THAT THE NATURE OF THE MESSAGE
WAS I LOVE YOU AND I'M MAD AT YOU, IT WASN'T SOMETHING THAT ITSELF JUMPED
OUT AS THIS MUST WARRANT REMOVAL FOR THIS SPECIFIC MESSAGE AND THERE WAS NO TESTIMONY
OR EVIDENCE PUT FORTH BY THE DEPARTMENT OF CORRECTIONS OTHERWISE. AND TO
TOUCH BRIEFLY ON THE CONFESSION, THE COMMISSION CONSIDERED THE ORDER AND REASONABLY
FOUND THAT IT DID NOT CHANGE THE ANALYSIS SO AS TO WARRANT A REMAND, THERE WAS
NO REAL DISPUTED FACT CHANGED BY THE ORDER. THE ALJ HAD ALREADY KNOWN AND CONSIDERED
THAT THE CONFESSION WAS PLAYED AND ADMITTED AT THE CRIMINAL TRIAL AND THAT THE
JURY WAS TOLD IT WAS UP TO THEM WHAT WEIGHT THEY COULD GIVE IT. THE ALJ
HAD HEARD MR. AMBROISE TESTIFY BEFORE HER, SHE HAD VIEWED THE ENTIRE VIDEO OF THE
CONFESSION AND SHE HAD VIEWED THE VIDEOTAPED STATEMENT BY THE INMATE
J.O. AND DETERMINED THAT THAT WAS NOT CREDIBLE AND THAT MR. AMBROISE'S LIVE TESTIMONY
WAS CREDIBLE AND THAT ORDER DID NOT CHANGE THAT ANALYSIS AND THE COMMISSION'S
DETERMINATION TO NOT REMAND IT WAS NOT ARBITRARY AND CAPRICIOUS.
AND I KNOW THERE'S BEEN QUESTIONS ON WHETHER THERE WERE OTHER DECISIONS IN WHICH
THE COMMISSION HAS FOUND A CHARGE OF UNDUE INFLUENCE TO NOT WARRANT REMOVAL,
I'M NOT -- JUSTICE WAINER APTER: UNDUE FAMILIARITY.
JAY W. MCCANN: TIMOTHY P. MALONE: YES, I APOLOGIZE. NEW SOME
INVOLVED A CASE WHERE THE CORRECTIONS OFFICER HAD ENGAGED IN UNDUE FAMILIARITY
BYPASSING MESSAGES FROM AN INMATE TO HIS GIL FRIEND AND THE COMMISSION DECIDED
NOT TO REMOVE THERE AND IT WAS ONLY AFTER THE SPECIFIC EVIDENCE PUT FORTH
OF THE SECURITY RISKS THERE, INCLUDING THAT THAT SPECIFIC INMATE WAS A FLIGHT RISK
THAT THE COMMISSION RECONSIDERED ITS DECISION AND REMOVED THAT CORRECTIONS
OFFICER. AND I THINK THAT YOU CAN DISTINGUISH THAT CASE FROM THE EVIDENCE THAT
WAS PUT BEFORE THE COMMISSION HERE, WHICH AGAIN WAS ONLY GENERALIZED TESTIMONY
OF SAFETY AND SECURITY IMPACTS WHICH THE COMMISSION DID TAKE INTO ACCOUNTS BUT
DECIDED THAT PROGRESSIVE DISCIPLINE COULD BE WARRANTED GIVEN MR. AMBROISE'S
CLEAN RECORD UP TO THAT POINT. CHIEF JUSTICE RABNER: COUNSEL, WHAT
WAS THE TERM THAT YOU USED, THAT THERE WAS NO INCONSISTENCY BETWEEN THE
ORDER AND THE PROCEEDINGS OR WAS THERE A DIFFERENT TERM YOU USED.
