ANTHONY CARUSO, et al. v. CITY OF NEWARK
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2529-04T22529-04T2
ANTHONY CARUSO, ANTHONY VENACIO,
CHRISTOPHER GIALANELLA, SILAS
SMITH and MARISOL GONZALEZ-CARDONA,
Plaintiffs-Respondents,
and
WENDELL HARPER,
Defendant,
v.
CITY OF NEWARK,
Defendant-Appellant.
MARISOL GONZALEZ-CARDONA,
Plaintiff-Respondent,
v.
CITY OF NEWARK,
Defendant-Appellant.
SILAS SMITH,
Plaintiff-Respondent,
v.
CITY OF NEWARK,
Defendant-Appellant.
Argued: December 21, 2005 - Decided:
Before Judges Fall, Parker and C.L. Miniman.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Numbers ESX-L-9792-02, ESX-L-12065-02, and ESX-L-110-03.
Kathleen C. Goger, Assistant Corporation Counsel, argued the cause for appellant (Joanne Y. Watson, Corporation Counsel, attorney; Ms. Goger and Susan S. Singer, Assistant Corporation Counsel, on the brief).
Joseph D. Rotella argued the cause for respondent Anthony Venacio.
Joseph J. Triarsi argued the cause for respondent Silas Smith (Pisano, Triarsi & Betancourt, attorneys; Mr. Triarsi, of counsel; Richard D. Huxford, on the brief).
Edward J. Bilinkas argued the cause for respondent Marisol Gonzalez-Cardona.
No brief was filed by the other respondents.
PER CURIAM
This is an action instituted by City of Newark police officers against the City pursuant to the provisions of N.J.S.A. 40A:14-155 seeking to recover legal fees for their defense of criminal charges brought against them following the resolution of those charges in their favor. The City appeals from entry of a judgment against it in the Law Division on December 17, 2004, after a non-jury trial conducted between November 8, 2004, and November 29, 2004, requiring the City to pay counsel fees in the amount of $50,000 to plaintiff Anthony Caruso; $85,340 to plaintiff Anthony Venacio; $7,500 to plaintiff Christopher Gialanella; $74,950 to plaintiff Marisol Gonzalez-Cardona; and $75,750 to plaintiff Silas Smith, based on the trial court's application of the provisions of N.J.S.A. 40A:14-155. The following factual and procedural history is relevant to our consideration of the arguments advanced by the parties.
The issues in this case relate to an incident occurring during the late evening hours of June 14, 1999, at the North Ward police precinct located at 1 Lincoln Avenue in Newark, concerning the treatment of Emmanuel Aldea, a person who had been arrested based on allegations of sexual offenses committed against a ten-year-old male child. At that time, plaintiffs Newark Police Sergeant Anthony Caruso and Newark Police Officers Wendell Harper, Christopher Harper, Christopher Gialanella, Marisol Gonzalez-Cardona, Silas Smith, and Anthony Venacio were on duty at the North Ward precinct.
As a result of a police internal affairs investigation of the June 14, 1999 incident, criminal complaints were filed against all six police officers, and they were later charged in Essex County Indictment Number 2000-01-259 with various criminal offenses. Count one of the indictment charged Caruso, Harper, Gonzalez-Cardona, Gialanella, Smith, and Venacio with second-degree official misconduct, by permitting or failing to attempt to stop and/or failing to report an assault upon Aldea, a person in custody of the Newark Police Department, contrary to N.J.S.A. 2C:30-2c. Count two charged Caruso, Gialanella, Smith and Venacio with second-degree official misconduct, by committing an act relating to their office but constituting an unauthorized exercise of their official functions, in assaulting Aldea while in the custody of the Newark Police Department, contrary to N.J.S.A. 2C:30-2a. Count three charged Caruso, Harper, Gialanella, Gonzalez-Cardona, Smith, and Venacio with second-degree aggravated assault upon Aldea, contrary to N.J.S.A. 2C:12-1b(1). Count four charged Caruso, Harper, Gonzalez-Cardona, Gialanella, Smith and Venacio with second-degree conspiracy to commit aggravated assault upon Aldea, contrary to N.J.S.A. 2C:5-2 and 2C:12-1b(1). Gialanella and Venacio were charged in counts five and six, respectively, with fourth-degree false swearing by making false statements on June 27, 1999, contrary to N.J.S.A. 2C:28-2a.
Tried to a jury, Caruso and Harper were acquitted of all criminal charges on July 17, 2001. On July 26, 2001, the Essex County Prosecutor downgraded all charges against Gialanella, Gonzalez-Cardona, Smith and Venacio to disorderly-persons charges of simple assault, N.J.S.A. 2C:12-1a (counts one through four), and unsworn falsification to authorities, N.J.S.A. 2C:28-3b (counts five and six). In his recommendation that the charges, as amended, be dismissed, Assistant County Prosecutor/Director of Citizens Complaint Bureau Paul J. Bradley, provided the Law Division with the following reasons for the request in a memo to the court dated July 26, 2001:
The above charges were downgraded to disorderly persons offenses on motions of the State. A jury acquitted codefendants Anthony Caruso and Wendell Harper on all counts on July 17, 2001.
The State possesses less evidence against the above defendants. The above defendants played a lesser role in the alleged conduct at Newark's North District police station on June 14, 1999. The State's case is based largely upon the testimony of Manuel Aldea. Aldea, presently indicted for sexual assault, gave three sworn statements to Newark Internal Affairs. Aldea also testified before the grand jury and at the aforementioned trial. Aldea contradicted himself in each version.
Moreover, Aldea implicates Gialanella, Smith and Venacio only in the assault in the kitchen area. Aldea sustained no physical injuries from this alleged assault. There is no evidence connecting Gialanella, Smith and Venacio to the prisoners' beating of Aldea in the holding cell.
The evidence against Gonzalez-Cardona is slimmer. A single witness identifies Gonzalez-Cardona as standing at the window in front of the cell area. The witness heard yelling in the cell area. The witness states that Gonzalez-Cardona yelled "fuck him up" and walked away from the window.
The State's evidence establishes, at best, limited accomplice liability of the above defendants. In light of the paucity of evidence against the above defendants and the acquittal of the officers who were principally liable, the State moves the above charges for dismissal.
On August 6, 2001, the Law Division granted the State's application for dismissal of all charges against Gialanella, Gonzalez-Cardona, Smith and Venacio, based upon the reasons outlined in the July 26, 2001 dismissal memo.
On June 21, 2002, plaintiffs Caruso, Harper, Venacio, Gialanella, Smith and Gonzalez-Cardona filed a complaint against the City of Newark, docket number ESX-L-9792-02, seeking reimbursement for their attorneys' fees incurred in the defense of the criminal charges filed against them, pursuant to the authority contained in N.J.S.A. 40A:14-155. On December 23, 2002, Gonzalez-Cardona filed a separate complaint in lieu of prerogative writs in the Law Division against the City, docket number ESX-L-12065-02, seeking the same relief. On January 2, 2003, Smith also filed a separate verified complaint in the Law Division against the City, docket number ESX-L-0110-03, seeking reimbursement of counsel fees. The City filed an answer and a counterclaim, contended that the claims asserted by plaintiffs were fraudulent and frivolous, and sought an award for counsel fees and costs. These complaints were consolidated by order entered in the Law Division on April 4, 2003.
The claim by plaintiff Harper was dismissed prior to trial for failure to comply with discovery. At a pre-trial conference held on November 8, 2004, the trial judge denied the City's request for a trial by jury. The matter was tried non-jury in the Law Division between November 9, 2004, and November 29, 2004. The three issues presented were: (1) whether the actions by the officers that resulted in the criminal proceedings against them arose out of and were "directly related to the lawful exercise of police powers in the furtherance of [their] official duties," N.J.S.A. 40A:14-155; (2) whether the officers were entitled to reimbursement of counsel fees; and (3) whether the legal fees sought were reasonable. The plaintiff's unopposed motion to dismiss the City's counterclaim was granted.
The evidence adduced at trial, if credited, disclosed that at approximately 9:00 p.m. on June 14, 1999, Sergeant Anthony Caruso was sitting at the front desk of the North Ward police precinct at 1 Lincoln Avenue in Newark, when Antonia Gomez entered the precinct, approached Caruso, and reported that a young boy was being sexually molested by a man just around the corner from the precinct.
Gomez testified at trial that she had been walking to meet her brother Edwin Martinez at the North District police precinct, when she saw a man, later identified as Emmanuel Aldea, in the bushes molesting a young boy, across the street from the Boys' Club at Lincoln and Arlington Avenues, which was just around the corner from the police precinct. Gomez immediately went to the police precinct where she reported the matter to Caruso. Caruso directed police officers to accompany Gomez outside to investigate, and Gomez pointed out Aldea, who was still with the child near the bushes.
Gomez stated that after she saw the officers arrest Aldea, she returned to the police precinct, and saw the police officers place him in a holding cell. Gomez testified that while sitting in the precinct, at one point she heard Gonzalez-Cardona say the words "fuck him up." Thereafter, she heard coming from the area of the holding cell "yelling and screaming like somebody was being hurt or something like that." Gomez also testified that the police officers "were laughing going back and forth to the holding cell laughing, like carrying a joke, like a big joke, like laughing about it."
Officer Michael W. Clegg testified he was near the front desk when Gomez reported the incident, and was dispatched by Caruso to investigate the complaint. Clegg went outside, entered his patrol vehicle and drove to the location described by Gomez, where he saw Aldea and a boy emerging from the bushes. After speaking with the boy, Clegg determined that Aldea had been molesting him. Clegg then placed Aldea against the hood of his police car, frisked and handcuffed him, and placed him inside his police vehicle.
