NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3276-18T4
STATE OF NEW JERSEY,
Plaintiff-Appellant/
Cross-Respondent,
v.
ISAAC WOOD, III,
Defendant-Respondent/
Cross-Appellant.
____________________________
Submitted October 10, 2019 – Decided September 15, 2020
Before Judges Fuentes, Haas, and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Municipal Appeal No. 2018-
09.
Angelo J. Onofri, Mercer County Prosecutor, attorney
for appellant (Laura Sunyak, Assistant Prosecutor, of
counsel and on the briefs).
Furlong and Krasny, attorneys for respondent (Scott A.
Krasny, on the brief).
PER CURIAM
At all times relevant to this case, defendant Isaac Wood, III, was a Senior
Corrections Officer at the Mercer County Corrections Facility (MCCC). On
March 29, 2017, a Mercer County Grand Jury indicted defendant on two counts
of second degree official misconduct, N.J.S.A. 2C:30-2a, and one count of third
degree tampering with public records or information contrary to N.J.S.A. 2C:28-
7a(1). The indictment also charged Corrections Officer Trachell Syphax,
defendant’s then fiancé and now his wife, with two counts of second degree
official misconduct, N.J.S.A. 2C:30-2a and N.J.S.A. 2C:30-2b, and one count of
third degree tampering with public records or information, N.J.S.A. 2C:28-
7a(1).
These charges arose from an altercation involving defendant and Syphax,
in their capacity as correction officers, against Rafael Jardines, an inmate at the
MCCC. On February 20, 2018, the State dismissed the indictment and issued a
summons-complaint charging defendant with simple assault, N.J.S.A. 2C:12-
1a(1), a disorderly persons offense. 1 The State did not file any charges against
1
The State conceded that it commenced the prosecution of the simple assault
charges beyond the one-year limitation period codified in N.J.S.A. 2C:1-6b(2).
Conversely, defendant, while represented by counsel, waived the statute of
limitations as a defense to this charge.
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2
Syphax. The simple assault charge against defendant was thereafter referred for
trial before the Hopewell Township Municipal Court.
In a trial conducted on March 27, 2018, the Hopewell Township Municipal
Court found defendant guilty of simple assault against Jardines. The Mercer
County Prosecutor's Office (MCPO) apprised the municipal court judge that at
the time of sentencing, the State would seek a judgment of forfeiture of
defendant's public position as a corrections officer pursuant to N.J.S.A. 2C:51-
2(a)(2). This judgment would also permanently disqualify defendant from
obtaining any future public employment.
On May 1, 2018, the municipal court judge sentenced defendant to pay a
$1,000 fine, and mandatory costs and penalties. The municipal court judge also
granted the State's application for a judgment of forfeiture of defendant's public
position as a corrections officer. In reaching this decision, the municipal court
judge applied the forfeiture factors outlined by the Supreme Court in Flagg v.
Essex County Prosecutor, 171 N.J. 561, 579 (2002). Defendant appealed the
municipal court's decision to the Law Division.
Pursuant to Rule 3:23-8(a)(2), the Law Division judge conducted a de
novo review of the record developed before the municipal court and found
defendant guilty of simple assault. The trial judge sentenced defendant to pay
A-3276-18T4
3
the same fine and penalties imposed by the municipal court. However, the Law
Division judge reexamined the Flagg factors and concluded "that an
overwhelming majority of factors . . . weigh in favor of waiver." The judge
found the State’s decision to seek the forfeiture of defendant's public office
under these circumstances constituted an abuse of discretion.
The State now appeals the Law Division's order denying its motion
seeking the forfeiture of defendant's public position as a corrections officer.
Defendant cross-appeals the Law Division's decision that found him guilty of
simple assault against Jardines. After reviewing the record presented to the Law
Division as well as the factors established by the Supreme Court in Flagg, we
conclude the Law Division judge mistakenly exercised his discretionary
authority when he denied the State's application for a judgment of forfeiture of
defendant's position as a corrections officer. In response to defendant's cross-
appeal, we affirm the conviction for simple assault.
I.
The State's sole witness was Phyllis Oliver who, at all times relevant to
this case, was employed by Mercer County Department of Corrections as a
lieutenant and Deputy Warden at the MCCC. As Deputy Warden, Oliver is
"responsible for the Internal Affairs Department [and] . . . all the investigation[s]
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4
involving any allegations of misconduct with the officers." She testified that all
corrections officers are "required to go through bi-annual use of force training."
This includes both use of force and firearm training. Through Oliver's
testimony, the State presented documentary evidence that showed defendant
received this training on April 30, 2016, as well as the Attorney General's
guidelines on use of force by law enforcement officers, known as standard
operating procedure (SOP) 935.
