STATE OF NEW JERSEY v. TERRY BROWNING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5186-06T45186-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY BROWNING,

Defendant.

_________________________________________________

 

Argued April 9, 2008 - Decided

Before Judges Axelrad and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment

No. 06-5360.

Cindy Nan Vogelman argued the cause for

appellants Jerramiah T. and Maureen Healy

(Chasan Leyner & Lamparello, attorneys;

Ralph J. Lamparello, of counsel; Ms. Vogelman, on the brief).

Mary R. Juliano, Assistant Prosecutor,

argued the cause for respondent (Luis A.

Valentin, Monmouth County Prosecutor,

attorney; Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Jersey City mayor, Jerramiah Healy, and his wife, Maureen Healy, appeal from an order of Monmouth County Assignment Judge Lawson finding no abuse of discretion on the part of the Monmouth County Prosecutor when, after a Grand Jury no-billed the Healys' charges of aggravated assault and official misconduct against an arresting Bradley Beach police officer, Terry Browning, and declined to remand the charge of aggravated assault to the municipal court for trial as a simple assault, the Prosecutor dismissed disorderly persons complaints, pending in the municipal court, alleging on the basis of the same facts considered by the Grand Jury that Browning had committed simple assault and harassment.

On appeal, the Healys argue that the Monmouth County Prosecutor's administrative dismissal of the municipal court disorderly persons charges against Officer Browning constituted an abuse of discretion, requiring reinstatement of those charges. Although the State did not file a cross-appeal, it argues that Judge Lawson erred in granting standing to the Healys to challenge the Prosecutor's decision. The State additionally asserts that the decision constituted a proper use of discretion.

This matter arises from an incident occurring in Bradley Beach on June 17, 2006 when, following a celebratory evening spent in a bar owned by Mayor Healy's sister, during which time Mayor Healy consumed numerous beers, the Mayor attempted to intervene in a dispute between another bar customer, Jeffrey Barnes, and his girlfriend, Jacqueline Volante. After police officers William Major and Terry Browning arrived, Healy refused orders to leave the scene because he was interfering with a police investigation, gesticulating at Browning with his finger and proclaiming his position as mayor and his friendship with the Chief of the Bradley Beach police. After being warned several times, a scuffle between Healy and Browning ensued, during which Browning attempted to handcuff Healy, succeeding only after the use of pepper spray. Healy's wife fell or was knocked to the ground during the affray.

Following the June incident, Healy was charged with and convicted in municipal court of obstruction of justice, N.J.S.A. 2C:29-1 and resisting arrest, N.J.S.A. 2C:20-2a(1). A conviction for disorderly conduct, N.J.S.A. 2C:33-2a(1) and -2b was merged into the obstruction conviction and dismissed. Healy's convictions were affirmed following trial de novo in the Superior Court and upon appeal. See State v. Healy, No. A-681-07T4 (App. Div. July 3, 2008).

Following Healy's arrest, Healy requested that the Monmouth County Prosecutor's Office investigate the conduct of arresting officer Browning. The Professional Responsibility Unit of the Monmouth County Prosecutor's Office did so, in conjunction with the Internal Affairs Unit of the Bradley Beach Police Department. No discipline resulted.

Two months after Healy's arrest, on August 18, 2006 Healy also filed a criminal complaint against Officer Browning alleging third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and both he and his wife filed criminal complaints against Browning charging second-degree official misconduct, N.J.S.A. 2C:30-2a. Additionally Healy filed charges in municipal court alleging the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a(1), and the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4b. His wife filed similar disorderly persons charges. The Healys also filed a notice of tort claim against Officer Browning and the Bradley Beach Police Department, but have not instituted civil actions against either.

The indictable charges were presented to a grand jury by the Monmouth County Prosecutor's Office over the course of four days in November and December 2006. Eighteen witnesses testified, including the Healys and Officer Browning, presenting divergent views of what had transpired. At the conclusion of the prosecutor's presentation of witnesses and the law, on December 18, 2006, the grand jury no-billed the two indictable charges and declined to remand the aggravated assault charge to municipal court as a simple assault.

The same day, the Monmouth County Prosecutor's Office administratively dismissed the disorderly persons charges pending in municipal court. A lengthy press release issued by the Prosecutor's Office, following the grand jury's action, stated in part:

As the result of the Grand Jury's decision not to return an indictment against Officer Browning as well as a careful and fact sensitive analysis of the totality of the circumstances surrounding the arrest [of Healy], the Monmouth County Prosecutor's Office has administratively dismissed the remaining disorderly persons and petty disorderly persons offenses (i.e. two counts each of Simple Assault and Harassment) signed against Officer Browning by Jerramiah and Maureen Healy.

Monmouth County Prosecutor Luis A. Valentin stated "The Grand Jury declined to return an indictment against Officer Browning. Based upon all evidence available at this time, there is similarly no reasonable basis to allow the non-indictable charges against Officer Browning to proceed to trial in municipal court. As such, these remaining charges against Officer Browning have been administratively dismissed in the interests of justice."

Following notice of the Prosecutor's action, counsel for the Healys sent a letter to the Prosecutor's Office requesting that the disorderly persons complaints against Officer Browning be remanded to the Bradley Beach municipal court, particularly in light of the fact that the municipal court found probable cause for the issuance of the complaints. In response, an assistant prosecutor stated:

You are correct that, technically, the Grand Jury did not mak[e] findings concerning the non-indictable offenses. However, the disorderly persons and indictable charges were based on the same set of facts and circumstances as alleged by Mr. and Mrs. Healy. Given its decision to return a "no bill," the Grand Jury plainly did not find a basis for the allegations.