Officers Smith, Venacio and Gialanella arrived at the scene during Clegg's investigation and assisted by transporting the child to the police precinct. Clegg presented Aldea to Caruso. Clegg testified that Caruso then brought Aldea back to the kitchen area of the precinct, followed by Clegg, Smith, Venacio and Gialanella. Clegg testified that in the kitchen area,
[a]t that particular time, Sergeant Caruso was yelling at [Aldea] and he had him by the chest up against the door joist. And he was pointing [his] finger, [stating] where did this kid come from, what [were] you doing with this kid. At that particular time he slapped [Aldea] once and then came back again and slapped him a second time.
Clegg then grabbed Aldea by his shirt, "pulled him away, and dragged him to the back towards the prison holding area." As he was bringing Aldea to the holding area, Clegg stated that someone reached over his left shoulder and slapped Aldea in the back of the head; Clegg was unable to identify who had struck Aldea. Clegg then took Aldea to the property desk near the holding area and turned him over to Officer Wendell Harper for processing.
Clegg testified that he and Officer Marisol Gonzalez-Cardona then brought the child victim upstairs in the precinct to be interviewed and to complete Aldea's arrest report. Later, Clegg went back downstairs with Officer Turner to take a photograph of Aldea. Clegg stated it was at that point that he noticed that Aldea's shirt was ripped and bloody, his jaw was swollen, and Aldea's nose was crooked, like it could have been broken, whereupon he and Turner summoned Lieutenant Tassey to come back to the holding cell to view Aldea's condition. According to Clegg, at Tassey's direction, Clegg and Turner transported Aldea to the hospital for examination and treatment.
On cross-examination, Clegg admitted that when he was initially interviewed by personnel from Internal Affairs concerning the incident, he had lied and did not tell the investigator that Caruso had slapped Aldea. Clegg also stated that because of the Aldea incident he was disciplined and suspended for over two years, obtaining his job back after he agreed to testify that he had witnessed Caruso slap Aldea.
Gialanella testified that when he, Smith and Venacio arrived at the scene of Clegg's investigation, he saw the young boy, who was still in the bushes on the ground with his shoes off. Gialanella stated that the boy "looked all disheveled[,]" and his pants were halfway down. Gialanella stated that Clegg had already arrested Aldea, and the victim and Aldea were then transported to the precinct.
Gialanella asserted that at no time did he see any police officers strike or do anything physically to Aldea. He stated that following the Internal Affairs investigation, he was charged criminally and administrative disciplinary charges were also filed against him.
Gialanella testified that after he was charged criminally, legal counsel was provided to him through the Fraternal Order of Police (FOP), his police union. Gialanella stated he was initially represented by attorney Anthony Fusco, who was provided by the FOP. Shortly before the grand jury proceedings, Fusco was unable to continue to represent him because of a conflict, so attorney Neil Duffy agreed to represent him through an agreement with the FOP.
Gialanella testified that Duffy represented him from the time he was indicted until the charges against him were dismissed. Gialanella explained that during that period, Duffy made several court appearances, and he would meet with Duffy "approximately two to three times a week, different preparation. Some . . . meetings would last ten minutes; others would last two, three, four hours." Gialanella stated he also often spoke to Duffy on the telephone concerning his case. Other than monies that were taken from his salary each pay period as FOP union dues, some of which were applied toward the FOP legal defense fund, Gialanella did not directly pay for the legal services provided to him. Gialanella testified that Duffy would send his legal bills for payment to the FOP.
Plaintiff Silas Smith testified that on the evening of June 14, 1999, he was working as a patrol officer with Gialanella and Venacio inside the North Ward precinct, when they were directed by Sergeant Caruso to go outside and assist Officer Clegg. He stated that by the time they arrived at the scene, Clegg had already arrested Aldea and had placed him in his patrol vehicle. Smith explained that he, Gialanella and Venacio escorted the child back to the precinct. He stated that Officer Marisol Gonzalez-Cardona then came over and assisted in translating for the child, who only spoke Spanish.
Smith stated the only time he saw Aldea was when Clegg was arresting him, when Clegg brought him into the precinct, and when Aldea was being placed into the holding cell for processing. Smith denied striking or verbally confronting Aldea, also testifying that he did not see anyone else strike or verbally abuse Aldea.
After he was advised by officers from Internal Affairs that he was being criminally charged, Smith contacted the FOP and was initially represented by attorney Fusco. Smith stated that, following the indictment, he was represented by attorney Steven F. Wukovits of the law firm of Pisano, Triarsi & Betancourt. Smith produced an "Agreement To Provide Legal Services" executed by him and Wukovits on January 13, 2000, that provides for a minimum legal fee of $7,500, with legal services to be charged by Wukovits at the rate of $250 per hour. Smith then paid Wukovits a retainer of $7,500. The agreement also provided that "[t]he law firm will reimburse you if any sums are paid to the firm under the FOP plan[,]" and when the FOP paid Wukovits $7,500, the law firm gave him back the $7,500.
Smith stated that during the time period when he was represented by Wukovits, he met with him "hundreds of hours," they frequently talked on the telephone about his case, and Wukovits made several court appearances on his behalf. Smith also identified a copy of the bill for legal services he received from Wukovits, covering the period from December 29, 1999, to August 31, 2001, reflecting 303 hours for legal services at $250 per hour, for a total of $75,750.
Smith stated that when the criminal charges were filed against him, he was initially suspended, and then terminated by the City, but was subsequently reinstated.
After this testimony was taken, the City moved for partial summary judgment, contending that the criminal charges contained in counts one, two and three of the indictment alleging aggravated assault and official misconduct were not covered by N.J.S.A. 40A:14-155, because they involved allegations that the officers failed to perform duties that were required of police officers. See Sparkman v. City of Atlantic City, 237 N.J. Super. 623, 629 (App. Div.) (stating that a charged officer "is not entitled to counsel fees where the proceedings arise as a result of his failure to perform his official duties"), certif. denied, 121 N.J. 660 (1990). The City also argued that the aggravated assault charges were not covered by the statute because none of the officers had contended that they had been using force in the performance of their duties to arrest a perpetrator or to protect someone; rather, they had denied that the assaults had occurred. The trial judge denied the motion as premature.
Plaintiff Anthony Caruso testified that on June 14, 1999, he was working at the North District precinct on the 1:30 p.m. to 9:30 p.m. shift, as the acting desk Lieutenant. He stated that Gomez came into the precinct at approximately 9:00 p.m., and reported that a young boy was being molested near the precinct. Caruso testified that Officer Clegg was near the desk while Gomez was reporting the incident and, upon hearing her report, Clegg went outside to investigate. Shortly thereafter, Officers Venacio, Gialanella and Smith also went outside; Caruso remained at the front desk.
Caruso testified that Clegg returned with a prisoner, Aldea, who was being charged with sexual assault. After explaining the charges to Caruso, Clegg brought Aldea toward the holding-cell area, accompanied by Officer Harper, who was the officer in charge of inventorying and taking charge of the prisoner's property. Caruso claimed that he had no further contact with Aldea that evening, and left the precinct at approximately 9:35 p.m., at the completion of his tour of duty.
Caruso testified that at no time did he become aware of anyone mistreating or harming Aldea.
Caruso also stated that shortly after Clegg brought Aldea in for processing, Officers Gialanella, Venacio and Smith arrived at the precinct with the victim, and he arranged for Officer Marisol Gonzalez-Cardona to translate for the child. Caruso explained he also arranged for the victim's mother to be contacted, and that she later came to the precinct. Caruso stated he then notified the sexual response unit to initiate an investigation of the incident. Caruso testified he called for an ambulance to transport the child to the hospital for examination; however, the ambulance did not arrive until after Caruso had left the precinct following the end of his shift. Caruso stated that after he left, Lieutenant Tassey assumed the precinct's front desk responsibilities.
Following criminal charges being brought against him, Caruso stated he retained attorney Michael Critchley, who agreed to charge him a flat fee of $25,000 if the matter did not go to trial, and another $25,000 if a trial was required. Critchley represented Caruso throughout the matter, including at trial. Caruso stated that he had paid Critchley $35,000 from his own funds, that the FOP defense fund had paid Critchley $15,000, and there was an outstanding balance due Critchley of $1,145.22 for costs.
On cross-examination, Caruso acknowledged that administrative disciplinary charges had also been brought against him relating to the Aldea incident. He testified that he had pled guilty to violating certain rules and regulations of the Newark Police Department failing to document an aggravated assault committed upon Aldea by other prisoners in the holding cell and failing to ensure that charges were preferred against those prisoners; failing to report an aggravated assault committed upon Aldea by the prisoners; and failing to make a proper entry in the prisoner log book, the desk blotter, and falsely reporting in an administrative report that nothing unusual had occurred in the North District precinct during his tour of duty on June 14, 1999. The remaining disciplinary charges against Caruso were dismissed. Caruso stated he was disciplined by a 337-day suspension, of which 225 days were with pay.
Plaintiff Marisol Gonzalez-Cardona testified that on June 14, 1999, she was working in the North District precinct during the 3:00 p.m. to 11:00 p.m. shift. She explained that when the victim was brought into the precinct she was given the assignment by Caruso of speaking with the child and translating. Gonzalez-Cardona stated she obtained identification information from the child, and telephoned his mother. Shortly thereafter, both parents arrived, and they went upstairs to the sexual abuse unit to complete the investigation; Clegg accompanied them.