At the prosecutor's request, Oliver read into the record the relevant
sections of SOP 935:
Physical contact which means routine or procedural
contact with an individual that is necessary to
effectively accomplish a legitimate law enforcement
objective. Examples of physical force would include,
but not limited to, holding an arm of an individual,
during escort. Handcuffing an individual.
Maneuvering or securing an individual for a search or
guiding an individual into a vehicle.
SOP 935 also cautioned that staff members, including corrections officers,
should use the minimum physical force possible when necessary to control an
individual. Such force must be objectively reasonable under the circumstances
and consistent with the facility's procedures.
The Law Division judge found that on May 11, 2016, inmate Jardines was
housed in cell number four of the Medical Unit and placed "on suicide watch
A-3276-18T4
5
after having been transported from Trenton Psychiatric Hospital." Because
Jardines required one-on-one suicide surveillance, a corrections officer was
stationed outside his cell twenty-four hours a day. Officer Bethea2 was assigned
to conduct the one-on-one suicide watch of Jardines; Officer Syphax, was
assigned to periodically relieve Bethea.
The DVD security footage from May 11, 2016 includes three clips
showing the interactions between Officer Bethea, Officer Syphax, defendant,
and Jardines. The third clip depicts the evidence relied on by the State to
prosecute defendant on the charge of simple assault. The Law Division judge
provided the following description of this video evidence:
The first clip shows . . . defendant come up to Officer
[Syphax] and Officer Bethea talking outside of
Jardine’s cell before Officer Bethea and . . . defendant
entered the room.
The second clip utilizes a split screen to depict two
different camera angles filming at the same time. It also
shows the victim, Jardine[s], wearing a torn suicide
gown and which shows Officer [Syphax] having
relieved Officer Bethea. This also shows . . . defendant
walking down the hallway carrying what appears to be
a suicide gown. He then removes the victim from his
cell, takes him to a physical therapy room to change the
suicide gown and then brings him back to his cell.
2
The appellate record does not disclose Officer Bethea's first name.
A-3276-18T4
6
The third video also shows the victim sitting in his cell
on the toilet wherein [Jardines] takes a [S]tyrofoam cup
and uses it to throw some stuff -- some substance under
the door toward Officer [Syphax]’s feet. This depicts…
defendant walking down the hallway to the victim’s cell
which he immediately unlocks the door, enters the room
without hesitation and hits the victim forcing him to the
floor. He then kicks the inmate in the body and groin
area, at which time Officer [Syphax] calls a code 6 and
other officers come for assistance.
The Law Division judge found the incident report reviewed by Deputy
Warden Oliver indicates that Officer Syphax yelled out: "he threw piss on me,"
presumably referring to Jardines. As part of the Internal Affairs investigation,
Oliver also reviewed the DVD recording of this incident. The Law Division
judge accepted the following description of the incident provided by Deputy
Warden Oliver:
According to the testimony of former Deputy Warden
Oliver who was the internal affairs investigator at the
correctional center, following a review of the DVD of
the medical unit it showed the inmate taking a
substance from the toilet and throwing it under the door
. . . Deputy Warden did not know whether the thrown
substance was toilet water, urine or excrement.
Defendant testified that when he heard his fiancé "yelling, upset" that
Jardines had thrown "piss" on her, he responded to Jardines's cell with the intent
to handcuff him and take him off the unit. According to defendant, before he
reached Jardines's cell, the inmate was defiant and would not follow Officer
A-3276-18T4
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Syphax’s orders. When he arrived at the cell, Jardines was standing at the wall
with the Styrofoam cup in his hand. In the course of his direct testimony,
defendant described his understanding of the significance of Jardines's medical
slip:
Q. Are you familiar . . . on May 11th, 2016 a medical
slip or a form for Jardines?
A. Yes, there was one on the door.
Q. Okay. And what's the purpose of that as you
understand it?
A. So, you can know what they can have and what they
can' t have and sort of they status.
Q. And what were you aware of in terms of whether an
Inmate Jardines [sic] could or could not have on May
11th?
A. I was aware of -- basically, he could have nothing
but his soup. He couldn't have no sharps, couldn't have
no utensils, couldn't have no blanket, no sheets, towels.
At the time of this incident with Jardines, defendant had been employed
as a corrections officer at the MCCC for more than twenty years. His duties
included conducting security checks of inmates held in the Medical Department.
While sitting at a desk located in the waiting area of the Medical Department,
he viewed the four video monitors showing the inside of the four cells housing
medically fragile inmates.
A-3276-18T4
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In response to his attorney's questions, defendant testified that when he
entered Jardines's cell, he immediately yelled: "Get in back of the cell. Put the
cup down" ten different times. According to defendant, Jardines did not comply
and turned away with the cup. Defendant testified that when "[Jardines] leaned
back with the cup," he characterized Jardines's demeanor as aggressive and
thought: "he's going to toss something on me."
