IN THE MATTER OF MARK DINATALE CITY OF TRENTON POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0018-10T1

IN THE MATTER OF

MARK DINATALE,

CITY OF TRENTON

POLICE DEPARTMENT.

________________________________________________________________

December 28, 2011

Submitted December 6, 2011 - Decided

Before Judges Carchman and Baxter.

On appeal from the New Jersey Civil Service Commission, Docket No. CSC-2009-4106.

Furlong & Krasny, attorneys for appellant MarkDiNatale (ScottA. Krasny,on the brief).

Paula T. Dow, Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the brief).

Ruderman & Glickman, P.C., attorneys for respondent City of Trenton Police Department (Steven S. Glickman, of counsel; Mr. Glickman and Vincent M. Avery, on the brief).

PER CURIAM

Appellant Mark DiNatale, a detective in the Trenton Police Department (TPD), appeals from a final decision of the Civil Service Commission (CSC or Commission) concluding that appellant violated departmental rules when he failed to communicate with the TPD Central Command Unit after a motor vehicle stop. In addition, appellant disobeyed orders when he improperly used an individual, who had not been registered, as an informant. In sustaining the findings that appellant had violated TPD departmental rules and regulations 4.4 (Rule 4.4) (attention to duty) and 4.3 (Rule 4.3) (failure to obey orders), the CSC increased the disciplinary penalty imposed by the TPD1 from a thirty-day suspension to a sixty-day suspension. We affirm.

The facts are not in significant dispute.

At approximately 11:00 p.m. on February 12, 2009, C.K. was parked on Bellevue Avenue in Trenton, when appellant approached the car and asked C.K. and her passenger M.W. why they were sitting in the parked car. After admitting they were waiting to buy heroin, appellant enlisted C.K. to make the drug purchase so that he could arrest the dealer. Appellant advised C.K. that she and M.W. would be arrested if she did not cooperate. Appellant's partner also searched M.W. and found needles in his possession.

C.K. followed appellant's instructions to call the dealer, who then refused to come outside because he had seen police officers. C.K. reacted by telephoning appellant to tell him to move his car, and then she again called the drug dealer, who sent out a third-party to make the drug deal. After making the purchase, C.K. drove off without calling appellant as she had been instructed. Appellant called C.K. immediately to ask why she drove off. Soon after, appellant and another patrol car stopped C.K.'s car, recovering the heroin and other drug paraphernalia. C.K. was arrested and taken into custody; she was later released, after being issued two summonses for drug possession. Eventually, the charges against her were dismissed, whereupon she then reported the incident to Internal Affairs.

Appellant did not testify before Internal Affairs. He had previously filed an administrative written report claiming that he had stopped C.K.'s car in connection with a citizen complaint of drug activity in the area. He asserted in the report that he had observed someone running from the car into adjacent row houses as the car quickly exited the area. He also reported that he found heroin and drug paraphernalia in the car.

According to Trenton Police Department Internal Affairs' Detective Jose Pantoja, appellant admitted that he gave C.K. his telephone number in case she agreed to become an informant. Appellant, interviewed by Pantoja, conceded that appellant arrested C.K. later that night and found drugs in her car. Pantoja noted that police department policies barred the use of any confidential informant who was not registered, and that department protocol required a radio communication to report a motor vehicle stop, regardless of whether the car was already parked.

The Administrative Law Judge (ALJ) concluded that appellant should have radioed the command center when he discovered that C.K. was attempting to purchase drugs and drug paraphernalia was found on her passenger. In addition, the ALJ observed that phone calls from appellant to C.K. during the same time period C.K. was calling the drug dealer corroborated C.K.'s testimony that appellant encouraged and authorized C.K. to consummate the drug deal. The ALJ explained that although she was unable to rely on Pantoja's testimony about his interview with appellant because appellant could not be cross-examined, she did not believe appellant's version of events in his report. She concluded that the report did not account for the calls to C.K. during the short period she was calling the drug dealer. The ALJ added that an adverse inference could be drawn from appellant's decision not to testify. The inference was that appellant could not truthfully refute the testimony of the TPD's witnesses.

