SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0650-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUINCY M. ARMSTRONG, a/k/a

SHOT ONE,

Defendant-Appellant.

______________________________

Submitted June 24, 2020 – Decided July 20, 2020

Before Judges Accurso and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 16-06-0437.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Laura B. Lasota, Assistant Deputy Public 

Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Regina M. Oberholzer, Deputy Attorney 

General, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Defendant appeals from a September 10, 2018 judgment of conviction 

entered against him in the Law Division. We affirm.

I.

The following facts are derived from the record. On July 20, 2014, while 

defendant was incarcerated at the Union County Jail, corrections officers 

searched his cell based on a suspicion he, in cooperation with another person, 

had smuggled contraband into the facility. As they entered the cell, the officers 

saw defendant, who had a sheet over his head, put something into the toilet and 

flush. The officers recovered a cell phone charger and batteries.

Jail officials charged defendant with three disciplinary offenses arising 

from his possession of the cell phone charger. On July 24, 2014, after a 

disciplinary hearing, defendant was adjudicated guilty of violating rules 

20.306*, conduct which disrupts or interferes with security or the orderly 

running of the Union County Jail; 20.009*, misuse or possession of electronic 

equipment or peripherals; and 20.802, attempting to commit or aiding another 

in committing any of the above acts. The hearing officer imposed sanctions of 

ten days in detention for each violation for a total of thirty days. The sanctions 

were upheld in an administrative appeal.
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On October 2, 2014, when fixing a flood at the jail, plumbers found a cell 

phone in pipes leading from the toilet in defendant's cell. Defendant ultimately 

admitted that he had flushed the cell phone down the toilet.

A grand jury indictment charged defendant with third-degree possession

of an electronic communication device while confined to a county correctional 

facility (cell phone), N.J.S.A. 2C:29-10(b), and third-degree possession of a 

device to recharge an electronic communication device while confined to a 

county correctional facility (cell phone charger), N.J.S.A. 2C:29-10(b).

Defendant moved to dismiss the indictment, arguing it was barred by the 

Double Jeopardy Clauses of the federal and state constitutions. He argued that 

the charges in the indictment are based on conduct for which he was previously 

sanctioned in the inmate disciplinary process, precluding a subsequent criminal 

prosecution. The trial court denied defendant's motion, concluding that double 

jeopardy protections do not apply to inmate disciplinary sanctions.1

Defendant subsequently entered a plea of guilty to both counts of the 

indictment. As is explained more fully below, at the plea hearing, defendant did 

not reserve the right to appeal the denial of his motion to dismiss the indictment.

 

1

 Defendant also argued that the indictment should be dismissed under the 

doctrine of collateral estoppel. He does not advance that argument on appeal.
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At sentencing, the State elected not to apply for an extended term. The 

trial court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) ("[t]he risk 

that the defendant will commit another offense"), six, N.J.S.A. 2C:44-1(a)(6) 

("[t]he extent of the defendant's prior criminal record and the seriousness of the 

offenses of which he has been convicted"), and nine, N.J.S.A. 2C:44-1(a)(9) 

("[t]he need for deterring the defendant and others from violating the law"), and 

no mitigating factors. 

Having determined the aggravating factors outweighed the non-existent 

mitigating factors, the court sentenced defendant to a three-year period of 

incarceration on each count of the indictment. The sentences are to run 

concurrent to each other and consecutive to the sentence defendant was then 

serving on unrelated convictions.

This appeal followed. Defendant raises the following argument for our 

consideration:

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTION TO DISMISS THE 

INDICTMENT BECAUSE HIS CONSTITUTIONAL 

PROTECTION AGAINST DOUBLE JEOPARDY 

PREVENTED SUBSEQUENT PROSECUTION AND 

PUNISHMENT FOR THE SAME CONDUCT THAT 

SERVED AS THE BASIS FOR THE DISCIPLINARY 

CHARGES LODGED AGAINST HIM BY THE JAIL.
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A. THE INDICTMENT SEEKS TO PROSECUTE 

DEFENDANT A SECOND TIME FOR THE SAME 

OFFENSE AFTER CONVICTION.

B. DEFENDANT WAS CRIMINALLY 

PUNISHED IN SUCCESSIVE PROCEEDINGS.

II.

We review defendant's arguments, which are based on legal issues, de 

novo. State v. Twiggs, 233 N.J. 513, 532 (2018). As an initial matter, the State 

argues defendant waived his right to appeal the denial of his motion to dismiss 

the indictment when he entered a guilty plea without a reservation of that right. 

We agree.

Rule 3:9-3(f) provides that

[w]ith the approval of the court and the consent of the 

prosecuting attorney, a defendant may enter a 

conditional plea of guilty reserving on the record the 

right to appeal from the adverse determination of any 

specified pretrial motion. If the defendant prevails on 

appeal, the defendant shall be afforded the opportunity 

to withdraw his or her plea. Nothing in this rule shall 

be construed as limiting the right of appeal provided for 

in [R.] 3:5-7(d).

Rule 3:5-7(d) provides that denial of a motion to suppress evidence "may be 

reviewed on appeal from a judgment of conviction notwithstanding that such 

judgment is entered following a plea of guilty." Thus, failure to enter a 
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conditional guilty plea waives appellate review of all non-Fourth Amendment 

claims. State v. J.M., 182 N.J. 402, 410 (2005).

Our review of the transcript of defendant's guilty plea revealed no 

statement by defendant, his counsel, the assistant prosecutor, or the court 

concerning defendant's motion to dismiss the indictment. Neither defendant nor 

his counsel expressly reserved the right to appeal the denial of that motion, the 

assistant prosecutor did not express the State's consent to such a reservation, and 

the court did not express its approval of such a reservation.