Gonzalez-Cardona stated that prior to going upstairs she had observed Aldea while he was in the holding cell and he had no cuts, bruises or other injuries at that time. She testified that at one point, Clegg was directed to go downstairs to take photographs of Aldea, and when he returned he reported that Aldea had injuries on his face. Gonzalez-Cardona explained that, upon viewing the photographs, "[h]is nose was crooked and he had like bumps on his face." Gonzalez-Cardona testified that Lieutenant Tassey came upstairs, appeared angry, and directed her and Clegg to transport Aldea to University Hospital for treatment.
Gonzalez-Cardona denied making the statement "fuck him up" with reference to Aldea, stating she could not have made that statement because she was with the child the entire time. After criminal charges were filed against her, Gonzalez-Cardona testified she consulted with and retained attorney Edward J. Bilinkas, signing a retainer agreement dated January 9, 2000. Pursuant to that agreement, Bilinkas agreed to represent her with a minimum fee of $7,500 for pre-trial work and $15,000 should the matter go to trial, based upon an hourly rate of $350 for court time and $250 for office time. Gonzalez-Cardona stated she paid him the sum of $2,500 as a retainer, and he represented her throughout the proceedings leading to the dismissal of all charges against her. She testified that she later received a check from Bilinkas in the amount $2,500, which had been paid by the FOP defense fund.
Upon dismissal of the criminal charges, Bilinkas submitted a bill to Gonzalez-Cardona dated May 13, 2002, in the amount of $74,950. Gonzalez-Cardona stated that the only amount she paid Bilinkas from her own funds was an unspecified sum under $1,000 "for an investigator and the filing fee or something like that."
Gonzalez-Cardona acknowledged that administrative disciplinary charges were also filed against her, she was suspended, and that she had pled guilty to two of the eight charges, resulting in a 141-day suspension. She received back pay for 340 work days, and was reinstated effective October 17, 2001. The disciplinary charges to which she pled guilty were failure to document an assault that had been committed upon Aldea by the prisoners and to insure that criminal charges were brought against the prisoners, and failure to seek medical attention for Aldea. Gonzalez-Cardona stated she pled guilty to those charges, rather than submit to a hearing, "[b]ecause I couldn't wait, I need a job, I had children to support, I had bills to pay, so that's why I resolved them the way that they were agreed upon."
Plaintiff Anthony Venacio testified that he was on duty, assigned to the North District precinct, on June 14, 1999, working the 7:00 p.m. to 3:00 a.m. shift. He explained that he, Gialanella and Smith were dispatched to follow Clegg and investigate Gomez's allegations. When they arrived at the scene, Clegg already had Aldea in custody, so they assisted Clegg by securing the child and transporting him to the precinct.
Venacio denied striking Aldea or observing anyone else strike or abuse him. After criminal charges were filed against him, Venacio stated he was initially represented by attorney Fusco. However, he was not satisfied with Fusco, so he retained attorney Joseph D. Rotella to represent him. Venacio stated he paid Rotella a $5,000 retainer, which was later returned to him when the FOP defense fund paid that amount to Rotella. Venacio signed a retainer agreement with Rotella dated January 3, 2000, under which legal services were to be billed at the rate of $250 per hour. Following dismissal of the criminal charges against Venacio, Rotella issued a bill to him dated October 29, 2001, in the amount of $85,340.
Venacio acknowledged that administrative disciplinary charges had also been filed against him, and that he had been suspended. Venacio stated that the disciplinary charges were dismissed pursuant to an agreement under which he had agreed to give up thirty-five percent of his back-pay claim. The trial judge noted that the settlement documents between the City and Venacio stated the parties agreed "that nothing in the stipulated settlement constitutes an admission[,]" and precluded the City from arguing that Venacio's settlement constituted an inference of an admission of some wrongdoing.
Maria Concepion, the victim's mother, testified that she was called to the police station on the evening of June 14, 1999, and was told that there was an allegation that her son had been sexually molested. After seeing her son and speaking with the police officers, she asked to see the perpetrator, Aldea. Concepion stated she was brought back to the cell where Aldea was being held, and saw that "[i]t seemed like . . . something had struck his head because I noticed he had a piece of cloth or . . . a shirt or something and he was holding it up to his head, but I didn't see any injuries around the face. I saw some blood, but I didn't see any visible injuries around the face."
At the conclusion of the testimony, counsel for the City offered into evidence the entire investigation file of Internal Affairs, stating this "contains the statements of everybody who was interviewed in connection with this matter." Counsel for the City further stated:
Obviously, those statements are hearsay and cannot be considered by the court for the truth of what they contain and I understand that and I wouldn't expect the court to consider them for that purpose. But it occurred to me that what Your Honor is called upon to decide in this case is whether the charges arose out of the lawful exercise of these powers in the furtherance of the official duties of these officers and if that's the issue and the charges arose out of this investigation, or at least the initial criminal complaints that were issued by . . . Officer Rodriguez, . . . that they would be an aid to Your Honor in determining whether the charges arose out of the lawful exercise of police powers and [in] furtherance of their [official] duties.
Counsel for plaintiffs objected to admission of the Internal Affairs investigation as inadmissible hearsay.
The trial judge denied the City's application, finding that the investigation constituted hearsay, and its contents would not be subject to cross-examination. The judge acknowledged that the investigation could be admissible not for its truth but to demonstrate that an Internal Affairs investigation had been conducted. However, the judge found that the City had specifically sought admission of the Internal Affairs investigation on the issue of whether the charges arose "out of and [were] directly related to the lawful exercise of police powers in the furtherance of [their] police duties[,]" N.J.S.A. 40A:14-155, and he could not understand how he could consider the investigation for that purpose, yet not for the truth of what was contained therein.
The trial court then received summations from counsel on the issue of whether the criminal proceedings brought against the plaintiffs were directly related to the lawful exercise of police powers and in furtherance of their official duties.
The judge acknowledged that a police officer is entitled to counsel fee reimbursement only when he or she is charged with an infraction arising from the lawful exercise of police powers in the furtherance of his or her official duties, and that the 1986 amendment to N.J.S.A. 40A:14-155 was intended to preclude reimbursement for defense of charges where the officer, "even though occurring at a time when the officer was coincidentally performing official duties, was not occasioned by mere careless or overzealous performance of those duties . . . but rather by an ulterior, illegal goal of the officer, which actually constituted perversion of the job." The judge also noted that under the 1986 amendment, an acquittal of criminal charges did not automatically entitle the officers to reimbursement of legal fees expended or incurred.
After reviewing the conduct of each officer on the evening of June 14, 1999 in detail, the judge concluded that the charges against the officers arose from their performance of their regular law enforcement duties, without an ulterior motive, and that they were thereby entitled to reimbursement of their legal fees pursuant to the authority contained in N.J.S.A. 40A:14-155.
The trial judge questioned the credibility of Officer Clegg, based on Clegg's belated accusation against Caruso, stating "that certainly calls into question . . . whether he's telling the truth, or was he just fingering one other officer . . . to take the heat off himself, so he . . . would get immunity? . . . that's what the court can infer." The trial judge stated that although he questioned Clegg's credibility, even if he were to accord weight to Clegg's testimony, he would still conclude that the charges against the officers arose out of and were directly related to the lawful exercise of police powers in the furtherance of their official duties. The judge reached that conclusion because he could find no ulterior motive behind the officers' conduct. Rather, he concluded the conduct was, even accepting Clegg's testimony, the result of carelessness or overzealousness by the officers. The judge explained, as follows:
I think what . . . the case law has said and what the intent of the statute is, that unless there's an ulterior motive or some reason for beating up the person that's personal and not simply overzealousness in being police officers and being charged with arresting people, keeping them in custody, handcuffing them, keeping them in their cell, . . . then I think it is covered by the statute.
The judge also noted that Aldea had been indicted for sexual assault, had given three sworn statements to Internal Affairs during its investigation, had testified before the grand jury and at the criminal trial of Caruso and Harper, and had contradicted himself in each version.
The judge rejected the contention by the City that an officer is not entitled to reimbursement of legal fees pursuant to N.J.S.A. 40A:14-155 when that officer is criminally charged with failing to perform a duty he or she is legally required to perform, but is then acquitted, while at the same time an officer charged and acquitted of the use of excessive force may recover under the statute.
Having concluded that plaintiffs were eligible for reimbursement of legal fees by application of the provisions of N.J.S.A. 40A:14-155, the trial judge then turned his attention to the issue of the reasonableness of the counsel fees requested by plaintiffs. The City contended that since the statute uses the word "reimburse," in order for plaintiffs to be reimbursed, they must establish that they actually paid counsel fees or had agreed to be personally obligated to pay the counsel fees. The City noted that the only plaintiff who actually funded the criminal defense costs with his own money was Caruso, who had paid $35,000, the other $15,000 being paid by the FOP. The City asserted that, assuming $35,000 was reasonable, he would be entitled to reimbursement in that amount.
The City stated that Gialanella had not testified concerning the amount of his counsel fees, and it was clear that he paid nothing and owed nothing, although Gialanella had stated that attorney Duffy had agreed to work at the FOP's rate. The City also contended that Smith and Gonzalez-Cardona had both testified that it had been their understanding they did not have to pay any attorneys' fees. With respect to Venacio, he testified he had a personal obligation for the counsel fees incurred, but the City noted there had been no collection efforts with respect to those counsel fees alleged.