Deputy Warden Oliver testified she did not see any evidence that Jardines
was being aggressive or resisting when defendant entered his cell. She testified
that a corrections officer may infer an inmate is being aggressive when there is
evidence that he or she "is coming at you, make[s] gestures at you . . . . The
record shows the initial standoff between defendant and Jardines transpired over
a two-second time frame. Defendant claimed he did not intend to strike or hit
Jardines when he attempted to slap the cup out of the inmate's hand. When
Jardines fell to the floor, defendant testified that he ordered him to "lay flat" and
"let me see your hands"; defendant alleged that Jardines remained defiant and
told him: "fuck you."
It was at this point that defendant's conduct crossed the line separating
accepted attempts to control the situation and criminal assault. The following
testimony elicited by defense counsel on direct examination illustrates the point:
A-3276-18T4
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Q. Tell me again how you're giving him those
commands? What voice were you using?
A. "Lay flat on the ground. Let me see your hands. Let
me see your hands."
Q. And did he do that?
A. No.
Q. What did you do next?
A. I kicked him in the mid-section.
Q. Why?
A. To let him know I wasn't playing. I wanted him to
do what I wanted him to do.
Based on this evidence, the Law Division judge made the following
findings:
This court finds similarly to the lower court.
[D]efendant’s purpose was not just to handcuff the
victim but, rather, was an attempt to cause him harm.
The video clip 3 is clear and that the defendant well --
went well beyond any reasonable force required to
subdue and handcuff the victim. Furthermore, that clip
also confirms that within seconds of . . . defendant
entering his cell, striking the victim -- victim and then
kicking him three times he was assisted by three other
officers who quickly were able to handcuff the victim,
put him in a suicide garb and transport him out of the
unit.
The court finds that there was no justification for … the
defendant’s actions and finds beyond a reasonable
A-3276-18T4
10
doubt that this defendant attempted to cause bodily
injury to this victim and that his actions were
purposeful.
II.
Because defendant's cross-appeal is predicated on the threshold question
of culpability, we begin our legal analysis by addressing the following
arguments:
DEFENDANT’S CONVICTION FOR AN ATTEMPT
TO CAUSE BODILY INJURY PURSUANT TO
N.J.S.A. 2C:12-1 MUST BE REVERSED
WOOD’S USE OF FORCE AGAINST THE INMATE
WAS JUSTIFIED AND HIS CONVICTION
PURSUANT TO N.J.S.A. 2C:12-1 MUST BE
REVERSED.
We reject these arguments and affirm defendant's conviction. Pursuant to
N.J.S.A. 2C:12-1(a)(1), a person is guilty of simple assault if he or she:
"attempts to cause or purposely, knowingly or recklessly causes bodily injury to
another." N.J.S.A. 2C:11-1(a) defines "bodily injury" as "physical pain, illness
or any impairment of physical condition." Here, the record we have described
amply supports the Law Division's factual findings and conclusions of law.
Defendant's arguments lack sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(2).
A-3276-18T4
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We next address the State's direct appeal that seeks the reversal of the Law
Division's order denying its application for a judgment of forfeiture of
defendant's position as a Mercer County Corrections Officer. We start by stating
the relevant statutory standard:
A person holding any public office, position, or
employment, elective or appointive, under the
government of this State or any agency or political
subdivision thereof, who is convicted of an offense
shall forfeit such office, position or employment if:
....
(2) He is convicted of an offense involving or touching
such office, position or employment;
....
As used in this subsection, "involving or touching such
office, position or employment" means that the offense
was related directly to the person’s performance in, or
circumstances flowing from, the specific public office,
position or employment held by the person.
[N.J.S.A. 2C:51-2(a) (emphasis added)]
In Moore v. Youth Corr. Inst., 119 N.J. 256, 266 (1990), the Supreme
Court cited with approval our decision in State v. Pitman, 201 N.J. Super. 21,
26 (App. Div. 1985), in which we held that a correction officer’s conviction of
simple assault on an inmate touched and concerned his office as a public
employee. The Court in Moore stated that such a conviction has "an obvious
A-3276-18T4
12
connection to employment" that [should] alert the trial court and the perpetrator
that forfeiture would follow from [such] a conviction." 201 N.J. Super. at 26.
The prosecutor's decision to seek the forfeiture of defendant's public
position as a corrections officer under these circumstances is subject to judicial
review under an abuse of discretion standard. As the Court acknowledged in
Flagg, although this standard "defies precise definition," a reviewing court will
reverse a trial court's decision that is "made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis." 171 N.J. at 571 (quoting Achacoso-Sanchez v. Immigr. and
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir.1985)). The Court in Flagg
also held that "an abuse of discretion will be manifest if [a] defendant can show
that a prosecutorial veto (a) was not premised upon a consideration of all
relevant factors, (b) was based upon a consideration of irrelevant or
inappropriate factors, or (c) amounted to a clear error in judgment." Ibid.
