STEPHANIE GERONIMO v. ALLAN SLATTERY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STEPHANIE GERONIMO,

Plaintiff-Appellant,

v.

ALLAN SLATTERY, FRANK SPRAGUE,

POLICE OFFICER DORAN, POLICE OFFICER

DONAHUE, ROBERT KAKOLESKI, in his

official capacity as Acting Director

of the Jersey City Police Department,

MARIA PAGAN, in her official capacity

as Administrator of the Jersey City

Municipal Court,

Defendants-Respondents.

____________________________________________

September 29, 2015

Argued September 16, 2015 Decided

Before Judges Yannotti and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-640-13.

Jeffrey A. Bronster argued the cause for appellant.

Stevie D. Chambers, Assistant Corporation Counsel, argued the cause for respondents (Jeremy Farrell, Corporation Counsel, attorney; Mr. Chambers, on the brief).

PER CURIAM

Plaintiff Stephanie Geronimo appeals from the June 17, 2014 order of the Law Division dismissing her complaint with prejudice. For the reasons that follow, we affirm.

On March 11, 2011, Geronimo,1 who was then a twenty-year-old college student living with her father in Jersey City, attempted to burn her initials into her leather jacket using a lighter. Geronimo briefly left the home and when she returned, the home was ablaze. Geronimo does not dispute that her actions caused substantial fire damage to her father's building and an adjoining structure.

The fire was investigated by the Jersey City Police (JCPD) and Fire (JCFD) Departments. On April 13, 2011, JCFD Battalion Chief Steven McGill2 filed a complaint-warrant charging Geronimo with one count of criminal mischief. Probable cause was based on video statements by investigating firefighters, statements by Geronimo, and evidence recovered from the scene. On April 14, 2011, a judicial officer issued the warrant and set bail at $20,000, with a $2,000 cash alternative.

On May 10, 2011, Geronimo was arrested by JCPD Officers Doran and Donohue and remained incarcerated until she posted bail. A grand jury returned a one-count indictment charging Geronimo with fourth-degree criminal mischief, but the charge was dismissed for failure to properly instruct the grand jury. A second indictment was returned charging Geronimo with third-degree criminal mischief, third-degree arson, and third-degree aggravated assault. On January 22, 2013, Geronimo pled guilty to criminal mischief, a disorderly persons offense. N.J.S.A. 2C:17-3.

On February 1, 2013, Geronimo filed a complaint, naming as defendants the arresting officers, Doran and Donahue, Lieutenant Frank Sprague of the JCPD, Detective Allan Slattery, who investigated the matter, Maria Pagan, Administrator of the Jersey City Municipal Court, and Robert Kakoleski, Acting Director of the JCPD. The complaint asserted the following claims: false arrest and false imprisonment under 42 U.S.C.A. 1983, based on defendants' violation of Rule 3:3-1(c); violations of the New Jersey Civil Rights Act; False Imprisonment; and Negligent Infliction of Emotional Distress.

On defendants' motion, the matter was removed to federal district court. On January 16, 2014, U.S. District Judge Jose L. Linares granted summary judgment to defendants as to the federal 1983 claims and remanded the remaining claims to the Law Division. Judge Linares held, "to the extent that any Defendant violated . . . Rule 3:3-1(c), such a violation, in and of itself, is not actionable under section 1983."

After the remand, Judge Barry P. Sarkisian granted defendants' motion to dismiss Geronimo's complaint on June 17, 2014. On appeal, Geronimo raises the following points

point I

the district court's dismissal of [GERONIMO]'s federal civil rights claim is irrelevant to her claim under new jersey's civil rights act.

point ii

the court below failed to understand the intricacies of new jersey's bifurcated arrest process, and therefore misapplied the concept of probable cause.

point iii

the court below erroneously interpreted new jersey case law, and incorrectly held that a violation of rule3:3-1 could not support [GERONIMO]'s claim of a violation of her rights under the new jersey constitution.

a. the Dangerfielddecision

b. the conn[O]rdecision

c. the cases cited by the court

below

(1)the sanduccidecision

(2)the abdeodecision

d. the inapplicability of

qualified immunity

point iv

neither [GERONIMO]'s original indictment, her second indictment, or her plea of guilty to a disorderly person's offense is evidence of the existence of the requisite probable cause.