The City asserted it was significant that when Venacio, Gonzalez-Cardona and Smith paid initial retainer amounts, those amounts were returned to them when the FOP paid monies to their counsel. The City argued that "[w]hen a statute speaks in terms of reimbursement, it focuses on costs already incurred and contemplated governmental liability for expenditures, reasonable in amount, for services rendered by counsel of the employee's own choice."
The City also stated that at the time criminal charges were filed, when counsel for Venacio, Gonzalez-Cardona and Smith had sought authorization for their representation, City Counsel had replied by letter, stating the City could not make that determination but informed them that the City pays $75 per hour for such work. Accordingly, the City took the position that counsel fees should be limited to that rate.
Plaintiffs argued that their counsel were entitled to payment of a reasonable counsel fee based on the fee agreements they had entered into.
The trial judge rejected the City's contentions, finding that the statute requires reimbursement of reasonable counsel fees rendered by counsel of the officers' choice. The judge noted that when the officers had requested representation by the City in defense of their criminal prosecution, the City had made a choice by not providing them such a defense, thereby freeing plaintiffs to make their personal choice of legal representation. The judge also concluded that was a legal issue, and rejected the City's contention that testimony was required to resolve that issue.
The parties agreed to submit expert reports regarding the reasonableness of fees into evidence without the necessity of testimony. The parties also stipulated that $50,000 is a reasonable counsel fee for Caruso, and that $7,500 was a reasonable counsel fee for Gialanella. Based on that stipulation, the court entered judgment in favor of Caruso and Gialanella in those amounts.
Prior to summations, the City objected to the court's reliance on the statements of the prosecutor contained in its dismissal request, contending the reasons given by the prosecutor constituted hearsay. The City objected to the judge's reliance on those statements as a basis for its decision on the issue of whether the statute was applicable to these circumstances. The trial judge noted that the objection was not timely, but further stated that "if such a timely objection had been made, my . . . conclusion still would have been the same, based on the testimony that was presented in this trial[.]"
The judge then heard the parties' summation on the issue of reasonableness of the legal fees sought. Counsel for the City argued that attorney Duffy had agreed to represent Gialanella for the FOP-approved counsel fees of $7,500 if there was no trial, and another $7,500 if there was a trial. The City also noted that attorney Critchley, an experienced criminal trial attorney, had tried the case in his representation of Caruso for the total sum of $50,000. The City contended these facts were relevant on the issue of reasonableness as to the amounts sought by counsel for Smith ($75,750), by counsel for Venacio ($85,340), and by counsel for Gonzalez-Cardona ($74,950), none of whom went to trial.
The City also again argued that one of the expert reports was a net opinion, and did not reflect a review of the billing records of counsel for Gonzalez-Cardona. The City further contended that the record reflected that neither Smith, Venacio, nor Gonzalez-Cardona "actually indebted themselves to these attorneys," which it contended was relevant on the issue of reasonableness. The City also contended that counsel for these three plaintiffs had been willing to do all of the work in their defense for the sum of $15,000, another factor to consider on the issue of reasonableness. Finally, the City questioned the quantity of time contained in the bills rendered, noting that it appeared that those bills reflected that the review by counsel of each page of discovery was mechanistically charged at the rate of one-quarter hour of time. Counsel for plaintiffs objected to the City's final argument, contending it was "unfair to make an issue in summation of something that wasn't made an issue during the proceeding[,]" noting that "[t]he reasonableness of the hours were never contested, nor was the quality of the service contested and there's nothing in the documentation from which it's fair to infer that either the hours were excessive or the services were less than excellent."
After considering the summations, the trial judge rendered his decision with respect to the reasonableness of the award of counsel fees sought by plaintiffs Venacio, Smith, and Gonzalez-Cardona. Relying on Township of Edison v. Mezzacca, 147 N.J. Super. 9 (App. Div. 1977), the judge disagreed with the contention in Pigeon's report attempting to limit the attorney fee request to the $75 per hour amount paid by the City of Newark, finding it would have been inappropriate to require plaintiffs to choose from an attorney list compiled by the City because it was the municipality that instituted the criminal complaints against them. The judge concluded that N.J.S.A. 40A:14-155 leaves the selection of counsel to the police officer, subject to the reasonableness standard. In addressing the "reasonableness" issue, the judge stated:
Nobody has suggested that the time spent was not really spent or that the rate charged, the $250 an hour, is not a reasonable rate. I accept Mr. Norton, plus in the court's own discretion or knowledge, that in northern New Jersey, such fees charged by criminal defense attorneys . . . are not outside a line of what's charged and . . . the 130 hours spent preparing or dealing with motions and . . . exchanges of discovery . . . on a multi-count indictment with multiple defendants . . . is not unreasonable.
* * * *
Therefore, I've reviewed the three bills submitted and the hourly rates charged. I find that they're reasonable on the proofs presented and I will award, as to Silas Smith, $75,750 as reasonable attorneys' fees, to Marisol Gonzalez-Cardona, $74,950 and as to Anthony Venacio, $85,340.
A judgment memorializing the court's rulings and the parties' stipulation was entered on December 17, 2004.
On appeal, the City presents the following arguments for our consideration:
POINT I
THE CONDUCT CHARGED - UNPROVOKED ASSAULTS ON A PRISONER IN POLICE CUSTODY AND FAILURE TO STOP OR REPORT ASSAULTS ON A PRISONER IN CUSTODY - FALLS OUTSIDE THE PROTECTION OF N.J.S.A. 40A:14-155.
POINT II
THE COURT BELOW ERRED IN DECLINING TO CONSIDER THE INTERNAL AFFAIRS INVESTIGATION ON THE GROUNDS THAT IT WAS HEARSAY.
POINT III
REIMBURSEMENT SHOULD HAVE BEEN LIMITED TO REASONABLE FEES AND EXPENSES INCURRED BY ACTUAL PAYMENT OR BONA FIDE OBLIGATION.
POINT IV
THE TRIAL COURT RELIED ON INADMISSIBLE HEARSAY AND SPECULATION AS A BASIS FOR DISREGARDING EVIDENCE FAVORABLE TO THE CITY ON THE ISSUE OF REASONABLENESS OF THE FEES.
I.
We begin our inquiry with an analysis of N.J.S.A. 40A:14-155, which provides:
Whenever a member or officer of a municipal police department or force is a defendant in any action or legal proceeding arising out of and directly related to the lawful exercise of police powers in the furtherance of his official duties, the governing body of the municipality shall provide said member or officer with necessary means for the defense of such action or proceeding, but not for his defense in a disciplinary proceeding instituted against him by the municipality or in criminal proceeding instituted as a result of a complaint on behalf of the municipality. If any such disciplinary or criminal proceeding instituted by or on complaint of the municipality shall be dismissed or finally determined in favor of the member or officer, he shall be reimbursed for the expense of his defense.
[Emphasis added.]
Since its amendment in 1986, we have been called upon often to consider its application. A detailed review of those decisions is instructive in analyzing the issues presented.
In Sparkman, supra, criminal and disciplinary charges were filed against a police officer arising from his attendance at a party at the home of another police officer, at which it was alleged that cocaine and marijuana were used and possessed, and that the officer had failed to perform his duty as a police officer by arresting those using and possessing the illegal drugs. 237 N.J. Super. at 624-25. The officer was criminally charged with conspiracy to facilitate commission of the crime of official misconduct, and official misconduct; disciplinary charges were also filed. Id. at 624. The indictment and disciplinary charges were dismissed, and the officer sought reimbursement of his legal fees pursuant to N.J.S.A. 40A:14-155. Id. at 625. We stated that
under the statute as amended, it is perfectly plain that a police officer is entitled to counsel or reimbursement only where he is charged with an infraction arising from the lawful exercise of police powers in the furtherance of his official duties. A police officer is not entitled to counsel fees where the proceedings arise as a result of his failure to perform his official duties.
[Id. at 629 (emphasis added).]
We noted that the 1986 amendment to N.J.S.A. 40A:14-155 was a reaction to decisions of our Supreme Court which interpreted the language of the statute literally and afforded a police officer reimbursement of legal fees if he was acquitted of charges brought against him merely because of his "status" as a police officer. Id. at 626-27 (citing Moya v. New Brunswick, 90 N.J. 491 (1982); Valerius v. Newark, 84 N.J. 591 (1980)). We referenced the Senate County and Municipal Government Committee Statement accompanying the 1986 amendment stating that the new bill "would eliminate the coverage of this section for charges arising from acts outside the scope of police duties, but occurring in the course of the performance of those duties, and for 'status charges.'" Id. at 628.
Applying this legislative intent, we concluded that the criminal and disciplinary charges filed against the police officer in Sparkman, supra, did not arise out of, nor were they directly related to, the lawful exercise of any police power by the officer in furtherance of his official police duties, since the officer was at a private party where illegal drugs were allegedly used and possessed. 237 N.J. Super. at 629. We stated that reimbursement of counsel fees in these circumstances "would subvert the legislative intent by encouraging inaction on the part of police officers who are duty bound to act in certain circumstances without fear of the economic consequences of defending any criminal or disciplinary charges that may be lodged against them." Ibid.