TIMOTHY P. MALONE: FRANKLY, YOUR HONOR, I DON'T REMEMBER THE TERM I USED, I THINK
IT WAS ALONG THOSE LINES IN THAT DURING THE OAL HEARING -- CHIEF
JUSTICE RABNER: CAN YOU EXPLAIN THEN HOW A FINDING OF KWERGS, OF INVOLUNTARY NECESSARY
BY THE O.A. J, IS NOT INCONSISTENT WITH COUNSEL'S WITHDRAWAL ON THAT VERY
GROUND. TIMOTHY P. MALONE: WHAT I MEANT, YOUR HONOR, WAS THAT
THE ALJ WAS TOLD THAT IT WAS ADMITTED AT TRIAL AND PLAYED AT TRIAL, THE ALJ ALREADY
KNEW THAT FACT IN CONSIDERING AMBROISE'S TESTIMONY AT THE OAL HEARING, AND
I THINK WHETHER OR NOT SHE FOUND IT MET THE LEGAL STANDARD OF IMPROPER GER
INTERROGATION, SHE CLEARLY WAS TROUBLED BY WHAT SHE SAW AND THAT PLAYED INTO
HER ANALYSIS OF WHAT WEIGHT TO GIVE THE CONFESSION VERSUS THE WEIGHT TO GIVE
MR. AMBROISE'S TESTIMONY. CHIEF JUSTICE RABNER: SHE THREW DOWN BASED
ON HER INTERPRETATION OF THE LAW AND APPLYING THE LAW IN THE CASE.
TIMOTHY P. MALONE: YES, SHE DID PLACE THAT IN HER DECISION BUT I THINK
IT'S A REASONABLE READING OF HER DECISION THAT SHE WAS TROUBLED BY THE INTERROGATION
TACTICS SHE FOUND AS A SMAUFTD AS A MATTER OF LAW THAT IT WAS I AM PROBLEM
TACTICS AND SHE CREDITED HIS LIVE TESTIMONY, AND BY LIVE I MEAN VIA ZOOM, SHE
HEARD HIM SEF, HEARD HIS QUESTIONING, HEARD HIM REPUDIATE THE CONFESSION
AND FOUND THAT CREDIBLE. CHIEF JUSTICE RABNER: WHETHER THE STIP
WAS FIEMLY PRESENTED OR NOT, I FIND HARD TO DETERMINE HOW IT WAS CONSISTENT
WITH WHAT WAS DONE AT THE HEARING ITSELF. BUT WE CAN MOVE BEYOND THAT.
TIMOTHY P. MALONE: I WOULD JUST COMMENT THAT THE COMMISSION ITSELF DID CONSIDER
THE ORDER, THE COMMISSION CONSIDERED THE CONFESSION VIDEO, THE TESTIMONY
THAT AMBROISE HAD GIVEN AT THE HEARING, I BELIEVE IT STATES IN ITS DECISION THAT
IT REVIEWED THAT TESTIMONY AND FOUND THAT THE ORDER WOULD NOT CHANGE THE A
LJ'S CREDIBILITY DETERMINATIONS BASED ON ITS OWN REVIEW OF THE TESTIMONY.
JUSTICE PATTERSON: OBVIOUSLY THIS CASE MAY HAVE AN IMPACT ON FUTURE CASES.