The ALJ concluded that the TPD had established that appellant had violated departmental rules and protocol when he failed to carry out his duties by not communicating with central command about his encounter with C.K. and disobeyed orders when he used C.K. to consummate a drug deal even though she was not registered as a confidential informant. The ALJ determined that appellant's suspension should be modified from thirty to sixty days.2 On review, the Commission adopted the ALJ's findings of fact and conclusion, and determined the TPD was justified in suspending appellant and agreed with the ALJ that the suspension should be modified to a sixty-day suspension.

On appeal, appellant raises the following issues:

POINT I

THE CHARGE ALLEGING A VIOLATION OF TPD RULE AND REGULATION 4:4 FOR ATTENTION TO DUTY WAS NOT SUSTAINED.

POINT II

THE CHARGE ALLEGING A VIOLATION OF TPD RULE AND REGULATION 4:13 FOR DISOBEDIENCE OF ORDERS WAS NOT SUSTAINED.

POINT III

THE DRAWING OF AN ADVERSE INFERENCE BY THE ADMINISTRATIVE LAW JUDGE WAS ERROR.

POINT IV

THE IMPOSITION OF A 60-DAY SUSPENSION WAS UNWARRANTED.

Our consideration of the issues on appeal requires that we first set forth our standard of review. As we recently observed in Animal Protection League of New Jersey v. Department of Environmental Protection, ____ N.J. Super. ____ (App. Div. 2011):

We will not overturn an administrative action "in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Our role in reviewing agency action is generally limited to determining:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Thurber v. City of Burlington, 191 N.J. 487, 501 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

Furthermore, "we grant administrative agency action a 'strong presumption of reasonableness.'" Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006) (quoting Newark v. Natural Res. Council, 82 N.J. 530, 539 (1980)). An agency's findings of fact "are considered binding on appeal when supported by adequate, substantial and credible evidence." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

. . . .

Particularly relevant here, "the choice of accepting or rejecting testimony from witnesses resides with the administrative agency, and so long as that choice is reasonably made it is accorded deference on appeal." In re Young, 202 N.J. 50, 70-71 (2010) (citations omitted).

[Id., slip op. at 8-11.]

We will affirm an agency's determination if the evidence and law supports the decision even if we question the wisdom of the decision or would have reached a different result. In re Herrmann, 192 N.J. 19, 27-29 (2007).

Appellant asserts that Rule 4.4 does not mandate that appellant call in to the Command Center to advise of the motor vehicle stop. The proofs are to the contrary.

According to Pantoja, TPD's procedures require an officer to radio the Command Center to report a motor vehicle stop notwithstanding that the vehicle may have already been parked. Although not contained in the language of the Rule, the procedure is a matter of little more than common sense and a protection for the safety of law enforcement officers.

According to Pantoja, who was an eleven-year veteran of the TPD and familiar with the policies regarding confidential informants, the TPD policy barred the use of a confidential informant who was not registered with a supervising officer.

Both the reporting policy as well as the policy regarding confidential informants, as presented by Pantoja, stood unrefuted. We are satisfied that the CSC had sufficient credible evidence to support its conclusion as to appellant's culpability.

We reach the same result regarding the penalty imposed. The violations established before the ALJ and the CSC were significant. The imposition of a sixty-day suspension appears warranted under all of the circumstances. We will uphold the CSC's determination as to penalty unless the penalty is so disproportionate to the offense as to be "shocking to one's sense of fairness." In re Carter, 191 N.J. 474, 484 (2007).

The penalty imposed here does not "shock our sense of fairness" and was appropriate.

Finally, appellant challenges the ALJ's conclusion that she could draw an adverse inference from appellant's failure to testify. We need not reach the issue. We are satisfied that even absent such an inference, the overwhelming proofs support the findings of fact and conclusions of law. The only impact that need be considered from appellant not testifying is that the proofs stand unrefuted and support the findings of violations of the Rules as well as the penalty imposed.

1 Although the City of Trenton is appellant's employer, for ease of reference all references will be made to TPD.

2 At the TDP departmental hearing, after finding a violation, the hearing officer imposed a suspension of thirty days.