JOHN PHILIPPAKOS v. BOROUGH OF MOUNTAINSIDE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0661-10T1

JOHN PHILIPPAKOS,

Plaintiff-Appellant,

v.

BOROUGH OF MOUNTAINSIDE,

Defendant-Respondent.

_____________________________________________

January 17, 2012

Argued April 4, 2011 Decided

Before Judges A. A. Rodr guez and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-748-10.

Patrick P. Toscano, Jr., argued the cause for appellant (The Toscano Law Firm, attorneys; Mr. Toscano, on the brief).

Arthur R. Thibault, Jr., argued the cause for respondent (Apruzzese, McDermott, Mastro & Murphy, attorneys; Mr. Thibault, of counsel and on the brief).

PER CURIAM

John Philippakos appeals from the Law Division's September 28, 2010 final order, dismissing his complaint challenging his removal from employment as a Borough of Mountainside Police Officer. We affirm.

These facts are undisputed. On September 12, 2007, while Philippakos was on duty, he responded to a call that young people were congregating at the Deerfield School in Mountainside. This school had been a gathering place for young people underage to drink and vandalism was frequently reported in that area after dark. Philippakos, accompanied by Sergeant Andrew Sullivan, Corporal Michael Capobianco and Officer Michael Perotta, arrived at the school area at dusk. Philippakos turned on his flashlight, identified himself as a police officer and advised a group of young men not to run. Two did. Philippakos chased one of the young men, fifteen-year-old M.C., across a field, over a brook, and onto a lighted parking lot. M.C. was handcuffed and escorted back to the area from which he ran. Upon his return, there was a laceration to M.C.'s head.

At this point, the versions of Philippakos and M.C. diverge. M.C. claims that Philippakos hit him in the head with his flashlight, causing the laceration. Philippakos claims that the laceration on the back of the head was caused when M.C. fell while crossing the brook.

M.C. and four other young men were taken to the police station. EMTs were called to care for M.C.'s injuries. At the station, M.C. told Sergeant Sullivan that Philippakos had caused the laceration after striking him on the head with a flashlight.

After an internal investigation, the Mountainside Police Department issued several disciplinary charges against Philippakos, including conduct unbecoming to a public employee; untruthfulness; neglect of duty and/or failure to perform duties; assault on two juvenile civilians; violation of the law enforcement code of ethics; and violation of a number of department rules and regulations.

Following a September 10, 2009 administrative hearing, Retired Police Chief Robert Verry, the hearing officer, rendered a report finding Philippakos's version not to be credible. On January 20, 2010, Philippakos was terminated from his position.

Philippakos requested a hearing pursuant to N.J.S.A. 40A:14-150, which permits review "de novo on the record below" in the Superior Court of a disciplinary conviction in a non-civil service municipality. See In re Phillips, 117 N.J. 567, 578-79 (1990). Judge Cassidy reviewed the transcripts of the administrative hearing and the documentary evidence presented to the hearing officer. She found that:

Philippakos frequently altered his account of how [M.C.] was injured. Though [M.C.'s] only obvious injury was to his head, Philippakos' admission to Sergeant Sullivan that he struck [M.C.] (on the night of the incident without any additional specifics), could only be interpreted to mean that he caused that laceration. Thereafter, he 'clarified' his version to state he struck him on his left side. However, his version of striking him on the side as the result of a perception of danger also changed from that evening and throughout his version of the events. His testimony was also unclear as to how [M.C.] fell, how wet he was, the extent of his injuries, whether or not he had to wipe down his car (removing [M.C.'s] blood), the conversation he had with [M.C.'s] mother and his intent to intimidate [D.A.] The inconsistencies do not end there. Philippakos initially denied the use of profanity and then admitted to using profanity in the criminal trial. While counsel argues that the use of profanity, especially in the heat of a chase and during an arrest, is permissible, this misses the point. It is the fact that Philippakos continually altered his version of events that cause concern and formed the basis for the hearing officer's decision with regard to the disciplinary charges and also for this court's findings.

Further proof of Philippakos' untruthfulness during this process is the fact that during his psychological fitness evaluation, plaintiff provided inaccurate information to the examining psychologist, stating that he had maybe one or two complaints filed against him when he in fact had numerous complaints lodged against him throughout his ten years on the force. This is yet another example of why plaintiff's veracity is at issue.

Finally, an analysis of various statements filed by the other officers (as well as some of the juveniles involved) shows a consistency in their version of the facts that contradict many of Philippakos' statements on his actions and the sequence of events.

Based on these findings, the judge affirmed the termination anddismissed the complaint.

On appeal, Philippakos contends that the Law Division's order "must be reversed because substantial credible evidence fails to support it." We disagree.

When error in a factfinding of a judge sitting without a jury is alleged, the scope of appellate review is limited. We will only decide whether the findings made could reasonably have been reached on "substantial" credible evidence present in the record, considering the proof as a whole. Phillips, supra, 117 N.J. at 579. We are not "permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1998)).

Applying that standard here, and after a careful review of the arguments and the proofs, we determine that the judge's decision is supported by substantial credible evidence on the record as a whole. Phillips, supra, 117 N.J. at 579. Thus, we affirm substantially for the reasons expressed by Judge Cassidy in her September 28, 2010 written decision.

A