THE ESTATE OF NICHOLAS DARE v. TOWNSHIP OF HAMILTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THE ESTATE OF NICHOLAS DARE,1

Plaintiff-Appellant,

v.

TOWNSHIP OF HAMILTON,

Defendant-Respondent.

_________________________________

March 13, 2014

Submitted February 24, 2014 Decided

Before Judges Parrillo, Harris, and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-650-10.

Jacobs and Barbone, P.A., attorneys for appellant (Louis M. Barbone, Eric H. Lubin and Lucille A. Bongiovanni, on the brief).

Gruccio, Pepper, DeSanto & Ruth, P.A., attorneys for respondent (Stephen D. Barse, on the brief).

PER CURIAM

This is an appeal of three police officer disciplinary convictions imposed by the Law Division under the auspices of N.J.S.A. 40A:14-150. Appellant appeals from the April 19, 2011 final judgment imposing an aggregate six-day suspension for violations of defendant Township of Hamilton's police department rules. We affirm.

I.

Dare was employed by the Township as a full-time police officer, holding the rank of patrolman. On three separate occasions December 1, 2006; July 25, 2007; and June 2, 2009 the Township, through its police chief, served Dare with three preliminary notices of disciplinary action, seeking multiple days of suspension. Dare pled not guilty to all of the charges and demanded a hearing on each allegation.

Consolidated hearings were conducted by a Township-appointed hearing officer in September and November 2009. Prior to the hearings, Dare submitted a motion to dismiss certain charges because they were not filed within the forty-five day limitation provided by N.J.S.A. 40A:14-147. The hearing officer reserved decision on the motion until the conclusion of the hearing.

A written report was issued on January 29, 2010, which, in summary, found the following:

On October 21, 2006, Dare "had a conversation with Jennifer Cressey, the wife of Sergeant Jon Cressey at a night Club in the Tropicana Casino. During the conversation, Officer Dare criticized both the [police] [d]epartment and several officers within the [d]epartment." This was found to violate police department Rule 6.3.12.2

On May 16, 2007, Dare "failed to prudently operate his police vehicle and bears partial responsibility for [a] motor vehicle crash" that resulted in "injuries to both the officer and [a] civilian." Additionally, after the accident, Dare "attempt[ed] to influence [a member of the Accident Review Board]'s decision." These acts were found to violate police department Rules 4.1.3, 4.1.6, 4.1.8, and 4.8.10.3

In late 2006, several emails "taken from the departmental email account of Police Sergeant Anthony Alcott were placed into Officer Dare's departmental mailbox." Dare "knew or should have known that the emails provided to him were not rightfully in his possession" and Dare's "failure to notify his superior officers of his acquisition of the emails prevented the [d]epartment from conducting a thorough investigation." This failure was found to violate police department Rule 4.1.5.4

Additionally, the hearing officer denied Dare's motion to dismiss, finding that the pertinent charges were filed less than one week following the police department's receipt of "sufficient information to file the matter upon which the complaint is based." N.J.S.A. 40A:14-147. Ultimately, the hearing officer recommended a total six-day suspension for the violations, which recommendation was adopted and implemented by the Township's police chief on February 3, 2010.

Dare filed his Law Division action against the Township on February 16, 2010, seeking, among other things, "upon final de novo appeal and hearing the plaintiff is not guilty of all charges." The trial limited to the municipal record and the arguments of counsel was conducted by Judge Valerie H. Armstrong on March 8, 2011. Neither party "supplement[ed] the record with additional testimony" pursuant to N.J.S.A. 40A:14-150.

On April 19, 2011, Judge Armstrong issued a comprehensive forty-one page written opinion that freshly canvassed and weighed the evidence, made findings of fact, and applied the applicable law. The judge concluded that each of the alleged violations was proven,5 and an aggregate six-day suspension was appropriate. The judge made no separate determination with respect to Dare's forty-five-day limitation of action claim because it was neither pled nor presented in the Law Division. This appeal followed.

II.

On appeal, appellant's arguments focus entirely upon the actions and findings of the hearing officer, not the Law Division's de novo review. We set forth appellant's argument points for clarity:

POINT I: THE FINDINGS OF FACT MADE BY THE HEARING OFFICER WITH REGARD TO THE 2006 CHARGES MUST BE REJECTED BY THIS COURT BECAUSE IT FAILED TO APPRECIATE THE BLATANT MISREPRESENTATIONS BY LT. BARR AND ERRONEOUSLY RELIED UPON THE UNCORROBORATED AND INCREDIBLE HEARSAY STATEMENT OF MRS. CRESSEY.