HOW DO YOU VIEW THE COMMISSION'S OBLIGATION UNDER HENRY AND BOW DENY IN A
CORRECTIONS SETTING. YOU'VE HEARD THE DISCUSSION WITH THE D.O.C.'S COUNSEL,
THE ATTORNEY GENERAL, WHAT IS IT THAT THE COMMISSION CONSIDERS ITSELF OBLIGATED
TO DO IN A DE NOVO REVIEW THAT'S IN A CORRECTIONS SETTING IN REVIEWING A
DISCIPLINARY DETERMINATION. TIMOTHY P. MALONE: THE COMMISSION VIEWS
ITS OBLIGATION CONSISTENT WITH THAT CASE LAW TO GIVE WEIGHT TO THE DEPARTMENT'S
POSITION THAT I THINK THE DEPARTMENT HAS AN OBLIGATION TO EXPLAIN WHY ITS POSITION
IS WHAT IT IS, IT'S NOT ENOUGH TO JUST SAY SAFETY AND SECURITY, THE DEPARTMENT
HAS AN OBLIGATION TO SAY WHAT THE SPECIFIC IMPACTS OF THIS CHARGE WILL BE, OF THE
SPECIFIC CONDUCT OF THE EMPLOYEE THAT IT'S BEING ASKED TO REVIEW, AND IF IT IS
FROM THE DEPARTMENT'S VIEW A SINGLE SANCTION CHARGE, AS REMOVAL ONLY, THEY NEED
TO EXPLAIN THAT ON THE RECORD AND THAT WOULD BE GIVEN SIGNIFICANT WEIGHT BY
THE COMMISSION BUT I THINK HENRY DID REQUIRE THAT THERE BE EVIDENCE AND TESTIMONY
AS TO THE RISKS AT THE PRISON FROM THE CONDUCT AND THE DEPARTMENT -- OR THE
COMMISSION GIVE SIGNIFICANT WEIGHT TO THAT. JUSTICE WAINER APTER:
IN BOW DENY WHICH WAS DECIDED AFTER HENRY THE APPELLATE DIVISION HELD THAT
EXCESS, IS DIMINISHED IN "SUI GENERIS. (READING AGAIN. FREND AND
THEN THEY GO ON TO SAY THAT THE APPRAISAL OF THE SERIOUSNESS OF THE OFFENSE
AND THE DEGREE TO WHICHLY OFFENSES SUBVERT DISCIPLINE ARE MATTERS PECULIARLY WITHIN
THE EXPERTISE OF THE CORRECTIONS OFFICIALS AND THAT APPRAISAL SHOULD BE
GIVEN SIGNIFICANT WEIGHT. YOU ARE NOT ARGUING THAT THAT CASE WAS WRONGLY DECIDED.
CORRECT. TIMOTHY P. MALONE: WE ARE NOT, WE HAVE ACCEPTED
THAT CASE FOR DECADES. JUSTICE WAINER APTER: SO THEN HOW DOES THE
COMMISSION'S ACTIONS IN THIS CASE FALL WITHIN THE RULES SET FORTH IN BOW
DENY. TIMOTHY P. MALONE: I THINK WE DID GIVE SIGNIFICANT
WEIGHT TO THEIR APPRAISAL THAT THERE'S SAFETY SECURITY RISKS THAT'S REFLECTED IN
THE COMMISSION'S DECISIONS THAT DOES GO TO THE HEART OF SAFETY AND SKOOURT
AT THE PRISON BUT I DO THINK THAT THERE WASN'T TESTIMONY THAT IT COULD NOT BE A
SIX-MONTH SUSPENSION, THAT IT WAS REMOVAL AND REMOVAL ONLY, AND I THINK
THERE IS A DISTINCTION THAT YOU CAN GIVE SIGNIFICANT WEIGHT AND DEFERRING TO THE
DEPARTMENT OF CORRECTIONS PENALTY DECISION, THAT ONCE THE CHARGE IS
REMOVED, THEY DON'T NECESSARILY HAVE TO UP ROOT THE DEPARTMENT THAT WOULD BE REMOVAL,
THEY CAN APPLY SUCCESSIVE DISCIPLINE GIVING WEIGHT TO THE DEPARTMENT'S
APPRAISAL. CHIEF JUSTICE RABNER: COUNSEL, IS THERE ANYTHING
ELSE YOU'D LIKE TO ADD. TIMOTHY P. MALONE: NO.
THE COURT: THANK YOU. MR. LEVY, REBUTTAL. CAN I START WITH A QUESTION?
