FRANCESCO PAGANO v. TOWNSHIP OF POHATCONG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRANCESCO PAGANO,

Plaintiff-Appellant,

v.

TOWNSHIP OF POHATCONG, TOWNSHIP

OF POHATCONG COUNCIL, TOWNSHIP

OF POHATCONG CHIEF FINANCIAL

OFFICER PETER KOWALICK, JR. (in

his official capacity), and MAYOR

STEPHEN BABINSKY (in his official

capacity),

Defendants-Respondents.

___________________________________

January 29, 2015

Argued January 13, 2015 Decided

Before Judges Yannotti and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-63-11.

John P. Nulty, Jr., argued the cause for appellant (Cammarata, Nulty & Garrigan, L.L.C., attorneys; Mr. Nulty, on the brief).

Kevin P. Benbrook argued the cause for respondents (Benbrook & Benbrook, L.L.C., attorneys; Mr. Benbrook and Sieglinde K. Rath, on the brief).

PER CURIAM

Plaintiff appeals from an order of the trial court entered on September 17, 2013, entering judgment in favor of defendants and denying plaintiff reimbursement of legal fees expended in defense of an underlying criminal prosecution which resulted in an acquittal. We affirm.

We discern the following relevant facts from the record. Plaintiff was a Pohatcong Township police officer on road duty on January 9, 2007. After requesting a random license-plate check on the vehicle driven by O.G.1, plaintiff pulled over O.G., whose registration had expired. O.G. was arrested because of an outstanding warrant. While he was removing O.G. from the vehicle, plaintiff observed a box cutter between the front seat and center console. Plaintiff entered the vehicle to retrieve the box cutter and claimed to have seen a handgun between the rear seat cushions. O.G. was charged with unlawful possession of a weapon as well as motor vehicle offenses.

The next day, plaintiff attempted to play the video of the events which he believed would have been recorded by the mobile video recorder ("MVR") in his vehicle. He claimed that the video malfunctioned and, therefore, he wrote his report of the incident from memory. In his written report, plaintiff provided his version of the events, and later provided testimony consistent with that account before the grand jury and several suppression hearings in O.G.'s criminal matter. In his report plaintiff said he advised O.G. that he was going into the car to retrieve the box cutter and O.G. said, "Go ahead and please take my money and my cell phone out from the vehicle." The report says that plaintiff saw the butt of a gun wedged between the lower and upper cushion of the rear seat, directly behind the driver's seat, which plaintiff removed. Plaintiff's report states, "I showed the gun to [O.G.] and I asked him 'what's this[?]' He paused for a few seconds and stated 'Oh God I did not know that there was a gun on the back seat, a friend used my car last week and he probably left the gun there.' I never told [O.G.] where the gun was located."

Sometime thereafter, the State discovered that the video from plaintiff's vehicle could be played, and was viewed by the Warren County Prosecutor's Office. The tape revealed significant inconsistencies with plaintiff's prior account of the stop and search. Specifically, the tape showed that when plaintiff emerged from the car with the gun, O.G. expressed surprise and asked where plaintiff had found it. Plaintiff told O.G. he found it on the back seat. Based upon the newly discovered evidence, the criminal charges against O.G. were dismissed.

Plaintiff was indicted for official misconduct, perjury, and falsification of public records. He requested a "necessary means" for defense under N.J.S.A. 40A:14-155 ("the Reimbursement Statute"), but his request was declined. After a jury trial, plaintiff was acquitted of the charges. He filed suit, alleging that N.J.S.A. 40A:14-155 entitled him to seek reimbursement of legal fees from defendants.

During a bench trial, Judge Amy O'Connor heard testimony from plaintiff and reviewed plaintiff's report about O.G., plaintiff's grand jury testimony, and his testimony during O.G.'s suppression hearing. The judge also reviewed the MVR. The judge considered plaintiff's argument that he was engaged in the lawful exercise of his police powers in furtherance of his official duties in light of the evidence presented.

The judge found plaintiff's testimony conflicted with statements he had previously given and with what was depicted on the MVR, and, as a result, his testimony concerning the details of the stop was not reliable. The court found plaintiff knowingly made a false entry in the complaint report and made material, willfully false statements, while under oath before the grand jury and in the suppression hearing, which deviated significantly from what actually happened. The judge ruled that "entering false statements into a complaint report and testifying falsely under oath is not engaging in 'the lawful exercise of police powers' nor acting in 'furtherance of [a police officer's] official duties.'" The judge memorialized her findings in an order dated September 17, 2013.

On appeal, plaintiff argues that he is entitled to reimbursement of his legal fees because he was exonerated on the criminal charges arising out of the exercise of police powers in furtherance of his official duties, pursuant to N.J.S.A. 40A:14-155, and that the court's findings of fact and conclusions of law to the contrary lacked sufficient support in the record. We disagree.

Our scope of review is limited, and we will "'not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

N.J.S.A. 40A:14-155 provides in relevant part

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[.] . . . . 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.

Under the statute, "[r]eimbursement is not required solely because the alleged criminal act occurs while the officer is on duty." Monek v. Borough of South River, 354 N.J. Super. 442, 452 (App. Div. 2002) (citing Bruno v. City of Atl. City, 239 N.J. Super. 469, 473 (App. Div.), certif. denied, 122 N.J. 165 (1990)). Similarly, "acquittal alone is not sufficient to require reimbursement." Gordon v. Borough of Middlesex, 268 N.J. Super. 177, 185 (App. Div. 1993).

Rather, an officer "must prove that he or she was engaged in activity '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 185-86 (quoting N.J.S.A. 40A:14-155). The State's failure to prove criminal conduct 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." Id. at 181-82.

Plaintiff's assertion that the purposes and history of N.J.S.A. 40A:14-155 support his claim for reimbursement is unpersuasive. A two-part test has been employed to determine whether reimbursement is appropriate under the statute. See Aperuta v. Pirrello, 381 N.J. Super. 449, 458 (App. Div. 2005). First, the court "examine[s] whether the legal proceedings were grounded on an affirmative act by the officer, rather than the officer's failure to act." Ibid. (citing Bruno, supra, 239 N.J. Super. at 472). Second, "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." Ibid. (citing Gordon, supra, 268 N.J. Super. at 185-86).

Plaintiff argues that each and every action he took was within the scope of his employment and duties as a police officer. He asserts that "erroneous reporting" does not place him outside of the intended scope of the Reimbursement Statute. However, the trial judge found plaintiff's actions were not mere mistakes and that he had an "ulterior illegal goal" to wrongfully implicate O.G. through false statements, and that goal "constituted a perversion of his job." We find no error in that determination.

Based on her credibility findings, the judge determined that plaintiff had purposely made false statements and that in doing so, plaintiff clearly was not lawfully acting in furtherance of a police officer's duties. We are convinced that there is sufficient credible evidence in the record to support the judge's findings. See Rova Farms, supra, 65 N.J. at 484 (citation and internal quotation marks omitted).

Affirmed.

1 We use initials to protect the driver's identity.