STATE OF NEW JERSEY, DIVISION OF STATE POLICE v. DETECTIVE I OSWALD JOHN MORALES

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1576-05T5

STATE OF NEW JERSEY,

DIVISION OF STATE POLICE,

Petitioner-Respondent,

v.

DETECTIVE I OSWALD JOHN

MORALES,

Respondent-Appellant.

_______________________________________

 

Argued November 1, 2006 - Decided February 7, 2007

Before Judges Wefing, Parker and Yannotti.

On appeal from a final decision of the Superintendent of the New Jersey Division of State Police, Docket No. 2003-0385.

Charles J. Sciarra, argued the cause for appellant (Sciarra & Catrambone, attorneys; Mr. Sciarra, on the brief).

Linda Vele Alexander, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney; Ms. Alexander, on the brief).

PER CURIAM

Appellant Oswald John Morales (Morales) appeals from a final determination of the Superintendent of the New Jersey State Police (Superintendent), in which the Superintendent found that Morales violated the rules and regulations and standard operating procedures of the Division of State Police (Division), in respect of an incident that occurred at the Meadowlands Racetrack on May 9, 2003. The Superintendent suspended Morales for six months. For the reasons that follow, we affirm.

The Division charged Morales with neglect of duty for failing to investigate a crime and failing to secure and take possession of a controlled dangerous substance (CDS) that had been found at the racetrack. Morales also was charged with failing to perform his duties efficiently; acting in a manner to create an impression among the public that he may have engaged in conduct that violated his trust as a member of the Division; and behaving in a manner that brought personal discredit to himself or the Division.

The Division referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ). At the hearing, the Division presented evidence from James Carlucci (Carlucci), Robert Bianchi (Bianchi), Dominick Sico (Sico), and John Rodgers (Rodgers), individuals who were responsible for security at the racetrack.

On May 9, 2003, Carlucci was working as a security guard at the racetrack. He testified that Sico called for assistance at the West Admission Gate. Carlucci responded with Bianchi and Rodgers. They broke up a verbal argument between two patrons. One of the patrons was taken to the security office because he was considered to be the aggressor. He asked to use the men's room. Permission was granted and the patron went into the men's room where he remained for about five to seven minutes. After he came out, the patron was ejected from the racetrack for the day. However, about ten minutes later, the patron returned. The patron was told that he could not re-enter the facilities.

The patron left and came back wearing a different shirt. He told Sico that he left some phone numbers in the restroom. Sico told the patron that he would get the phone numbers for him but he could not come into the building. The patron offered Sico money if he would let him go to the restroom because he had $500 "worth of shit in there." Sico, Carlucci, Bianchi, and Rodgers went to the restroom. Sico went into the toilet stall, where he found thirty to forty bags of a substance in the toilet paper dispenser. The substance was later determined to be heroin.

Carlucci put the drugs in his pocket. About ten minutes later, Rodgers arrived at the gate with Morales. Morales asked the patron whether the drugs belonged to him but the patron replied, "No, that's not mine." Morales asked the guards whether they had seen the patron put the drugs in the rest room. They said that they had not.

According to Carlucci, Morales told the guards that, because it was a "he said, she said type of deal," there was nothing that could be done about it. Morales stated that any charges would be thrown out of court if they arrested the patron. Carlucci testified that Morales said, "There's really nothing I can hold him on. Just let him go." The patron was ejected from the racetrack. Morales and the guards did not ascertain the patron's name.

Carlucci stated that after the patron left, Carlucci took the drugs out of his pocket and tried to give them to Morales but Morales did not want to take the drugs. Carlucci asked Morales what he should do with the drugs. Carlucci testified that Morales told him to flush the drugs down the toilet. Carlucci went into the restroom and flushed the drugs down the toilet. Bianchi also testified that Carlucci tried to give Morales the drugs.

Carlucci stated that twenty minutes later, he was told that Morales was looking for him. Carlucci went to see Morales, who asked him whether he still had the drugs. Carlucci informed Morales that he had flushed the drugs down the toilet. According to Carlucci, Morales said that he should not mention the confiscation of the drugs in his report.

Rodgers further testified that on September 11, 2003, the patron who had been ejected on May 1, 2003, returned to the racetrack. Rodgers recognized the man. The patron was informed that he was being ejected again and should not return. The patron ran towards the admission ramp, where he was stopped by the guards. The patron was escorted to the security office. He said that he ran because he thought he was being arrested for hiding drugs in the restroom on May 9, 2003. The patron admitted that the drugs found in the restroom on May 9, 2003, were his. The guards ascertained the patron's name.

Lieutenant Steven O. McDougall (McDougall), the acting unit supervisor at the Meadowlands, testified that Michael Fortino (Fortino), a supervisor in the racetrack security office, informed him on May 16, 2003, of the complaint regarding Morales. McDougall told Morales that he had received a complaint about the incident on May 9, 2003. Morales stated that the matter only involved a small amount of heroin. McDougall testified that Morales told him that because this was a "BS amount of drugs," he did not feel that the matter was worth investigating.