The Office is aware the municipal court had found that probable cause supported the complaints. We do not perceive the municipal court's finding to be in conflict with our decision to administratively dismiss the non-indictable offenses. First, we believe the Grand Jury's determination was reached after a much more extensive, thorough and complete presentation of the relevant evidence that was before the municipal court. Second, we note that, if the Grand Jury believed further proceedings against Officer Browning were warranted, it could have downgraded the indictable charges to disorderly persons offenses and remanded them for prosecution in the municipal court. Its decision to no bill the matter completely reflects the collective judgment of the grand jurors that further prosecution against Officer Browning is not justified.

On April 30, 2007, the Healys filed a motion before Judge Lawson to reinstate the dismissed municipal court charges, alleging that the Prosecutor had committed a clear abuse of discretion under standards set forth in State v. Ward, 303 N.J. Super. 47 (App. Div. 1997). Judge Lawson heard argument on the motion, and in a June 1, 2007 written opinion and order, he denied the relief that the Healys requested.

In his decision, Judge Lawson discussed at length the issue of the Healys' standing to seek judicial review of the Prosecutor's action, concluding that Ward supported such standing, and that the decision was unaffected in this respect by later decisions in Matter of the Grand Jury Appearance Request of Loigman, 183 N.J. 133 (2005) and State v. Vitiello, 377 N.J. Super. 452 (App. Div. 2005).

Relying on Ward, 303 N.J. Super. at 54, the judge additionally affirmed the power of the Prosecutor to administratively dismiss municipal charges, and again utilizing the reasoning of that case, found no abuse of discretion on the part of the Prosecutor in doing so in the present matter. In this regard, the judge noted that, in Ward, we had relied on three factors in our determination that no abuse of discretion had occurred in related circumstances: (1) whether a civil lawsuit was adequate to provide private redress; (2) whether the private prosecution posed the risk that the complainant would use the municipal court proceeding to harass the defendant or to obtain an advantage in the related civil suit; and (3) whether the interests involved were predominately private or public. Id. at 60-61. Judge Lawson found, as the result of the filing by the Healys of a notice of tort claim, that the first two factors existed in the present matter. Addressing the third factor, he found a strong public interest to exist as the result of the invocation by Healy of his mayoral status and friendship by the Bradley Beach Chief of Police and of the publicity that Healy's arrest had engendered. Nonetheless, the judge found this factor insufficient to warrant reversal of the Prosecutor's dismissal decision as an abuse of discretion.

On appeal, the Healys argue bias in the assistant prosecutor's presentation to the grand jury; presentation of the wrong legal standard as governing the grand jury's deliberations; lack of legal support for the Prosecutor's determination to dismiss the municipal charges; an abuse of discretion by the Prosecutor arising from the fact that probable cause for issuance of the complaints had been found in the municipal court, and failure by Judge Larson to follow Ward's dictates in his decision, particularly, by not giving sufficient weight to the public interest in the dispute or to the testimony of grand jury witnesses favorable to the Healys.

For purposes of this appeal, we assume, without deciding, that Ward confers standing upon the Healys to challenge the Prosecutor's exercise of his discretion in a proceeding before Assignment Judge Lawson and to appeal the judge's determination. Ward, supra, 303 N.J. Super. at 51 n.1. Addressing the merits, we affirm, substantially for the reasons expressed by Judge Lawson in his written opinion of June 1, 2007.

We add only that we find no flaw with the manner in which the charges were presented by the assistant prosecutor to the grand jury for its consideration. Although the prosecutor stated, when appropriate, that conviction required proof beyond a reasonable doubt, he clearly and unequivocally instructed the grand jury that its role was to determine whether probable cause had been established. We have been presented with nothing that would suggest to us that the grand jury failed to follow the instructions given to it other than the fact that it reached a decision contrary to the Healys' position. See State v. Loftin, 146 N.J. 295, 390 (1996) (recognizing presumption that the jury will follow instructions given to it). Nor have we been presented with any evidence that would suggest that the assistant prosecutor or the Prosecutor, for that matter knew Officer Browning prior to the presentation or had any basis to be biased in Officer Browning's favor.

Without doubt, the Prosecutor possessed the discretionary authority to dismiss the charges pending against Officer Browning in municipal court. Ward, supra, 303 N.J. Super. at 57. Although that authority was subject to review for arbitrariness or abuse, we concur with the conclusion of Judge Lawson that the record in the matter provided no basis to conclude a misuse of discretion had taken place. As we stated in Ward,

The duty of a prosecuting officer necessarily requires that in each case he examine the available evidence, the law and the facts, and the applicability of each to the other, and that he intelligently weigh the chances of successful termination of the prosecution, having always in mind the relative importance to the county he serves of the different prosecutions which might be initiated.

[Ibid.]

We find nothing other than the required evaluation to have occurred in this matter. Although we recognize that the publicity given to the underlying events in the case and Mayor Healy's subsequent criminal prosecution are matters to be considered in determining whether the dismissals entered in this case were in the public interest, we are unwilling to hold that extensive publicity constitutes an overriding factor directing the Prosecutor's use of his discretion in a case such as this in which a measured evaluation of the evidence by both the grand jury and the Prosecutor suggested that further criminal action was unwarranted.

We find the remainder of the Healys' arguments to be of insufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

(continued)

(continued)

11

A-5186-06T4

August 5, 2008