IN THE MATTER OF TOMMASO POPOLIZIO and JOHNNY V. BANKS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5300-03T35300-03T3

IN THE MATTER OF TOMMASO

POPOLIZIO and JOHNNY V.

BANKS, POLICE DEPARTMENT,

CITY OF NEWARK.

____________________________________

 

Submitted: November 7, 2005 - Decided February 21, 2006

Before Judges A. A. Rodr guez and Yannotti.

On appeal from a final agency decision of the Merit System Board, DOP 2003-1773 and 2000-1893.

Fusco & Macaluso, attorneys for appellants (Ciro A. Spina, III, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent the Merit System Board (Pamela N. Ullman, Deputy Attorney General, on the brief).

Joanne Y. Watson, Corporation Counsel for respondent City of Newark (Carolyn A. McIntosh, Assistant Corporate Counsel, on the brief).

PER CURIAM

Newark Police Officers Tommaso Popolizio and Johnny V. Banks, appeal from the final administrative action of the Merit System Board (Board), upholding a decision by Administrative Law Judge (ALJ) Elinor R. Reiner, which approved a thirty-day suspension of each for violating Newark Police Department Rules and Regulations, Chapters 5:1.1 and 6:22 and N.J.A.C. 4A:2-2.3(a)(6) and (11). We affirm.

The facts are sharply disputed. At the hearing before the ALJ, Popolizio testified that on April 8, 1999, he and Banks attempted to pull over a vehicle involved in a suspected drug transaction. After the vehicle pulled over, Popolizio walked to the passenger side of the vehicle while Banks walked to the driver's side. Popolizio saw the brake lights go off and the reverse light go on. He warned Banks. Banks told the driver of the vehicle (later identified as Dawud Samaad Williams) to "turn the car off, turn the car off." Popolizio then heard Banks yell "Gun." The vehicle rushed towards Popolizio and struck him. As he fell, Popolizio drew his weapon and fired one round into the rear of the vehicle.

Banks testified that on April 8, 1999, he and Popolizio attempted to pull over a vehicle involved in a suspected drug transaction. After the vehicle stopped, Banks approached the vehicle's driver side and Popolizio approached the passenger side. As Banks was approaching the vehicle, he heard Popolizio say "the reverse lights are on." Banks yelled to the driver, "put the car in park, put the car in park." The vehicle's driver pointed a gun at Banks. Banks moved out of the way of the line of fire and yelled "gun." As Banks yelled "gun," he saw the vehicle strike Popolizio. Banks drew his weapon and fired it believing that Popolizio was being run over. As soon as he saw that Popolizio was not hurt, he stopped firing.

Shell casings were recovered at the scene of the incident because shots were fired from the service revolvers of both officers. The Internal Affairs Division of the police department conducted an investigation, led by Lieutenant Israel Caraballo. At the end of his investigation, Caraballo concluded that Popolizio and Banks had acted in violation of departmental rules and protocol by using unjustified force in discharging their weapons and making false statements to cover up their conduct. The officers were served with a preliminary notice of disciplinary action, which was followed by a departmental hearing. Popolizio and Banks were issued a final notice of disciplinary action and suspended for thirty days each.

Popolizio and Banks appealed and requested a contested case hearing. The ALJ found that the City of Newark acted properly in suspending the officers for thirty days each. The ALJ found that "each appellant's testimony was substantially contradictory, implausible, inconsistent, contrived and simply not worthy of belief." The ALJ concluded that Popolizio and Banks "fired at an unarmed suspect while running after the suspect's car, and fabricated their stories in order to protect themselves from charges." The ALJ found that the officers violated: (1) Newark Police Department Rules and Regulations, Chapter 5:1.1, by conducting themselves in such a manner as to bring discredit, ridicule and criticism to the department and that they fired their weapons at Williams when they had no justification to use such force; (2) Newark Police Department Rules and Regulations, Chapter 6:22, by falsifying an official report or record; (3) N.J.A.C. 4A:2-2.3(a)(6) in that the officers fired shots at an unarmed suspect; and (4) 4A:2-2.3(a)(11) in that the appellants put the citizens of the City of Newark in harm's way.

Popolizio and Banks sought review by the Board. The Board issued a final administrative action upholding the ALJ's decision. On appeal to us, Popolizio and Banks contend that, "[T]he decision of the Board is arbitrary, capricious and unreasonable and is not supported by substantial evidence on the record." We disagree and reject this contention, which is a challenge to the findings made by the ALJ and adopted by the Board. Our standard of review of an administrative determination is limited. We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985). Specifically, an appellate court may not vacate an agency's determination because the record may support more than one result. When reviewing an agency's factual findings, we must look to whether the agency could reasonably so conclude on the proofs, not whether we would have come to the same conclusion as the agency. Morgan v. Board of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). Given that standard of review, and after a careful examination of the evidence, we conclude that the decision by the Board is supported by sufficient credible evidence on the record as a whole. R. 2:11-3(e)(1)(D).

 
Affirmed.

The ALJ also indicates that the suspect utilized the surnames Johnson and Richardson.

(continued)

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A-5300-03T3

February 21, 2006