GARY STOLINSKI v. STATE OF NEW JERSEY, DIVISION OF STATE POLICE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2412-07T32412-07T3

GARY STOLINSKI,

Appellant,

v.

STATE OF NEW JERSEY, DIVISION

OF STATE POLICE,

Respondent.

________________________________________________

 

Argued October 16, 2008 - Decided

Before Judges Cuff and Fisher.

On appeal from a final agency decision of the Division of State Police.

Shirley Naylor argued the cause for appellant (Chance & McCann, attorneys; Kevin P. McCann and Ms. Naylor, on the brief).

Tamara L. Rudow, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Rudow, on the brief).

PER CURIAM

In this appeal, we consider whether Gary Stolinski, a New Jersey State Trooper, was entitled to an award of counsel fees, pursuant to N.J.S.A. 53:1-30, as a result of having to defend against an indictment charging official misconduct, credit card fraud and identity theft. We conclude that N.J.S.A. 53:1-30 does not provide support for Stolinski's claim because the allegations of the indictment were not "directly related to [his] lawful exercise of police powers in the furtherance of official duties."

The facts are clear and undisputed. On July 15, 2005, Stolinski was indicted and charged with official misconduct, credit card fraud and identity theft based on the allegation that he used a state police computer to make online credit card applications through the use of false information and by assuming the identity of others. After being indicted, Stolinski was suspended from the force without pay.

The indictment was dismissed on December 12, 2005, and Stolinski was reinstated and reimbursed for the pay withheld during his suspension. Stolinski then demanded reimbursement for the counsel fees he expended in defending against the indictment. After receiving no response, Stolinski filed a verified complaint in the trial court on August 1, 2007, seeking a judgment in the amount of the legal fees he had incurred. On December 6, 2007, the trial judge concluded that the complaint actually sought review of agency action or inaction, and transferred the action to this court.

On December 17, 2007, the Attorney General's Office wrote to Stolinski's counsel to advise that the request for the payment of legal fees incurred in seeking back pay would be honored. However, the Division rejected the remaining aspects of Stolinski's request, asserting there was no statutory basis for the reimbursement of attorney fees associated with the defense of the criminal charges, or for responding to the administrative disciplinary charges, or for seeking the expungement of his criminal record.

The statute upon which the claim for fees is based leaves no doubt that a law enforcement officer is entitled to be reimbursed only for those fees incurred "in an action or legal proceeding arising out of or directly related to the lawful exercise of police powers in the furtherance of official duties." N.J.S.A. 53:1-30. In considering the scope of this statute, we have previously held that a police officer was not entitled to an award when it was alleged that, while in uniform and on duty, and having been directed to guard a drug dealer's vehicle housed in a police garage, the officer took $200 worth of cocaine from the vehicle's trunk. Bruno v. City of Atlantic City, 239 N.J. Super. 469, 472-73 (App. Div.), certif. denied, 122 N.J. 165 (1990). Although Bruno was acquitted of the criminal charges stemming from that conduct, we held, in rejecting his claim for fees:

There is nothing about the alleged theft of illegal drugs which would suggest that it constituted the lawful exercise of police powers in the furtherance of official duties. As we indicated with respect to the related conspiracy and misconduct charges common to the other officers, the infractions alleged cannot even arguably be said to arise from the lawful exercise of police powers and the furtherance of official duties of the officers.

[Id. at 474-75.]

Here, there is no question but that the charges brought against Stolinski did not "aris[e] out of or directly relate[] to the lawful exercise of police powers in the furtherance of official duties." N.J.S.A. 53:1-30. Stolinski was alleged to have used a state police computer to make false credit card applications. Whether the allegations could or could not be substantiated, it is clear that he was not charged with conduct in furtherance of his official duties on that occasion.

We conclude that the Division's final agency decision was neither arbitrary, capricious nor unreasonable, In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Rahway State Prison, 39 N.J. 556, 562 (1963), because it was based upon a correct understanding of N.J.S.A. 53:1-30 and an accurate application of its terms to the allegations contained in the indictment.

Affirmed.

The final agency decision also correctly rejected out of hand Stolinski's frivolous argument, unfettered by legal citation, that the statute entitled him to an award of fees incurred in connection with an action brought to expunge his criminal record. This argument is wholly without merit and does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

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A-2412-07T3

October 28, 2008