In Bruno v. City of Atlantic City, 239 N.J. Super. 469 (App. Div.), certif. denied, 122 N.J. 165 (1990), two police officers were charged with criminal offenses relating to the same private party involved in Sparkman. Id. at 472-73. Officer Bechard was charged with official misconduct by failing to arrest Officer Bruno, who he allegedly knew was in possession of cocaine; conspiracy to commit official misconduct by attending a party at which cocaine and marijuana were used; and official misconduct by failing to arrest persons attending the party whom he knew to be using illegal drugs. Id. at 471. Officer Bruno was charged with theft, by allegedly unlawfully removing cocaine from an impounded vehicle that he was assigned to guard; unauthorized exercise of his official functions by taking the property of another; possession of cocaine; distribution of cocaine; official misconduct by permitting his premises to be used for distribution, possession and use of illegal drugs; and conspiracy to facilitate the commission of the crime of official misconduct. Id. at 472. Bruno and Bechard were acquitted on all counts, and filed a complaint seeking reimbursement of their counsel fees pursuant to N.J.S.A. 40A:14-155. Id. at 470.
Initially, we discussed the statement in Sparkman, 237 N.J. Super. at 629, that "[a] police officer is not entitled to counsel fees where the proceedings arise as a result of his failure to perform his official duties." (Emphasis added).
We concluded that
this broad pronouncement in Sparkman constitutes dicta to the extent that it might be applied to a failure to perform where, unlike the situation here, an officer is on duty or otherwise engaged in "the lawful exercise of police powers in the furtherance of his official duties." [Sparkman, 237 N.J. Super. at 629]. We leave for another day the question of whether defense of an allegation of failure to perform certain specific police duties, while actually performing general on-duty activities, is covered by the amended statute.
[Bruno, supra, 239 N.J. Super. at 472 (emphasis added).]
Although acknowledging that the charges against Bruno that related to theft and misconduct occurred while he was on duty wearing his uniform, assigned to guard the car of the alleged narcotics dealer, we concluded that "it does not necessarily follow from this conclusion that reimbursement is therefore mandated." Id. at 473. We noted that the operative language of the statute was "'action or legal proceeding arising out of and directly related to the lawful exercise of police powers and the furtherance of his official duties[,]'" and concluded that "[t]he acts charged against Bruno, although directly related to the exercise of his official duties, cannot be said to be related to the lawful exercise of police powers and the furtherance of his official duties. Thus, the criminal activities charged were outside the scope of his official duties." Ibid. (emphasis added).
We concluded that the 1986 amendment to N.J.S.A. 40A:14-155
intended to take away reimbursement for defense of charges where the acts of the officer, even though occurring at a time when the officer was coincidentally performing official duties, were not occasioned by mere careless or overzealous performance of those duties, but rather by an ulterior goal of the officer which actually constituted a perversion of his job.
[Ibid.]
We found that "[t]here is nothing about the alleged theft of illegal drugs which would suggest that it constituted the lawful exercise of police powers in the furtherance of official duties." Id. at 474.
Thus, at that point, there was an apparent disagreement between the Sparkman and Bruno panels on the issue of whether a police officer could be entitled to an award of counsel fees pursuant to N.J.S.A. 40A:14-155 where the criminal proceedings arose from an alleged failure to perform his or her official duties. See Sparkman, supra, 237 N.J. Super. at 629; Bruno, supra, 239 N.J. Super. at 472. Moreover, Bruno appeared to conclude that when an officer is charged with a criminal offense based on conduct occurring while he was also performing official duties, reimbursement of legal fees upon dismissal of those charges cannot be obtained where the conduct giving rise to the charges was occasioned by an "ulterior goal of the officer which actually constituted a perversion of his job[,]" but inferentially suggested that reimbursement could be achieved where the officer's conduct was "occasioned by mere careless or overzealous performance of those duties[.]" 239 N.J. Super. at 473.
In Gordon v. Borough of Middlesex, 268 N.J. Super. 177 (App. Div. 1993), a police officer was indicted for official misconduct, obstruction of the administration of law, and wrongful access to a computer system. He was acquitted of all charges after a jury trial. Id. at 179. The criminal charges against the officer stemmed from allegations that he had accessed police computer information to obtain the identity of witnesses concerning an internal investigation that was being conducted of a fellow officer, and then provided that information to the officer under investigation. Id. at 180. The officer denied knowing there was an ongoing investigation, denied revealing the information to the officer under investigation, and stated that he had accessed the computer system as part of his official duties as desk sergeant to obtain the names of all persons who enter the police station. Ibid.
In reversing the Law Division's grant of summary judgment in favor of the officer on the issue of reimbursement of legal fees, we stated in pertinent part:
The motion judge failed to recognize that although it may properly have been part of [the officer's] duties to obtain such information, a factual issue, nonetheless, existed under the statute as to whether [the officer] was acting to carry out that duty or was merely using the duty as a pretext for the surreptitious purpose of obtaining information to aid his fellow patrolman. Without such a finding, there can be no valid determination of the crucial issue of whether the charges were ones "arising out of and directly related to the lawful exercise of police powers in the furtherance of his official duties." N.J.S.A. 40A:14-155 (emphasis added).
The trial judge also incorrectly ruled that the issue of providing the names to another individual should not be relitigated because of [the officer's] acquittal on the criminal charges. This was also a question of fact to be resolved in determining the same statutory issue. In the criminal proceeding, the state was required to prove [the officer's] misconduct beyond a reasonable doubt. It apparently failed in this regard. That does not necessarily mean that plaintiffs can sustain their burden of proving by a preponderance of the evidence that reimbursement is required under the statute.
* * * *
Here, [the officer] was charged with unauthorized access to the computer system at the police department and obtaining data for his own personal use. He was, however, on duty at the time of the alleged acts and serving as desk sergeant. He had legal access to the computer system that he was accused of obtaining information from for his personal use. Although it may be that obtaining the names of the witnesses was within [the officer's] duty, it must be determined factually whether when he obtained the names through the computer he was doing it for that lawful purpose or for his own purpose.
[The officer] was also charged with disclosing confidential police information to the suspect in the investigation. Therefore, there must also be a factual determination of this question. Otherwise, it cannot be fairly determined whether he was acting in furtherance of his legal duties. It may also be relevant to a determination of whether he was using the computer for his own purposes. Even where the activities are more than mere "status" charges, entitlement to reimbursement for legal fees in not automatic. It is necessary to demonstrate that the legal proceedings arose out of and were directly related to the officer's lawful exercise of police powers in furtherance of his official duties. N.J.S.A. 40A:14-155.
[Id. at 181-84 (emphasis added).]
In Gordon we cited with approval to the holding in Bruno, supra, 239 N.J. Super. at 473, that, although acts charged against a police officer may be directly related to the exercise of that officer's official duties, there is no reimbursement where those acts "were outside the scope of his official duties. Gordon, supra, 268 N.J. Super. at 185 (emphasis added). We explained that if Officer Gordon "accessed the computer system for his own personal use, that was neither a lawful exercise of his police powers nor in furtherance of his duties." Ibid. We explained further:
It cannot be said that his actions were directly related to the lawful exercise of police powers as part of his official duties, merely because he was trained on the use of the computer system and was authorized to use it for official duties, if indeed he had the ulterior illegal goal of obtaining information for his own personal use. That would constitute a perversion of his duty and bar reimbursement, as would an unlawful revealing of the information, even if lawfully obtained.
[Ibid. (citing Bruno, supra, 239 N.J. Super. at 473).]
We also addressed the argument interposed by the officer that if legal fees were not recognized under circumstances where the officer had been absolved of any criminal wrongdoing N.J.S.A. 40A:14-155 would be rendered meaningless, stating:
We recognize that in every situation in which this statute may be applicable, an allegation of illegal conduct on the part of the officer will be present. N.J.S.A. 40A:14-155. Nonetheless, under the present statute, acquittal alone is not sufficient to require reimbursement. Therefore, a plaintiff must prove that he or she was engaged in activity "directly related to the lawful exercise of police powers in the furtherance of his official duties," when the conduct giving rise to the charges took place. N.J.S.A. 40A:14-155; Bruno, supra, 239 N.J. Super. at 473.
Unless the charges are proven to be "directly related to the lawful exercise of police powers in the furtherance of his official duties," plaintiffs are not entitled to reimbursement of Gordon's legal fees. N.J.S.A. 40A:14-155. If Gordon had an ulterior illegal goal when he accessed the computer on this particular occasion which was to obtain the information for his own personal use, he may not recover; nor may he recover if the charges arose from his unlawful revealing of the information to the target of the investigation. We acknowledge that trials will be required in many cases in order to resolve the issue of entitlement. However, the statutory amendment mandates a determination of these issues.
[Id. at 185-86.]
Accordingly, acquittal of the criminal charges, in itself, is insufficient to require reimbursement. Rather, the acquitted officer must establish that he or she was engaged in conduct directly related to the lawful exercise of police powers in the furtherance of his or her official duties. In making that determination, if, in the lawful exercise of police powers in the performance of those official duties, the officer's conduct was not occasioned by mere careless or overzealous performance, but by an ulterior illegal goal that actually constituted a perversion of his or her job, then reimbursement would be precluded. Id. at 184-86; Bruno, supra, 239 N.J. Super. at 473.
In Gabbianelli v. Township of Monroe, 271 N.J. Super. 544, (App. Div.), certif. denied, 137 N.J. 307 (1994), the issue was whether a police officer was entitled to reimbursement of counsel fees where he ultimately prevailed in a disciplinary proceeding instituted by the municipality. Id. 545. We rejected the police officer's contention that he was entitled to reimbursement simply because the proceeding was initiated by the municipality, even though the charged conduct admittedly had not arisen from the lawful exercise of his police powers in furtherance of his official duties. Id. at 546.