Morales testified on his own behalf. He denied the allegations. Morales stated that he never told anyone to flush anything down the toilet. Morales said that on May 9, 2003, one of the guards told him that he heard a bang while a patron was in the restroom. According to Morales, the guard went into the restroom and located the drugs. Morales admitted that he spoke with the patron; however, he had not ascertained his name.

Morales stated that he did not believe that he had probable cause to detain the individual or arrest the patron based on his interview. Morales said that he questioned the man to determine if he should be charged with possession of drugs. Morales denied that he told anyone not to make a report on the matter. Morales also said that he told McDougall that it was a "BS incident" that was being "orchestrated" by Fortino.

In his initial decision, the ALJ found that the Division had not proven its charges against Morales. The ALJ stated that there were "troubling" inconsistencies in the testimony of the guards regarding the suspect's ejection. The ALJ said that there also were inconsistencies in the testimony regarding the handling of the contraband. The ALJ noted that McDougall testified that he had viewed a videotape which showed Morales with the guards but the videotape did not show any drugs or any attempt to give the drugs to Morales.

The ALJ thought that it was incredible that the patron would tell a security guard that he had placed drugs in the restroom, was told by the guard to leave or be arrested, and yet returned to the gate again seeking permission to enter so that he could retrieve the drugs. The ALJ additionally found it incredible that the patron had returned five months after the May 9, 2003, incident and was randomly spotted and recognized by the security guards.

On the other hand, the ALJ found that Morales "appeared" to be credible. According to the ALJ, Morales was "soft-spoken and calm throughout his testimony." Morales had testified that the guards told him they searched the bathroom and found contraband after they heard a bang when the patron was in the restroom. According to Morales, no one saw the patron put the drugs in the restroom. The patron had not made any admissions regarding possession of the drugs and the patron did not make such an admission to him. The ALJ said that Morales' version of the incident was credible, consistent, and made sense.

In his final determination, the Superintendent rejected the ALJ's initial decision. He noted that, while he normally defers to the fact-finder's credibility determinations, such deference was not warranted in this case because the ALJ's credibility findings were on issues that were not material to his ultimate decision. The Superintendent found that the testimony of Carlucci, Bianchi, Sico, and Rodgers was rational and consistent. The Superintendent further found that Morales' version of the events was not.

The Superintendent found that it was not credible that the drugs had been found when the patron was in the restroom. He noted that, contrary to Morales' testimony, none of the guards had mentioned a banging coming from the restroom while the patron was there. The Superintendent commented that it was highly unlikely that the patron would return to retrieve the drugs if he had been questioned by a State Trooper at that time and then released. The Superintendent concluded that the guards' version of the events made more sense than Morales' version.

The Superintendent stated that the "real issue" in the case was what Morales did or did not do when told about the drugs. The Superintendent noted that Morales did not dispute that he had been told that illegal drugs had been found. Morales had testified that the substance found in the restroom "could have been anything." The Superintendent commented that it was incredible that Morales never asked to see the substance to confirm or dispel any suspicions about whether the substance was a CDS. The Superintendent found it immaterial that the drugs had been found in the restroom rather than in possession of the patron. In the Superintendent's view, this fact did not diminish a trooper's responsibility to take possession of the drugs.

The Superintendent also determined that Morales failed to fulfill his duty to investigate the matter. The Superintendent stated that Morales had given undue weight to the patron's denials over the version offered by the security guards at the Meadowlands, which included the patron's admission that the drugs in the restroom were his. The Superintendent found that had Morales undertaken "even a minimally satisfactory investigation," probable cause for an arrest "would have likely become apparent." He said that even if the patron could not be tied to the drugs for purposes of an arrest, "the discovery of heroin was significant in and of itself as evidence of some crime which must be reported, investigated and documented."

The Superintendent noted that Morales never bothered to get the suspect's name and "simply let [him] go." In addition, the Superintendent rejected Morales' assertion that Carlucci had flushed the drugs down the toilet without consulting him. According to the Superintendent, the security guards at the Meadowlands rely upon and defer to the State Police in criminal matters. The Superintendent concluded that Morales had handled the drugs neglectfully.

The Superintendent additionally stated that he had no doubt that Morales understood the manner in which evidence should be handled. He expressed his disappointment that Morales would try to blame the four security guards for the destruction of the evidence when the guards were doing their job in presenting the matter to Morales. He said that members of the State Police are expected to conduct an appropriate investigation, regardless of the amount of drugs seized. The Superintendent concluded that Morales had undermined the public's trust in the State Police and given the guards and the suspect the impression that the State Police are lazy and "this is how we do business." In addition, the Superintendent found that Morales had brought discredit on himself and the State Police. The superintendent imposed a six-month suspension, two-months of which had already been served, with four-months held in abeyance for one year.

In this appeal, Morales argues that the Superintendent improperly disregarded the ALJ's credibility findings. Morales asserts that a key piece of evidence in the case was a videotape showing Morales with the security guards. The videotape was lost but testimony concerning the tape indicates that it did not show any drugs or an attempt by the security guards to give the drugs to Morales. Morales additionally argues that the guards gave diametrically opposed versions of his involvement in the matter; he did not let the patron leave the racetrack on May 9, 2003; the Division's Internal Affairs Unit concluded that he had performed a proper investigation of the incident; he had twenty- three years of service with the Division and no motive to shun his duties; and the Superintendent's Office distorted the record for arbitrary purposes.

