IN THE MATTER OF EDDIE GONZALEZ, POLICE DEPARTMENT, CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0644-07T20644-07T2

IN THE MATTER OF EDDIE

GONZALEZ, POLICE

DEPARTMENT, CITY OF

NEWARK

________________________________________________________________

 

Submitted March 9, 2009 - Decided

Before Judges Carchman and R. B. Coleman.

On appeal from a Final Decision of

Merit System Board, Docket No.

2004-3243.

Picillo Caruso Pope Edell Picini,

attorneys for appellant Eddie Gonzalez

(Annette Verdesco, on the brief).

Anne Milgram, Attorney General,

attorney for respondent Merit

System Board (Andrea R. Grundfest,

Deputy Attorney General, on the

brief).

Julien X. Neals, Corporation Counsel,

attorney for respondent City of

Newark (Steven F. Olivo, Assistant

Corporation Counsel, on the brief).

PER CURIAM

Appellant Eddie Gonzalez, a Newark Police Officer, appeals from a final decision of the Merit System Board (the Board) adopting the Findings of Fact and Conclusions of Administrative Law Judge LaFiandra (ALJ), concluding that appellant engaged in conduct unbecoming a public employee and violating Newark Police Department (the Department) Rules and Regulations. Specifically, the ALJ concluded that appellant violated the Department Rules and Regulations Chapter 6:22, falsifying an official report; Chapter 5:1.1, conduct which brings discredit, ridicule or criticism to the Department; and N.J.A.C. 4A:2-2.3(a)6, Conduct Unbecoming a Public Employee. The Board concurred and adopted the ALJ's recommendation of a six-month suspension. We affirm.

These are the relevant facts adduced at the hearing before the ALJ. In June 2003, Richard Diaz lived in Newark, and appellant was his next-door neighbor. Diaz and appellant were involved in a dispute, which resulted in Diaz filing a harassment claim against appellant alleging that appellant kissed Diaz's minor daughter.

On June 9, 2003, Newark Police Officer Philip Turzani was assigned as a dispatcher for the Department. Near the end of his 6:00 a.m. to 2:00 p.m. shift, he received a call from appellant asking Turzani if he would like appellant to bring him coffee. Appellant then arrived at the Newark Police and Fire Public Safety Communications Center (the Center) at approximately 1:30 p.m., in plainclothes, and requested that Turzani run a license plate number through the Department's computer system. Turzani asked appellant if his purposes for running the plate were "legal," and appellant responded that his neighbor was trying to obtain a job and wanted to check his driving history. Turzani admitted to running the license plate, but could not recall the name of the individual connected with the search. Turzani stated that appellant viewed the screen with the results on it.

Upon returning home from vacation on June 19, 2003, Diaz received twelve motor vehicle summonses in the mail. The summonses were allegedly issued by Officer Edward Sculthorpe of the Department on June 9, 2003, at approximately 2:00 p.m. Diaz challenged the summonses, claiming that he had not been stopped by a Newark police officer on that date. At the court hearing regarding the summons, Officer Sculthorpe denied writing them, and they were dismissed.

The summonses prompted a further investigation as on June 25, 2003, Diaz filed an Internal Affairs complaint with the Department against appellant. In response to the complaint, Captain Robert Sbaraglio of the Department spoke with Sculthorpe, who confirmed that he had not written the summonses. At that time Sbaraglio was the Desk Lieutenant for the North District. Sbaraglio knew both appellant and Sculthorpe because they were both assigned to the North District. Following the dismissal of the summonses, Sbaraglio conducted a preliminary investigation and identified the summons book that had been issued to Sculthorpe as the source of the summonses. Sbaraglio then had both appellant and Sculthorpe submit administrative reports regarding the summonses. Both denied issuing the summonses.

At this point, Captain Brian Gaven of Internal Affairs directed Sbaraglio to turn over the investigation to Internal Affairs. Captain Gaven reviewed the summonses and noticed that they contained Diaz's full name, address, driver's license and vehicle registration, which led him to believe that someone had obtained this information from the NCIC computer system in the Department. With the assistance of the F.B.I., Gaven found that on June 9, 2003, at 1:34 p.m., someone had accessed Diaz's license plate number and driver information through the Department's dispatch center, specifically on channel two. The captain found that no one had requested the check over the radio or phone, and the log sheets did not show a request for the check. Gaven discovered that Turzani operated channel two during the time the check occurred.

In a subsequent interview with Gaven, Turzani confirmed his earlier statement of his interaction with appellant. Following this interview Gaven contacted William Davis, a document examiner with the Division of Criminal Justice of New Jersey, in an effort to analyze the handwriting on the summonses. He provided Davis with various documents, including the summonses, samples of appellant's handwriting as well as that of Sculthorpe.