The disciplinary charge had been filed against the police officer based on an allegation that while waiting to appear before the grand jury to provide testimony concerning an alleged assault against him by a third party, the officer became impatient, threatened to slap an assistant prosecutor, then left before providing his testimony, resulting in a no bill being returned by the grand jury against that third party. Ibid. The disciplinary charge was ultimately dismissed because it was found to have been filed outside the time limitation prescribed by N.J.S.A. 40A:14-147. Ibid.
The Law Division dismissed the officer's complaint on the basis that his conduct had not been directly related to the lawful exercise of police powers and in furtherance of his official duties. Id. at 546-47. In affirming, we rejected his claim that he was ipso facto entitled to counsel fees when a municipality's disciplinary charges are dismissed and we noted that even where the charged infraction or criminal act occurs while the officer is on duty, counsel fees may only be reimbursed where the infraction or criminal act arises from the lawful exercise of police powers in the furtherance of his official duties. Id. at 547. In concluding that the officer's claim failed to meet that requirement, we stated that
the legislative goal to the 1986 amendment [to N.J.S.A. 40A:14-155] was to deny a means for the defense of an action or reimbursement when the officer's infraction or criminal act is a "perversion" of, rather than in furtherance of his official duties. Bruno, 239 N.J. Super. at 473. That goal is achieved by focusing on the nature of the police officer's conduct rather than who has initiated the proceeding against him.
[Id. at 549 (emphasis added).]
And, in Oches v. Township of Middletown Police Dep't, 155 N.J. 1, 7-8, the Court noted that the plain language of N.J.S.A. 40A:14-155, as amended,
makes clear that counsel fees are not available where the "acts of the officer, even though occurring at a time when the officer was coincidentally performing official duties, were not occasioned by mere careless or overzealous performance of those duties, but rather by an ulterior illegal goal of the officer which actually constituted a perversion of his job." Bruno v. City of Atlantic City, 239 N.J. Super. 469, 473 (App. Div.), certif. denied, 122 N.J. 165 (1990). However, concerning officers exonerated of charges arising out of the lawful exercise of police powers in furtherance of official duties, N.J.S.A. 40A:14-155 by its terms guarantees reimbursement of counsel fees.
In Monek v. Borough of South River, 354 N.J. Super. 442, 445-46 (App. Div. 2002), the police officer was criminally charged with aggravated assault and official misconduct occurring while, on duty, the officer had arrested a man who was drunk and uncooperative. The officer contended that the injuries to the suspect occurred when he hit his head on the cell bars while thrashing about, while the suspect alleged that he had been injured when the officer pushed him up against the cell bars. Id. at 446. The officer was also charged with witness tampering, based on allegations that subsequent to the incident the officer had attempted to induce another officer to testify or inform falsely. Id. at 447. The charges were downgraded to disorderly persons offenses. The officer was acquitted of the disorderly persons charges, and the grand jury failed to indict him on the witness tampering charge. Ibid.
We held that the officer was entitled to reimbursement for defense of the assault charge and official misconduct charges, which had been brought as a result of action taken by the officer while performing his official police duties of arresting a suspect, but concluded that he was not entitled to a defense for the witness tampering charge because it constituted illegal action that he had allegedly taken after he was charged with the assault and official misconduct charges during the "preparation of the police report and testimony before the internal investigator." Id. at 450-51.
We stated that acquittal alone is insufficient to require reimbursement pursuant to N.J.S.A. 40A:14-155, concluding that the officer must establish that he or she was engaged in activity that was directly related to the lawful exercise of police powers in the furtherance of his or her official duties when the conduct giving rise to the charges took place. Id. at 452. See Gordon, supra, 268 N.J. Super. at 185 ("acquittal alone is not sufficient to require reimbursement"); Bruno, supra, 239 N.J. Super. at 473 (reimbursement is not required solely because the alleged criminal act occurs while the officer is on duty).
In Monek, supra, the officer was also charged with ten violations of the police department's rules and regulations. 354 N.J. Super. at 447. The officer was acquitted of six of the disciplinary charges, but found guilty of four "failing to conduct himself in accordance with high ethical standards; knowingly and willfully causing a false police report to be made; issuing an order to a subordinate while knowing such order to be unlawful; and failing to give a truthful statement when being questioned in regard to an internal investigation." Id. at 447-48. We stated that when the officer told his fellow officer to stick to a report when testifying before the internal affairs investigator, he knew he was asking the officer to stick to a story that was not true, which we concluded was not "the lawful exercise of police powers" or "in furtherance of his official duties." Id. at 453. We also concluded that because he had been found guilty of the disciplinary charges, collateral estoppel precluded the officer from seeking legal fees for defense of the witness tampering charge. Id. at 453-54.
More recently, in Aperuta v. Pirrello, 381 N.J. Super. 449 (App. Div. 2005), after reviewing decisions interpreting N.J.S.A. 40A:14-155, Judge Winkelstein, writing for the court, explained the test to be applied in cases where police officers seek reimbursement pursuant to the statute, is as follows:
To determine whether a police officer is entitled to a defense at the municipality's cost under N.J.S.A. 40A:14-155, we first examine whether the legal proceedings were grounded on an affirmative act by the officer, rather than the officer's failure to act. See Bruno[ v. City of Atlantic City, 239 N.J. Super. 469, 472 (App. Div.), certif. denied, 122 N.J. 165 (1990)]; Sparkman[ v. City of Atlantic City, 237 N.J. Super. 623, 629 (App. Div.), certif. denied, 121 N.J. 660 (1990).] Next, if the officer did commit an affirmative act, the question becomes whether the officer acted with an ulterior illegal goal that would have perverted his or her job. See Gordon[ v. Borough of Middlesex, 268 N.J. Super. 177, 185-86 (App. Div. 1993)]; Bruno, supra, 239 N.J. Super. at 473.
[Id. at 458.]
In Aperuta, a Morris Township Police Officer was sued after he told a third party while off-duty and at a party that the plaintiff may have AIDS. Id. at 451.
The plaintiff also named the Township as a defendant, contending that the officer had been acting in the course of his employment when he made the statement. Ibid. The Township declined to provide the officer a defense to the civil action, contending that when the officer made the statement he was off- duty and not "acting in [his] professional capacity within the course of his employment." Ibid.
After the case was settled, the officer moved to compel the Township to pay the $15,000 counsel fee he had incurred in defense of the action, contending he had been entitled to a defense by the Township pursuant to N.J.S.A. 40A:14-155. Ibid.
The underlying circumstances were as follows. In the summer of 1997, the officer and his partner had responded to a police call at plaintiff's home. His partner cautioned the officer to be careful because plaintiff had AIDS. Id. at 451-52. Almost four years later, on April 7, 2001, the defendant officer warned Kurilla a new male acquaintance who he learned had just severed a relationship with plaintiff that she might possibly have AIDS. Id. at 452. The officer contended that he had warned Kurilla because he did not want him to risk getting AIDS. Ibid. Kurilla later told plaintiff concerning the defendant officer's disclosure. Ibid. Plaintiff acknowledged that when the officers had responded to her home in 1997 she feared that she was HIV-positive, but thereafter had learned that she was not. Ibid. The issue presented was whether the civil action filed by the plaintiff arose out of and was directly related to the lawful exercise by the defendant officer of police powers in the furtherance of his official duties. Ibid.; see N.J.S.A. 40A:14-155.
In addressing that issue, we reviewed the legislative history of N.J.S.A. 40A:14-155, stating that the Legislature had acted in 1986 to limit the expansive interpretation given to it by our Supreme Court, and noting:
To effectuate that intent, the words arising out of or incidental to the performance of his duties were replaced with: arising out of and directly related to the lawful exercise of police powers in the furtherance of his official duties. Monek [v. Borough of S. River, 354 N.J. Super. 442, 451 (App. Div. 2002)]. The amendment was intended to "eliminate the coverage of this section for charges arising from acts outside the scope of police duties, but occurring in the course of the performance of those duties, and for 'status charges.'" Senate County and Municipal Government Committee Statement, Senate No. 1684, L. 1985, c. 457. Under the amendment, the focus is on the "nature of the police officer's conduct rather than who has initiated the proceedings against him." Gabbianelli v. Township of Monroe, 271 N.J. Super. 544, 549 (App. Div.), certif. denied, 137 N.J. 307 (1994).
[Id. at 454 (emphasis in original).]
The municipality contended that because the officer had not made the remark while conducting official police business, and because the department's confidentiality procedures prohibited disclosure of records containing any information about a person suspected of having AIDS, it was not required to provide him a defense. Id. at 455. In rejecting those arguments, we noted that the defendant officer had been sued because he took an affirmative act, not because he had failed to act, and it was clear that in making the alleged defamatory remark the officer did not have an ulterior motive and thus his conduct did not constitute a perversion of his job. Id. at 458-59.
In his thoughtful concurring opinion in Aperuta, Judge Weissbard contended that Bruno, supra, 239 N.J. Super. at 473, should not be read to engraft onto N.J.S.A. 40A:14-155 the existence or non-existence of an "ulterior illegal goal" of the officer or "perversion" of his job "as if it were a definitive statement of the meaning of the statute." Aperuta, supra, 381 N.J. Super. at 464. Judge Weissbard concluded that the use of those words in Bruno was intended only as a description of the officer's activities, which had supported the Bruno panel's conclusion that the officer's activities were outside the scope of his police duties. Bruno, supra, 239 N.J. Super. at 473. Judge Weissbard maintained that a "scope of employment" analysis, as opposed to the "ulterior illegal goal" and "perversion of job" language, should be employed as the proper test when determining these cases. Aperuta, supra, 381 N.J. Super. at 465.