The scope of our review of a final decision of an administrative agency is strictly limited. George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). Our review is restricted to four inquiries: 1) whether the agency's decision is contrary to the State or Federal Constitution; 2) whether the agency's action violates either express or implied legislative policies; 3) whether there is substantial credible evidence in the record as a whole to support the agency's decision; and 4) whether, in applying the law to the facts, the agency clearly erred in reaching a decision that could not reasonably have been made on consideration of the relevant factors. Ibid.

We have considered Morales' contentions in light of these principles of appellate review and we are convinced that there is no basis for our intervention. We affirm substantially for the reasons stated by the Superintendent in his final decision. We add the following comments.

Under N.J.S.A. 53:1-10, the Superintendent has the authority to make rules and regulations for the discipline and control of the State Police, subject to the Governor's approval. By reason of that broad delegation of authority, the Superintendent "has the ultimate responsibility for maintaining discipline among state police officers." In re Carberry, 114 N.J. 574, 578 (1989). The discipline of State troopers "involves the most profound and fundamental exercise of managerial prerogative and policy." State v. State Troopers Fraternal Ass'n, 134 N.J. 393, 417 (1993). Such discipline "implicates not only the proper conduct of those engaged in the most significant aspects of law enforcement, involving the public safety and the apprehension of dangerous criminals, but also the overall effectiveness, performance standards, and morale of the State Police." Id. at 416-17.

We are convinced that the Superintendent's decision in this case was a proper exercise of his disciplinary authority. In our view, there is substantial credible evidence in the record as a whole to support the Superintendent's determination that Morales violated the Division's rules and regulations, and its operating procedures, by failing to investigate the incident and take possession of the CDS found in the restroom at the racetrack on May 9, 2003.

We reject Morales' contention that the Superintendent failed to give sufficient weight to evidence concerning the lost security videotape. According to the testimony concerning that tape, the recording was only twenty-eight seconds long. McDougall testified that he viewed the tape and it did not show that the drugs or any attempt by the guards to hand the drugs to Morales.

Nevertheless, the Superintendent reasonably found that the tape does not refute the charges against Morales, or cast doubt on the testimony of the guards. The tape only shows a brief portion of the conversation between Morales and the guards. While Carlucci is not shown on the tape trying to hand Morales the drugs, Carlucci testified that he did not take the drugs out of his pocket and try to give them to Morales until the patron was allowed to leave the racetrack.

We also find no merit in Morales' assertion that the Superintendent erred by refusing to defer to the ALJ's credibility findings. The Division is a "state agency" under the Administrative Procedure Act, N.J.S.A. 52:14B-2(a), and the Superintendent is the "head" of that agency. Carberry, supra, 114 N.J. at 578. As the "agency head," the Superintendent has the authority to make the final determinations in "contested cases." N.J.S.A. 52:14B-10(c).

Where, as here, a matter is referred to an ALJ for an initial determination, the Superintendent may "adopt, reject or modify" an ALJ's recommended decision. Ibid. The Superintendent may "reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but [must] state clearly [his] reasons for doing so." Ibid. However, an "agency head" may not reject or modify findings of fact by an ALJ on issues of credibility of lay witness testimony unless the findings are found by the agency head to be "arbitrary, capricious or unreasonable" or "not supported by sufficient, competent, and credible evidence in the record." Ibid.

We are satisfied that the Superintendent reasonably exercised his authority under N.J.S.A. 52:14B-10(c) when he found that the ALJ's credibility findings were "not supported by
sufficient, competent and credible evidence in the record." Based on his review of the evidence, the Superintendent reasonably found that Morales' version of the incident was not believable. Although the ALJ had an opportunity to see and hear the witnesses, the Superintendent was not foreclosed from reviewing the transcript of the testimony and determining that the testimony of the guards made more sense than the explanation given by Morales. In this regard, we cannot ignore the expertise of the Superintendent in matters involving the investigation of crime and the handling of evidence.

Moreover, as the Superintendent pointed out in his decision, the ALJ's credibility findings were of limited significance to the ultimate determination in this case. Indeed, the Superintendent's decision is based upon essentially undisputed facts. In his testimony, Morales conceded that the security guards had informed him that they found a white substance in a restroom. Morales admitted that the substance could have been "anything," including heroin or cocaine. Morales conceded that he questioned the patron who was thought to have left the drugs in the restroom but he did not even get his name. It is undisputed that Morales did not take possession of the substance which was later determined to be heroin. In our view, this evidence provides ample support for the Superintendent's determination that Morales violated the Division's rules and regulations, and its operating procedures, by failing to conduct a proper investigation of the incident and failing to take possession of the substance found in the restroom.

We have considered the other contentions raised by Morales and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

According to State Police detective Leonard Hoffman, Fortino previously had problems with Morales and he was a defendant in a lawsuit brought by Morales.

(continued)

(continued)

16

A-1576-05T5

 

February 7, 2007


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