Davis appeared before the ALJ as an expert in forensic document examination, specifically handwriting. He indicated that his examination of the summonses and the writing samples allowed him to eliminate Sculthorpe as the author of the summonses. Although Davis found similarities between the summonses and the examples of appellant's handwriting, he could not state that appellant was the author. Davis found no evidence of forgery in the summonses and did find differences between appellant's writing and the writing on the summonses. However, Davis concluded in his report "[t]he similarities that were observed, coupled with certain writer habits consistent between the exemplar summonses and [the summonses], allowed me to conclude that the suspect was probably the author . . . ."

On October 28, 2003, Gaven conducted a videotaped interview of appellant. During that interview appellant denied having any knowledge of the summonses. He also provided a differing version of his interaction with Turzani.

According to appellant, on June 9, 2003, he noticed a Mercury Sable blocking his driveway, so he decided to call Turzani to ask him to run the license plate number to allow appellant to find out who owned the car. Appellant stated that he called Turzani at 12:28 p.m., but the officer told him to call back later. Appellant then called at 1:26 p.m., at which point appellant gave Turzani the license plate number. Turzani did not respond to the inquiry until 4:32 p.m., but by then the car had already been moved. Turzani informed appellant that the car belonged to Diaz. Appellant denied visiting the officer at the Center and bringing Turzani coffee on June 9, 2003.

Following this interview, Gaven obtained the cellular phone records for Turzani for June 9, 2003. The records showed no phone calls between Turzani and appellant on that date. Gaven also stated that his investigation revealed that the summons book had been assigned to the North District, but he did not know to whom. Additionally, a search of appellant's locker did not yield the summons book. Based upon his investigation, Gaven prepared a final report and Internal Affairs filed the charges against appellant.

At the hearing, Sculthorpe indicated that he was not working on June 9, 2003, he had never met Diaz, he had never conducted a traffic stop of Diaz, he had never issued Diaz a summons and he did not issue the twelve summonses. Turzani stated that he did not talk to appellant again after appellant left the Center, and denied providing the results of the license plate search to him over the phone. When presented with appellant's phone records, which indicated appellant had called the officer at 12:58, 1:26 and 4:32 p.m., the officer explained that one of the two earlier calls was in regards to the coffee, and he could not remember the substance of the rest. Turzani acknowledged that he did not see appellant write anything down while looking at the results of the license plate check.

Appellant denied ever taking one of Officer Sculthorpe's summons books. Appellant indicated to the ALJ that Sculthorpe, Turzani and Diaz all lied during their testimony.

On appeal, appellant asserts that the action of the Board was arbitrary, capricious, unreasonable and contrary to law. We disagree.

Our standard of review of agency determinations is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give deference to such decision, unless it is arbitrary, capricious or unsupported by substantial credible evidence in the record as a whole. Carter v. Twp. of Bordentown (In re Carter), 191 N.J. 474, 482 (2007); In re Distrib. of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001); Taylor, supra, 158 N.J. at 656-57; R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); Brady, supra, 152 N.J. at 210-11; Karins v. Atl. City, 152 N.J. 532, 540 (1998); In re S.D., 399 N.J. Super. 107, 121 (App. Div. 2008); In re Boardwalk Regency Corp. and DiBartolomeo, 352 N.J. Super. 285, 300-01 (App. Div.), certif. denied, 174 N.J. 366 (2002). Accordingly, we must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotations omitted).

It is not our function "'to substitute [our] independent judgment for that of [an] administrative' agency," such as the Board, "'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we will not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

Only when the agency's findings are clearly mistaken and "so plainly unwarranted that the interests of justice demand intervention and correction" will we "make [our] own findings and conclusions." Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001) (internal quotations omitted).

The thrust of appellant's arguments on appeal focus on the ALJ's findings as to credibility. In her decision, Judge LaFiandra rejected appellant's testimony as "self-serving." She found Turzani and Sculthorpe to be credible and concluded that appellant issued the twelve summonses to Diaz. The totality of the evidence presented at the hearing supports her findings, and we perceive of no basis for our intervention.

We affirm substantially for the reasons set forth in the ALJ's comprehensive opinion of July 11, 2007, as adopted by the Board on August 20, 2007.

 
Affirmed.

These charges generated other proceedings against appellant. Apparently, appellant was convicted of harassment, his appeal was dismissed and his employment terminated. These matters are in various stages of review and are not otherwise relevant to this appeal.

On October 1, 2006, Gaven retired after being promoted to Deputy Chief of the Fifth Bureau.

(continued)

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A-0644-07T2

July 31, 2009