(quoting State v. Baynes, 148 N.J. 434, 444 (1997)).
The Flagg Court adopted sixteen factors the prosecutor must consider to
determine whether to waive the forfeiture of defendant's public employment.
171 N.J. at 579. A court reviewing the prosecutor's decision must apply these
same factors to determine whether the decision to enforce the forfeiture statute
A-3276-18T4
13
in this case constituted an abuse of the prosecutor's discretionary authority.
These factors are:
1) the totality of the circumstances surrounding the
event; 2) the nature of the offense, including its gravity
and substantiality, whether it was a single or multiple
offense and whether it was continuing or isolated; 3)
the quality of moral turpitude or the degree of guilt or
culpability, including the employee's motives, reasons
and personal gain; 4) the duties of the employee; 5) the
relationship between the offense and the duties of the
employee, including but not limited to, whether the
criminal activity took place during work hours, or
involved work facilities or equipment; 6) the
employee's public employee history and record; 7) the
employee's length of service; 8) whether forfeiture will
be an undue hardship upon the employee and his
family; 9) the employer's desires; 10) the needs and
interests of the victim and society; 11) the extent to
which the employee's offense constitutes part of a
continuing pattern of anti-social behavior; 12) the
employee's prior record of convictions and disciplinary
infractions; 13) the threat presented to coworkers or the
public if the employee is permitted to retain his or her
position; 14) any involvement of the employee with
organized crime; 15) whether the employee has been
granted waiver on a prior occasion; and 16) the impact
of waiver on the employment status of codefendants.
[(Ibid.) (emphasis added)]
The Court in Flagg expressly acknowledged the Attorney General's
authority to modify these factors from time to time. Ibid. The Attorney General
Guidelines currently in effect for deciding whether to apply for a waiver of
A-3276-18T4
14
forfeiture of public office pursuant to N.J.S.A. 2C:51-2(e) (Guidelines) changed
Flagg Factor 6 and Factor 8. Specifically, the Attorney General Guidelines now
provide that a prosecutor shall consider:
15. Whether waiver of forfeiture of office would
undermine public confidence in the integrity of
important governmental functions, including but not
limited to law enforcement functions; and
16. Nature and scope of cooperation with the
prosecuting authorities. 3
In its letter in lieu of a formal brief submitted to the municipal court and
the Law Division, the MCPO addressed each of the factors promulgated by the
Attorney General and argued that, based on the facts of this case, forfeiture was
axiomatic. The prosecutor emphasized: "There is simply no aspect of . . .
defendant's criminal conduct that was not directly and completely related to his
position as a corrections officer." The record shows, however, that instead of
considering whether the State abused its discretionary authority, the Law
Division judge substituted his judgment to conclude defendant was entitled to a
waiver of forfeiture. The following statement made by the Law Division judge
in support of his decision the illustrates the point:
3
https://www.state.nj.us/lps/dcj/agguide/waiverofforfeiture.pdf (Last visited on
September 3, 2020).
A-3276-18T4
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Here, the state argued that any waiver would send a
loud and clear message to the public that excessive
force by law enforcement is not considered a serious
infraction.
While . . . this court does not disagree with that, the
court notes that this defendant was found guilty of
simple assault, which is not deemed a "serious
infraction," and in fact this is one of only two
convictions where a waiver may be obtained. Further,
. . . defendant suffered significant financial impact as a
result of what is now in excess of 2-1/2 years of
suspension without pay. This weighs in favor of the
waiver, the nature and scope of cooperation with the
. . . prosecuting authorities.
Here, both the state and the defendant are consistent
that the prosecution did not seek cooperation from this
defendant, again, which weighs in favor of a waiver.
Upon an overall balancing of the above factor this court
concludes that an overwhelming majority of factors
. . . weigh in favor of waiver.
[(emphasis added)]
This shows the Law Division judge departed from the policies established
by the Supreme Court and the Attorney General and impermissibly conduced a
de novo review of the factors he found most relevant and to reach a conclusion
untethered from the abuse of discretion standard of review.
Based on this record, we affirm the Law Division's order finding
defendant guilty of committing simple assault against MCCC inmate Jardines.
It is undisputed that defendant kicked Jardines in the midsection of his body,
A-3276-18T4
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while Jardines laid on the floor. On the issue of forfeiture, it is also undisputed
that defendant committed this offense while serving as a corrections officer. We
hold that the State properly sought the forfeiture of defendant's public position
pursuant to N.J.S.A. 2C:51-2(a)(2) because this offense was related directly to
defendant's performance as a corrections officer. We thus reverse the Law
Division's order denying the MCPO's application for the forfeiture of
defendant's public position as a Mercer County Corrections Officer.
Affirm in part and reversed in part. We do not retain jurisdiction.
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