We are persuaded by the approach to these cases suggested by Judge Weissbard, as well as by his observation that the methodology suggested in several of the reported cases focusing the court's attention on whether there was an "ulterior illegal goal" or "perversion of the officer's job" has "simply added a layer of confusion to an already confusing line of authority." Ibid.
We conclude that in determining whether a criminal charge may be considered as "arising out of and directly related to the lawful exercise of police powers in the furtherance of his official duties[,]" N.J.S.A. 40A:14-155, the focus of the analysis must center on the conduct upon which the criminal charges were based and a determination whether it occurred in the scope of the officer's official duties. This approach is fully consistent with and supported by the statement of legislative intent of the 1986 amendment, which was to eliminate the coverage of N.J.S.A. 40A:14-155 for charges arising from acts outside the scope of police duties but occurring in the course of the performance of those duties. See Senate County and Municipal Government Committee Statements, supra.
In Aperuta, supra, Judge Winkelstein suggested this approach, as an alternative analysis, by examining "whether the lawsuit was grounded on action taken by the accused in the 'scope of his or her employment.'" 381 N.J. Super. at 460. Judge Winkelstein found authority for this approach in this court's analysis of the phrase "scope of employment" in Prado v. State of New Jersey, 376 N.J. Super. 231, 235-36 (App. Div. 2005), reversed on other grounds, 186 N.J. 413 (2006), involving N.J.S.A. 59:10A-1, which requires the Attorney General to provide a defense to present or former State employees sued based on an act or omission occurring while they were acting in the scope of their employment. Aperuta, supra, 381 N.J. Super. at 460-61. Judge Winkelstein further explained the "scope of employment" approach, as follows:
In Prado, taking our lead from the Restatement, we defined an act to be within the scope of employment if, "'it is of the kind [that the servant] is employed to perform; it occurs substantially within the authorized time and space limits; [and] it is actuated, at least in part, by a purpose to serve the master.'" [Prado, supra, 376 N.J. Super. at 243.] (quoting Di Cosala v. Kay, 91 N.J. 159, 169 (1982) (quoting Restatement (Second) of Agency 228 (1957)). Applying that test, we found that Prado was entitled to a defense from the State. Id. at 245.
We find no discernable difference between the language of N.J.S.A. 40A:14-155 and the "scope of employment" language in N.J.S.A. 59:10A-1 addressed in Prado. The 1986 amendment provides the officer with a defense when the charges arise "out of and [are] directly related to the lawful exercise of police powers in the furtherance of his official duties." N.J.S.A. 40A:14-155. The Legislature's intent behind that language was to eliminate coverage for "status" charges and charges arising from acts that occurred in the course of a police officer's employment but fell outside the scope of the officer's police duties. See Senate County and Municipal Government Committee Statement, Senate No. 1 684 L. 1985, c. 457. Given that context, we take the current language of N.J.S.A. 40A:14-155 to effectively mean that to receive a defense at the local government's expense, the actions that resulted in the lawsuit against the officer must have been taken by the officer in the scope of his employment. Without directly discussing the scope of employment analysis, we expressed a similar view in Bruno, supra, where we determined the officer did not qualify for a defense under N.J.S.A. 40A:14-155 because "the criminal activities charged were outside the scope of his police duties." 239 N.J. Super. at 473.
Next, then, we apply the "scope of employment" analysis to the facts here. What constitutes "scope of employment" is informed by the Restatement of Agency, 228 and 229. Carter v. Reynolds, 175 N.J. 402, 411-12 (2003). The factors to be considered to determine if an employee's conduct falls within the scope of his employment are:
(a) it is of the kind [the servant] is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master;
. . . .
[Restatement (Second) of Agency 228 (1958).]
Restatement section 229 provides:
(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
. . . .
(j) whether or not the act is seriously criminal.
[Carter, supra, ibid. (quoting Restatement (Second) of Agency 228, 229.)]
Applying these factors here, we reach the same conclusion that we do when we analyze the facts under prior case law that Pirrello was entitled to a means for his defense under N.J.S.A. 40A:14-155.
* * * *
While the prior cases that addressed the 1986 amendment did not use a scope of employment analysis, those decisions are consistent with that methodology. The failure of officer Sparkman to arrest those using illegal drugs could not be said to have been actuated, even in part, "by a purpose to serve the master." See Restatement (Second) of Agency, supra, 228, 229. Similarly, Bruno, charged with unlawfully removing cocaine from a vehicle he was guarding and distributing the drugs at a party, also was alleged to have committed an act not actuated, even in part, by a purpose to serve the public. To risk stating the obvious, these acts are not generally considered to be within the scope of a police officer's employment.
In Gordon, the officer was charged with interfering with an internal investigation of a fellow officer. 268 N.J. Super. at 179. That too did not constitute an action taken, even in part, to serve the City or the public. And in Monek, supra, 354 N.J. Super. 442, a defense under N.J.S.A. 40A:14-155 was, in fact, warranted because the alleged assault occurred as a result of Monek's efforts to make an arrest; while, conversely, witness tampering during the investigation of the assault charge did not meet the Restatement criteria to qualify as having occurred during the course of Monek's employment.
Consequently, whether we analyze the facts of this case under the methodology used in Sparkman, Bruno, Gordon, and Monek, or use a scope of employment test, we arrive at the same conclusion.
[Aperuta, supra, 381 N.J. Super. at 461-64.]
Therefore, we conclude that the analysis of the issue of whether legal fees should be reimbursed to a police officer when the charges against him or her have been dismissed, or otherwise favorably resolved in favor of the officer, rests on an examination of whether the incident that resulted in the charges against the officer occurred in the scope of his or her employment. Application of that test may also require a factual determination by the trial court as to whether the charged conduct occurred. See Gordon, supra, 268 N.J. Super. at 185-85 (requiring the police officer to prove that he had accessed the computer system not for the personal reason of providing the information obtained to his fellow officer to assist him during the ongoing investigation of his activities, but, rather, for a lawful reason in the furtherance of his official duties).
Here, did Caruso strike Aldea? Did he encourage or facilitate the aggravated assault of Aldea by fellow prisoners? Did he know that Aldea was assaulted and fail to report it to cover-up improper, if not illegal, conduct? Did Gonzalez-Cardona encourage or direct Aldea's fellow prisoners to "fuck him up?" Did Smith, Gialanella, and/or Venacio assault Aldea, see it occur, or know that it had occurred and fail to report it to cover-up improper, if not illegal, conduct? The answer to these and other questions provides the answer to whether the conduct or lack of action that led to the criminal charges against the officers occurred within the scope of their employment, with their acquittal thereof entitling them to reimbursement of their legal fees pursuant to N.J.S.A. 40A:14-155. Stated differently, the answer to those and other questions is determinative of whether the criminal charges against them arose "out of and [were] directly related to the lawful exercise of police powers in the furtherance of [their] official duties." The assaulting of a handcuffed prisoner, or facilitating, encouraging or permitting such an assault is neither lawful nor in furtherance of official police duties. The dismissal of the criminal charges is at least a prima facie indication that such conduct did not occur and that the officers were wrongfully charged. However, for reimbursement of legal fees paid or incurred to defend such charges to occur, the officers must establish the lawfulness of the exercise of their police powers in the furtherance of their official duties at the time of the incident by a preponderance of the evidence. That is because all that dismissal or acquittal of criminal charges actually means standing alone is that the State was unable to prove the elements of criminal offenses beyond a reasonable doubt. See Gordon, supra, 268 N.J. Super. at 181-82 (stating that the failure of the State to prove guilt of criminal charges beyond a reasonable doubt "does not necessarily mean that plaintiffs can sustain their burden of proving by a preponderance of the evidence that reimbursement is required under the statute").
Thus, when analyzing requests pursuant to N.J.S.A. 40A:14-155 for reimbursement of legal fees incurred in defending actions, criminal or otherwise, by applying the "scope of employment" test, a court must recognize that acquittal or a resolution otherwise favorable to the police officer, standing alone, is insufficient to require reimbursement; rather, the officer must prove by a preponderance of the evidence that he or she was engaged in an activity that was directly related to the lawful exercise of police powers in the furtherance of his or her official duties when the conduct giving rise to the charges took place. Monek, supra, 354 N.J. Super. at 452; Gordon, supra, 268 N.J. Super. at 185.
The additional context in which these cases must be analyzed is reflected by the policy behind N.J.S.A. 40A:14-155 "that police officers might be discouraged from effectively pursuing their duties if they were forced to provide their own defense against civil actions and criminal charges brought by disgruntled 'victims' of law enforcement." Van Horn v. Trenton, 80 N.J. 528, 536 (1979). The nature of police officers' duties is such that they may be "exposed to a substantial risk that such civil or criminal actions will be initiated, regardless of their merits." Id. at 536-37. That legislative intent has not been abrogated by the 1986 amendment to N.J.S.A. 40A:14-155. Rather, that amendment has provided context to that legislative purpose by recognizing the reality that police officers are always subject to substantial risk for the filing of civil or criminal actions against them, even when lawfully exercising their police powers in the furtherance of their official duties, by specifically limiting reimbursement to circumstances that arise out of and are directly related to the lawful exercise of police powers in the furtherance of their official duties. This pointed statutory requirement requires, not a dance around the issue, but factual determinations thereof.
