IN THE MATTER OF ANTHONY GIARRUSSO, EAST JERSEY STATE PRISON, DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3660-04T13660-04T2

IN THE MATTER OF

ANTHONY GIARRUSSO,

EAST JERSEY STATE PRISON,

DEPARTMENT OF CORRECTIONS.

_______________________________________

 

Submitted January 30, 2006 - Decided February 10, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from a final decision of the Merit System Board, Docket Nos. DOP-2003-4278 and OAL-CSV-07406-03.

John G. Cito, attorney for appellant Anthony Giarrusso.

Nancy Kaplen, Acting Attorney General, attorney for respondent East Jersey State Prison, Department of Corrections (Patrick DeAlmeida, Assistant Attorney General and Debra Kradjian Stephans, Deputy Attorney General, on the brief).

PER CURIAM

Anthony Giarrusso (Giarrusso) appeals from a final determination of the Merit System Board (Board) affirming his removal by the Department of Corrections (Department) as a senior correction officer at East Jersey State Prison. We affirm.

We briefly summarize the procedural history and the relevant facts. On March 13, 2003, Giarrusso was off-duty and shopping at a Kmart store in Belleville, New Jersey. Giarrusso was arrested and charged with shoplifting a pair of black Texas steel boots, in violation of N.J.S.A. 2C:20-11(b)(1). The criminal charge was dismissed; however, on April 14, 2003, the Department served upon Giarrusso a preliminary notice of disciplinary action, seeking his removal on a charge of conduct unbecoming a public employee. Following a departmental hearing, the Department issued a final notice of disciplinary action, finding that the charge had been sustained and removing Giarrusso from his position. Giarrusso sought review by the Board, which referred the matter to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ).

The ALJ conducted a hearing on November 15, 2004. Hector Rojas, the loss prevention manager at the Kmart store in Belleville, testified that customers are afforded many opportunities for pay for merchandise they select. However, if a customer leaves the store without paying, that person is followed out of the store.

Rojas reviewed the Loss Prevention Investigation Report, which had been prepared by Kmart employee Angel Perez on March 13, 2003, the date of the incident. In the report, Perez wrote that Giarrusso had been observed in the shoe department putting on the black boots. Giarrusso thereafter passed all points of sale where he could have paid for the merchandise and left the store. Perez chased Giarrusso. According to Rojas, in the municipal court, Perez agreed to the dismissal of the shoplifting charge but, contrary to the company's policy, he had not consulted with the corporate legal department, which determines whether to dismiss or prosecute a matter. Rojas stated that, after the dismissal of the charge, Giarrusso and Perez returned to the store and Giarrusso paid for the boots.

Officer James Melillo of the Belleville police department testified that he was dispatched to the Kmart store on March 13, 2003. Giarrusso previously had been apprehended by another police officer. Perez identified Giarrusso as the alleged shoplifter. Perez also identified the boots that Giarrusso had in his possession as the items stolen from the Kmart store. Giarrusso was arrested and Perez signed the complaint. Melillo testified that he inspected the bottom of the boots and they appeared to him to be new.

Giarrusso denied that he stole the boots. He maintained that he had been shopping in the tropical fish section of the store, which was near the shoe department. He stated that, when he left the store, no alarm rang. Giarrusso denied that he ran away. Giarrusso was apprehended and the officer told him that he met the description of the person who stole the merchandise. The officer pointed to the boots that Giarrusso was wearing and Giarrusso said that they were his boots. He was arrested and charged with shoplifting. Giarrusso asserted that, in the municipal court, Perez asked him to pay for the boots so that he would not get fired. Giarrusso testified that he had no legal obligation to pay for the merchandise but he did so because he was concerned that Perez would lose his job.

The ALJ issued an initial decision on January 13, 2005 upholding the Department's disciplinary action. She found that Giarrusso had taken the boots from the Kmart store without paying. The ALJ found Giarrusso's testimony unworthy of belief. The ALJ stated:

It strains all reason to believe the version of the incident related by [Giarrusso], and his testimony was implausible and thoroughly unconvincing. [Giarrusso] was observed putting the Texas steel boots on in the store and walking out past all points of sale, and was thereafter chased by the security guard out of the store. The police were called and advised of the direction in which the alleged shoplifter had run, and [Giarrusso] was apprehended, as he fit the description given to the police. [Giarrusso] was wearing the Texas steel boots at the time. [Giarrusso]'s version of the events surrounding this incident would mean that appellant went to the store in April after the dismissal of the charges to pay for boots which he claims he had already purchased in February, because he felt bad for a security guard who, if [Giarrusso]'s testimony is to be believed, mistakenly identified [Giarrusso] as a shoplifter, chased him out of the store, and identified him to the police, leading to [Giarrusso]'s arrest. Simply put, a concoction of this magnitude is incredible.

The ALJ found that Giarrusso was guilty of conduct unbecoming a correction officer and further found that his removal was justified. In its final decision dated February 24, 2005, the Board accepted and adopted the ALJ's findings of fact and conclusion. This appeal followed.

Giarruso argues that the Department had the burden of proving the charge by clear and convincing evidence. Giarrusso notes that he was not convicted in the municipal court and contends that the Department failed to prove that he committed any act of shoplifting. Giarrusso further asserts that the ALJ's findings were based entirely on hearsay and there was no testimony from any person who saw him take the boots from the store without paying.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester County Welfare Bd. v. New Jersey Civil Serv. Comm'n, 93 N.J. 384, 390 (1993)). The judiciary can intervene only in "rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Ibid. We must affirm a decision of an administrative agency unless the determination is arbitrary, capricious, or unsupported by substantial credible evidence in the record. Campbell v. Department of Civil Service, 39 N.J. 556, 562 (1963). Furthermore, we must "defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Center, 127 N.J. 500, 513 (1992).

We have carefully considered Giarrusso's contentions and thoroughly reviewed the record before us on this appeal. We are convinced that Giarrusso's arguments are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm substantially for the reasons stated by the ALJ in her initial decision dated January 13, 2005 and the Board's final determination dated February 24, 2005.

Affirmed.

 

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A-3660-04T2

February 10, 2006