POINT II: THE CONCLUSIONS OF LAW MADE BY THE HEARING OFFICER WITH REGARD TO THE 2006 CHARGES MUST BE REVERSED BY THIS COURT BECAUSE THE STATEMENT ATTRIBUTED TO PLAINTIFF WAS NOT MADE "PUBLICLY."

POINT III: THE FINDINGS OF FACT AND CONCLUSIONS OF LAW MADE BY THE HEARING OFFICER WITH REGARD TO THE 2007 CHARGES MUST BE REJECTED BY THIS COURT BECAUSE PLAINTIFF COMMITTED NO RULE VIOLATIONS BY LAWFULLY PURSUING A SUSPECT AND MAKING INQUIRIES TO THE REVIEW BOARD.

POINT IV: THE FINDINGS OF FACT AND CONCLUSIONS OF LAW MADE BY THE HEARING OFFICER WITH REGARD TO THE 2009 CHARGES MUST BE REJECTED BY THIS COURT BECAUSE PLAINTIFF COULD NOT HAVE KNOWN THAT EMAILS IN HIS POSSESSION WERE THE RESULT OF A RULE VIOLATION.

POINT V: THE HEARING OFFICER ERRED AS A MATTER OF LAW BY DENYING PLAINTIFF'S MOTION TO DISMISS THE 2009 CHARGES BASED UPON THE TOWNSHIP'S BLATANT VIOLATION OF THE 45-DAY RULE.

Having reviewed appellant's arguments through the lens of the record presented to us, we conclude that Judge Armstrong's determination is entirely sustainable. We affirm substantially for the reasons set forth in her April 19, 2013 written opinion, and add only the following brief comments.

When the Law Division undertakes review of a non-civil service municipality's conviction of a police officer on disciplinary charges, that court considers the matter "'anew, afresh [and] for a second time.'" In re Disciplinary Procedures of Phillips, 117 N.J. 567, 578 (1990) (quoting Romanowski v. Brick Twp., 185 N.J. Super. 197, 204 (Law Div. 1982), aff'd o.b., 192 N.J. Super. 79 (App. Div. 1983)). In doing so, the trial court does not apply an abuse of discretion standard but makes its own findings of fact. Ibid. The trial court is called upon to "make reasonable conclusions based on a thorough review of the record," and may reverse, affirm, or modify a disciplinary conviction under its broad authority. Id. at 579. Although a court conducting a de novo review must give due deference to the conclusions drawn by the original tribunal regarding credibility, those initial findings are not controlling. Ibid.

Moreover, we play a limited role when reviewing a de novo proceeding. Ibid. We will not disturb the trial court's determination unless it was arbitrary, capricious, or unreasonable or not supported by substantial credible evidence in the record. Ibid. Applying those well-established principles, we are convinced that there is sufficient credible evidence in the record to support Judge Armstrong's findings.

With respect to appellant's forty-five-day argument, which was raised with the hearing officer, but abandoned in the Law Division, we decline to address it under well-settled failure-to-preserve principles. In re Wheeler, 433 N.J. Super. 560, 624 (App. Div. 2013). "Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). "[T]he points of divergence developed in proceedings before a trial court define the metes and bounds of appellate review." Ibid. Having specifically waived any challenge before the trial court as to the timeliness of some of the charges, we decline appellant's request to consider the issue for the first time on direct appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

1 The appeal was initiated on July 17, 2012, by "Patrolman Nicholas Dare." We granted permission to change the caption and substitute a party on December 10, 2013, after being alerted that "[o]n January 10, 2013, Mr. Dare passed," and "[Dare's] Estate wishes to proceed with this appeal."

2 Rule 6.3.12 requires that employees shall not "publicly criticize a superior officer or the official action of a superior officer either on or off duty."

3 Rule 4.1.3 requires that "employees shall obey all laws, rules, policies and procedures and directives of the department."

Rule 4.1.6 requires that "employees shall not refuse to obey or disregard a lawful order given by a supervisor or use any disrespectful or abusive language or action toward a supervisor."

Rule 4.1.8 requires that "employees shall not interfere with the proper administration of criminal justice in either administrative or criminal crisis."

Rule 4.8.10 requires that "when operating department vehicles, employees shall not violate traffic laws except in cases of emergency and then only in conformity with state law and department policy and procedure regarding the same."

4 Rule 4.1.5 requires that "employees knowing of other employees violating laws, ordinances or rules of the department shall report same in writing to the Chief of Police through official channels. If the employee believes the information is of such gravity that it must be brought to the immediate personal attention of the Chief of Police, official channels may be bypassed."

5 Judge Armstrong dismissed as unfounded a separate allegation that Dare was insubordinate under police department Rule 3.3.2. That finding is not the subject of the present appeal.