In that context, we reject, as was properly questioned by the Bruno panel, the blanket suggestion in Sparkman, supra, 237 N.J. Super. at 629, that "[a] police officer is not entitled to counsel fees where the proceedings arise as a result of the failure to perform his official duties." See Bruno, supra, 239 N.J. Super. at 472. Indeed, such a distinction between affirmative actions and the failure to act is unrealistic, unduly harsh, without a basis in the statutory language or its intent, and fails to account for situations where the event that occurred, or allegedly occurred, could give rise to both charges based on action taken as well as charges based on failure to act in a prescribed manner. If it is untrue that unlawful action took place, then failure to report that which did not occur should not result in a denial of coverage under N.J.S.A. 40A:14-155, whereas coverage lies when the action taken was lawful in the furtherance of official duties. Not only would such a result be illogical, it could not be a legislatively intended result.
It is with this background, with a focus on the statutory language, that we now consider the City's arguments.
II.
The City argues that the conduct of the officers that resulted in criminal charges being filed against them falls outside the protection provided by N.J.S.A. 40A:14-155. More specifically, the City argues that the criminal charges did not arise out of, nor were they directly related to, the lawful exercise of police powers in the furtherance of their official duties. If unlawful conduct occurred, that would be so; if it did not, then the charges would have arisen out of and been directly related to the lawful exercise of police powers in the furtherance of official duties.
The trial judge proceeded on the belief that the critical issue for him to determine in his analysis as to whether the criminal charges against plaintiffs arose out of and were directly related to the lawful exercise of police power in the furtherance of their official duties was whether the officers had an ulterior motive for their conduct that constituted a perversion of their official duties. Using that approach, the judge found that the City had not established by a preponderance of the evidence that the officers had such an ulterior motive for any of their alleged conduct or their alleged failure to act. The judge found, for example, that even if Caruso had slapped Aldea, or Gonzalez-Cardona had said "fuck him up" with reference to encouraging a beating of Aldea, those actions would have merely constituted excessive force not occasioned by an ulterior motive, and falling within the category of careless or overzealous conduct, which would be encompassed by the statute. More specifically, the judge concluded that the acquittal of the officers, coupled with their denials of the charged conduct, constituted a prima facie case of entitlement to legal fees under the statute, and that it was then incumbent for the City to prove an ulterior motive.
Although we agree that whether the officers had an ulterior motive in their conduct or inaction certainly is relevant on the issue of whether they were acting within the scope of their employment, we disagree with the proposition that whether such conduct occurred is irrelevant. Additionally, we disagree that the City had the burden to establish the statutory entitlement. Rather, the burden remained on plaintiffs to establish the existence of the statutory criteria. Gordon, supra, 268 N.J. Super. at 185.
The judge also concluded that for the conduct to not be covered by the statute, the court would have had to find that such conduct had been undertaken by the officers for a personal reason or objective. We agree that a determination of that issue is relevant on the issue of whether the actions by the officers were within the scope of their employment. However, the determination as to exactly what that conduct or inaction actually consisted of would provide the answer to the question as to whether the officers acted for a personal reason or objective. Stated differently, a court must first make factual findings as to what occurred. Once that determination is made, then the court is able to determine whether that action upon which the criminal charges were based was the lawful exercise of police powers in the furtherance of their official duties.
We conclude that the overall approach undertaken by the trial judge was incorrect because it did not result in a determination of what had actually occurred in the context of a "scope of employment" analysis in conjunction with the statutory language. In Gordon, supra, 268 N.J. Super. at 183, for example, among the officer's lawful duties was looking up information through use of the police computer, and that was what he did. The allegation was that he did so for the improper purpose of disclosing that information to a fellow officer facing charges. The officer denied that, but if it occurred in the manner charged, the officer's conduct could not have been considered to be the exercise of lawful police powers in the furtherance of his official duties. In such circumstances, we concluded that a trial was necessary to determine what the officer's motive had been in utilizing the computer to look up that information. Ibid.
As we have discussed, we reject the City's contention that because an assault by a police officer of a person in custody, or a failure to prevent or report an assault of such person, necessarily falls outside the lawful exercise of police powers and cannot be in furtherance of official duties, plaintiffs are automatically not entitled to reimbursement pursuant to N.J.S.A. 40A:14-155. Obviously, criminal activity cannot fall within the lawful or official duties of a police officer. However, if analyzed in accordance with the City's proffer, there could never be recovery by a wrongly accused police officer of counsel fees, since allegations of criminal or disciplinary conduct are always the basis for charges against a police officer. What the City suggests is that the "charge" itself, not the charged officer's actual "conduct" would dictate the result. Such a conclusion would entirely abrogate the stated legislative purposes of N.J.S.A. 40A:14-155.
Here, the trial judge did not resolve the factual issues necessary to determine whether the officers were acting within the scope of their employment. More specifically, did Caruso, Smith, Gialanella, Venacio, and/or Gonzalez-Cardona permit the assault of Aldea to occur, or fail to prevent it or report it (count one); did any of them assault Aldea while in police custody (count two); did they conspire to commit or permit an aggravated assault of Aldea (count three); and did Caruso, Gialanella, Smith, and/or Venacio commit an aggravated assault upon Aldea (count four)? If they were wrongfully accused, and their conduct at the time of the alleged incident arose out of and was directly related to the lawful exercise of police powers in the furtherance of their official duties, they should be entitled to be reimbursed the expense of their defense. Stated differently, at the time the conduct upon which the charges were based, were these officers lawfully furthering their official pursuits as police officers? In that connection, it seems obvious that admissions made by some of the officers to violations of certain departmental rules and regulations would be relevant in addressing that issue.
Accordingly, we are constrained to reverse and remand for further proceedings consistent with this opinion.
III.
The City also argues that the trial court erred in declining to admit into evidence the information contained in the Internal Affairs investigation. Although the City proffered admission of the Internal Affairs investigation for the limited purpose to explain why the charges were filed, and not for the truth of the statements contained therein, the discussion contained in the record concerning the admission of this investigation indicates otherwise. Certainly, the Internal Affairs investigation would have been admissible as a public report pursuant to N.J.R.E. 803(c)(8), subject to the exclusion of inadmissible hearsay contained therein. However, the City also offered that investigation because it "contains the statements of everybody who was interviewed in connection with this matter[,]" indicating that it wanted the court to also consider the truth of those statements on the issue of whether the charges arose out of and were directly related to the lawful exercise of police powers in furtherance of their official duties. Moreover, the criminal and disciplinary complaints were already in evidence; therefore, the nature of the charges had already been presented to the court. There was also no issue as to whether an Internal Affairs investigation had been conducted, or the basis for the criminal and disciplinary charges.
On appeal, a judge's decision to admit or deny evidence is reviewed under a misapplication of discretion standard. State v. Fazio, 126 N.J. 112, 131 (1991). Here, we find no misapplication of discretion by the trial judge in precluding the internal affairs investigation. However, we express no opinion as to whether all or a portion of the Internal Affairs investigation should be admitted, if offered, during the remand proceedings.
IV.
The City also argues that the reimbursement of the officers should have been limited to reasonable legal fees and expenses that represent actual payment or a bona fide incurred obligation. The City further argues that the trial judge relied on inadmissible hearsay and speculation as the basis for disregarding evidence that was favorable to the City on the issue of the reasonableness of the fees. We address these issues because, depending on the remand rulings on the issue of fee entitlement, they may become relevant.
The City argues that it should only be responsible to reimburse the officers for legal fees and costs they actually paid or that they are liable to pay. The City also asserts that the court should have considered the fact that the fees charged by Critchley to Caruso, $50,000, covered both the pre-trial and jury trial legal costs, which should have been considered on the issue of reasonableness. For that same reason, the City argues that the amount of fees incurred by Gialanella for his defense should have been considered. The City also contends that trial court should have considered the fact that counsel for Gonzalez-Cardona, Smith and Venacio had been willing to accept the fees provided to them by the FOP in full satisfaction of their obligation if the City was not determined responsible.
We first note that R. 4:42-9(b) requires that all applications for counsel fees must be supported by an affidavit of services addressing the factors set forth by RPC 1.5(a). Those requirements were not met. We also note that the reasonableness of the fees sought by Gonzalez-Cardona, Smith and Venacio was challenged by the City. By way of example, the City pointed to the amounts charged for the review of discovery as being too uniform and unreasonable. In circumstances where the issue of reasonableness is challenged, a plenary hearing should be conducted on that issue. See, e.g., Mayer v. Mayer, 180 N.J. Super. 164, 169 (App. Div.), certif. denied, 88 N.J. 494 (1981).
We agree with the City that when considering the issue of reasonableness, the fees charged to both Caruso and Gialanella are relevant, and the issue of whether Gonzalez-Cardona, Smith and Venacio are obligated to pay the fees represented by the bills submitted at trial should also be considered. We reject, however, the City's contention that the legal fees due the officers, if any, are in any way limited to amounts normally paid by the City for authorized services. Mezzacca, supra, 147 N.J. Super. at 14 (noting that "[w]hen a statute speaks in terms of reimbursement, it focuses on costs already incurred, contemplates governmental liability for expenditures, reasonable in amount, for services rendered by counsel of the employee's own choice).
Reversed and remanded for further proceedings consistent with this opinion.
The charges in count four (second-degree conspiracy) were dismissed by the court on defendants' motion at the conclusion of the State's case.
This complaint was initially filed in the Chancery Division, General Equity, docket number C-245-02. However, on motion by the City, the matter was transferred to the Law Division and assigned this docket number.
The report prepared by the officer stated that his fellow officer had observed the suspect strike his head on the cell bars, when it was clear that the fellow officer had not observed the incident.
The City stipulated that the fees charged by counsel for Caruso and Gialanella were reasonable.
(continued)
(continued)
2
A-2529-04T2
August 11, 2006
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