NATHANIEL I. LEVY: YES, YOUR HONOR. THE COURT: WE'VE HEARD
THOUGHTFUL ARGUMENTS BY YOUR COLLEAGUES ON THE OTHER SIDE THAT THE PROBLEM HERE
IS THAT WE JUST HEARD GENERALIZED ASSERTIONS ABOUT THE RISK TO SAFETY AND SECURITY
IN THE INSTITUTION AND I WONDER IF YOU COULD RESPOND AND SPEAK TO WHAT'S BEEN
PRESENTED SO FAR AND WHAT ARE THE PARTICULAR RISKS AND THREATS IN LIEFKS
LIGHT OF THE FACTS OF THIS CASE. NATHANIEL I. LEVY: I'M IS A HAPPY
TO ADDRESS THAT, YOUR HONOR, AND I THINK IT'S FIRST IMPORTANT TO START OUT
BY NOTING THAT THE COMMISSION ITSELF DID NOT DISAGREE WITH THE D.O.C. ABOUT THE
DIRE SAFETY AND SECURITY CONSEQUENCES, SO IT AGREED AS JUSTICE WAINER APTER
NOTED THAT THESE OFFENSES COMBINED AS PART OF AN UNDUE PATTERN OF FAILURE TO RRT
AND UNDUE FAMILIARITY CONCERNING INTIMATE SEXUAL CONDUCT STRIKES AT THE
HEART OF SAFETY AND SECURITY WITHIN THE INSTITUTION. AND, YES, WE HAVE CERTAINLY
HEARD THAT THE ASSERTION THAT THERE WAS INSUFFICIENT RECORD EVIDENCE ABOUT
THE DEGREE OF SAFETY AND SECURITY CONSEQUENCES, FRANKLY I'M NOT SURE HOW MUCH MORE
RECORD EVIDENCE BEYOND WHAT WAS ALREADY PRESENTED HERE WOULD MATTER WHETHER
THE COMMISSION ITSELF RECOGNIZES THOSE CONSEQUENCES AND AS A MATTER OF LAW
RECOGNIZES THAT THOSE SAFETY RISKS ARE OFTEN A NECESSARY AND SUFFICIENT
CONDITION FOR REMOVAL, EVEN ON FIRST TIME OFFENSES. SO I THINK IT'S THE LOGIC
OF THE COMMISSION'S FINDINGS AND THEN ITS MITIGATION THAT'S THE PROBLEM HERE, RATHER
THAN SOME DEARTH OF EVIDENCE OF THE BUT AS TO WHAT'S IN THIS RECORD, JUST
BY WAY OF EXAMPLE, TO NOTE SOME THINGS IN THIS RECORD, SO LIEUTENANT WASHINGTON,
A 20 YEAR D.O.C. VETERAN WHO AT LEAST AT THE TIME OF THE PROCEEDING WAS
STATIONED AT EDNA MAHAN TESTIFIED A NUMBER OF TIMES ABOUT FAMILIARITY AND THE FACT
THAT THEY CREATE SAFETY AND SECURITY RISKS AND MUST BE REMOVED, SO THIS IS
BETWEEN 1 T 20 AND 1 T 33 AT NUMEROUS POINTS, AND AS TO MR. MCCANN'S SUGGESTIONS
AT POINTS THAT THIS CASE RAISES SOME QUESTIONS ABOUT LINE DRAWING OF UNDUE
FAMILIARITY, I THINK THE RECORD PLAINLY SUPPORTS THE FINDING HERE THAT THE
CSC MADE THAT THESE ACTS DID INVOLVE UNDUE FAMILIARITY AND THAT GENERALLY THEY ARE
IN FACTORY MOVABLE. BUT THERE'S EVIDENCE BY LIEUTENANT WASHINGTON, THERE ARE
IN ADDITION A NUMBER OF POLICIES SUCH AS THE OVER FAMILIARITY POLICY WHICH APPEARS
AT P.A. 70 TO 73 WHICH MAKES QUITE CLEAR THAT NO STAFF MEMBER SHALL ESTABLISH
OR MAINTAIN A PROFESSIONAL, NONPROFESSIONAL OR PERSONAL RELATIONSHIP WITH AN INMATE
AND IN FACT IF A CORRECTIONS OFFICER HAS A PREEXISTING RELATIONSHIP WITH A
N INCARCERATED PERSON WHO THEN ENTERS THAT INSTITUTION, THEY HAVE AN OBLIGATION