We are not persuaded by defendant's argument that we should overlook 

his waiver of the right to appeal the denial of the motion because the trial court 

failed to inform him of his right to enter a conditional guilty plea. Prior to 

accepting defendant's plea, the trial court confirmed with him that he had 

reviewed the plea form with his counsel. That form provides that defendant was 

waiving his right to appeal all pretrial motions except those to suppress physical 

evidence. The record supports the conclusion defendant was informed at the 

time of the plea that he had waived his right to appeal the denial of his motion 

to dismiss the indictment. See State v. Crawley, 149 N.J. 310, 318 (1997) 

(finding defendant's answer of "yes" on plea form to the question of whether he 
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had discussed merger with counsel contradicted his claim that he did not 

understand he was waiving his right to merger).

Nor is our conclusion altered by the following exchange from the plea 

hearing, on which defendant relies:

THE COURT: So, Mr. Armstrong, I did discuss with 

your attorney the fact that if you were so inclined, that 

I would waive your appearance at sentencing.

. . . .

However, it's my understanding that you do want to [be] 

present for sentencing. It's actually my preference. So 

you do want to come to sentencing, correct?

THE DEFENDANT: I don't want to waive nothin'.

It is evident that this exchange, which took place after the court accepted 

defendant's guilty plea, concerned only defendant's right to appear at sentencing, 

which he did not waive.

The State acknowledges that the trial court erred at the conclusion of the 

sentencing hearing when it stated defendant had preserved the right to appeal 

the denial of his motion to dismiss the indictment. After the court sentenced

defendant and found that he understood his appeal rights, the judge asked 

defendant if he had any questions for the court. This exchange followed:

THE DEFENDANT: Yeah. I have a question.
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THE COURT: Sure.

THE DEFENDANT: Because you . . . said that you 

denied my [m]otion based on those factors, right . . . ?

THE COURT: Well, for the reasons that I --

THE DEFENDANT: -- that you read?

THE COURT: -- the reasons that I gave you when I 

denied the [m]otion, as well. . . . But what I was 

saying, Mr. Armstrong, is that I can understand your 

feelings that you feel that you're being penalized twice 

for the same conduct. . . . But based on that law, the 

law allows for the institution to have their penalties and 

for you to be prosecuted criminally. [T]hat's my 

interpretation of the law. You can appeal that. You 

have the right to do that. That's what I'm telling you.

THE DEFENDANT: I know that.

This exchange, made after the court accepted the plea and sentenced 

defendant, is the first time the right to appeal the denial of the motion to dismiss 

is mentioned in the record and contradicts the plea form defendant signed after 

consultation with his counsel. The court's post-sentencing observation is not the

equivalent of an on-the-record reservation of rights made with the consent of the 

State required by Rule 3:9-3(f).

For the sake of completeness, we note that had defendant reserved the 

right to appeal the denial of his motion to dismiss the indictment, he would not 

have been successful before this court. Protection against double jeopardy under 
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Article 1, Paragraph 11 of the New Jersey Constitution is co-extensive with that 

afforded by the Double Jeopardy Clause of the United States Constitution. State 

v. Womack, 145 N.J. 576, 582 (1996); State v. Koedatich, 118 N.J. 513, 518 

(1990). The federal and state constitutional provisions bar: (1) a second 

prosecution for the same offense after an acquittal; (2) a second prosecution for 

the same offense after a conviction; and (3) multiple punishments for the same 

offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Defendant argues 

the indictment is a second prosecution after his "conviction" of the disciplinary 

offenses and an attempt to punish him twice for the same offense.

In Russo v. New Jersey Department of Corrections, 324 N.J. Super. 576 

(App. Div. 1999), we rejected an inmate's argument that the Double Jeopardy 

Clause applies to prison disciplinary sanctions. We held that an adjudication 

that an inmate has violated the disciplinary code of an institution is not a 

conviction under the Double Jeopardy Clause. Id. at 585-86. As we explained, 

[a] criminal prosecution is a judicial proceeding that 

vindicates the community's interests in punishing 

criminal conduct. United State 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 
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setting, disciplinary sanctions do not constitute 

additional punishment.

[Id. at 583 (citation omitted).] 

Thus, we concluded, while "common notions of fundamental fairness" apply in 

the prison disciplinary setting and might preclude "repeated disciplinary 

prosecutions and sanctions for the same offense or conduct[,]" the Double 

Jeopardy Clause is not applicable in the prison disciplinary context. Id. at 585-

86. In reaching this holding, we noted "numerous federal court decisions 

holding that double jeopardy does not apply to prison disciplinary proceedings" 

and that "many of these decisions deal specifically with criminal prosecutions 

following disciplinary proceedings for the same conduct . . . ." Id. at 585.

We see no reason to depart from our holding in Russo, nor do we find a 

deprivation of fundamental fairness in defendant's prosecution for criminal 

offenses based, in part, on the conduct for which he received a modest 

disciplinary sanction from county jail administrators. Defendant's conduct 

posed a serious threat to the security of the facility, and his thirty-day detention 

at the county jail did not extend his incarceration. Of particular note, as was the 

case in Russo, is the fact that the criminal conduct of which defendant was 

convicted, while perhaps overlapping, was essentially different than the 

disciplinary infractions for which he was sanctioned. Defendant was disciplined 
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only for possession of the cell phone charger. His criminal conviction included 

a count of possession of the cell phone, discovered months after the charger was 

confiscated, for which he did not receive a disciplinary sanction. In addition, 

defendant's disciplinary infractions included his disruption of the security and 

orderly operation of the jail, conduct which is not an element of either criminal 

offense.

To the extent we have not addressed defendant's other arguments, we 

conclude they are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2).

Affirmed.