TO REPORT THE EXISTENCEGE THAT RELATIONSHIP WITHIN 48 HOURS. THESE ARE VERY CLEAR,
VERY STRICT ZERO TOLERANCE POLICIES, AND THE UNDUE FAMILIARITY POLICY AND
THE CLEAR REPORTING MANDATES, IT'S IMPORTANT TO RECOGNIZE ALSO OCCUR AS PART OF
AN OVER ALL DISCIPLINARY FRAMEWORK WITH A ZERO TOLERANCE POLICY FOR SEXUAL
ASSAULT. SO THE FAILURE TO REPORT A KISS IF AN INCARCERATED WOMAN WHO AS THE CHIEF
JUSTICE NOTED IS NOT REALLY LEGALLY ABLE TO CONSENT TO ANY PHYSICAL CONTACT
WITH A CORRECTIONS OFFICER, THE FAILURE TO REPORT A KISS FROM THAT WOMAN FOR WHOM
THE OFFICER ALREADY PERFORMED MANY FAVORS, RAISES SERIOUS SERIOUS DOUBT
AS TO WHETHER THAT SAME OFFICER WOULD FAITHFULLY COMPLY WITH A ZERO TOLERANCE TO
SEXUAL ASSAULT, WHICH WE ALL KNOW IS PARAMOUNT IN AN INSTITUTION SUCH AS EDNA
MAHAN. WITH REGARD TO ALL THE COLLOQUIES ABOUT THE SERIOUSNESS OF THIS CONDUCT
AND WHETHER OR NOT THIS CONDUCT WAS FAMILIARITY OR SERIOUS FAMILIARITY, NONE OF
THAT IS IN DISPUTE HERE, THE CSC FOUND THAT THESE VIOLATIONS, THAT THE
SUSTAINED CONDUCT HERE, THE PASSING OF THE MESSAGE COMBINED WITH THE FAILURE TO
REPORT A KISS, HAD SERIOUS SAFETY CONSEQUENCES AND AGAIN IT RECOGNIZED
AS I NOTED THAT GENERALLY AND OFTEN THAT IS ENOUGH TO BE REMOVABLE. SO ALL THIS
COURT NEEDS TO SAY IS THAT THE ONE SENTENCE EXPLANATION PROVIDED FOR
MITIGATING THE PENALTY TO A SIX-MONTH SUSPENSION ON THE BASIS OF THIS RECORD, WITH
THESE VERY EGREGIOUSES, SUBSTANTIATED ACTS, WAS ARBITRARY AND CAPRICIOUS. NO
ONE IS DISPUTING HERE THAT BEING A CORRECTIONS OFFICER IS A HARD JOB, I'M
CERTAINLY NOT DISPUTING THAT, IT'S PRECISELY BECAUSE IT'S SUCH A HARD JOB THAT
THE DEPARTMENT, THE WOMEN AT EDNA MAHAN AND INDEED THE PUBLIC AS A WHOLE
PLACE THE UTMOST TRUST IN OFFICERS TO COMPLY WITH EVERY SINGLE DOC POLICY AND THE
FAILURE TO EXPLAIN WHY SUCH A GROSS DEVIATION FROM THE STANDARD OF CARE
OF OFFICERS HERE WARRANTED JUST 6 MONTHS IS REVERSIBLE. AND JUST TO BRIEFLY CLEAR
AWAY SOME OF THE UNDER BRUSH ON OUR ALTERNATIVE POSITION ABOUT REOPENING
THE RECORD IN THE CASE OF REMAND, I WOULD JUST BRIEFLY NOTE THAT AS SOME OF THE
COLLOQUY SUGGESTED, OUR READING OF THE STIPULATION IS THAT MR. AMBROISE DID
AFFIRMATIVELY ACKNOWLEDGE THE VOLUNTARINESS OF THE VIDEO RECORDED CONFESSION, I THINK
THE WORDS OF THAT STIPULATION MAKE IT CLEAR IF THERE'S ANY DOUBT, I THINK
MR. AMBROISE'S APPELLATE DIVISION BRIEF AT PAGE 17 ALSO SEEMS TO ACKNOWLEDGE THAT,
BUT ONCE AGAIN, THIS COURT NEED NOT REACH THAT-ISH OF REMAND AND REOPENING IF IT
CONCLUDES AS IT SHOULD THAT THE C C'S DECISION HERE WAS ARBITRARY AND
CAPRICIOUS AND SHOULD BE REVERSED OUTRIGHT. CHIEF JUSTICE RABNER:
THANK YOU COUNSEL, THANK YOU TO ALL COUNSEL FOR THE VERY FINE ARGUMENTS,