a. stephanie's guilty plea

b. the first indictment

c. the second indictment

(1) the state cannot create

probable cause

retroactively

(2) an indictment is not

conclusive proof of

probable cause

(3) the rebuttal of the prima

facie case

Geronimo claims that Rule 3:3-1 required the police to issue a summons rather than a warrant, and that her arrest and subsequent detention violated her constitutional rights. Rule 3:3-1(c) provides guidance as to when a summons or warrant should be issued

A summons rather than an arrest warrant shall be issued unless

(1) the defendant is charged with murder, kidnapping, aggravated manslaughter, manslaughter, robbery, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, second degree aggravated assault, aggravated arson, arson, burglary, violations . . . that constitute first or second degree crimes, any crime involving the possession or use of a firearm, or conspiracies or attempts to commit such crimes;

(2) the defendant has been served with a summons and has failed to appear;

(3) there is reason to believe that the defendant is dangerous to self, other persons, or property;

(4) there is an outstanding warrant for the defendant;

(5) the defendant's identity or address is not known and a warrant is necessary to subject the defendant to the jurisdiction of the court; or

(6) there is reason to believe that the defendant will not appear in response to a summons.

Defendants have not suggested that any of the exceptions contained in (2) through (6) apply here. Even if we assume that Rule 3:3-1 required the issuance of a summons rather than an arrest warrant for the charge of criminal mischief, and that the police erred in failing to follow the rule's requirement, plaintiff did not suffer a violation of her civil rights. See Sanducci v. City of Hoboken, 315 N.J. Super. 475, 484-85 (App. Div. 1998).

In Sanducci, the plaintiff was arrested after a physical altercation with three relatives. Id. at 479. The plaintiff and her relatives were all charged with simple assault, but the plaintiff was also charged with stalking based on a complaint by one of the relatives. Ibid. The charges against plaintiff were subsequently dismissed. Ibid. Plaintiff conceded that the police had probable cause to arrest her for simple assault, but claimed that her arrest and detention on the charge of fourth-degree stalking was not justified, and that the police violated her constitutional rights by failing to issue a summons rather than a warrant and by issuing a warrant without the intervention of a judicial officer. Id. at 480, 483.

We noted that the police erred by issuing a complaint-warrant because the plaintiff was charged with stalking and not one of the more serious offenses listed in Rule 3:3-1(b)(1) or Rule 3:4-1(b). Id. at 484. Nevertheless, we found that "the failure to issue a complaint-summons rather than a complaint-warrant did not violate a right protected under the Civil [R]ights Act." Id. at 485.

Geronimo relies on Connor v. Powell, 162 N.J. 397 (2000), and State v. Dangerfield, 339 N.J. Super. 229 (App. Div. 2001), in arguing that a violation of Rule 3:3-1 can form the basis of a civil rights action. We find that reliance misplaced as both cases are clearly distinguishable.

In Connor, the plaintiff was supervising a bingo game when she noticed the defendant engaged in illegal gambling. 162 N.J. at 401. The plaintiff warned the defendant to stop and they exchanged words before the defendant struck the plaintiff several times with a wooden chair. Id. at 402. When the police responded, the defendant claimed she acted in self-defense as the plaintiff had threatened her with a fork. Ibid. The defendant was charged with simple assault, issued a summons, and released, while the plaintiff was charged on a complaint-warrant with aggravated assault and possession of a dangerous weapon, a fork. Id. at 403. The plaintiff was jailed and although bail was set at $350, she was not informed of it, and remained incarcerated for more than twenty-four hours. Id. at 404-05. The charges against the plaintiff were downgraded and she was eventually acquitted after trial in municipal court. Id. at 405.

The plaintiff filed a complaint against the defendant, four Newark police officers, and the City of Newark, alleging false arrest, false accusation, false imprisonment, and malicious prosecution in violation of her federal constitutional rights under 42 U.S.C.A. 1983. Ibid. The trial court found that the police had probable cause to arrest the plaintiff and dismissed her complaint. Id. at 407. We affirmed, finding that the police could have reasonably believed that probable cause existed based on the facts as known to them. Id. at 407-08.

The Supreme Court reversed, finding that "no prudent police officer reasonably could have believed that plaintiff possessed a dangerous weapon or used it to assault Powell." Id. at 411.

In Dangerfield, the defendant was sitting on a bicycle near a housing complex when two plainclothes police officers approached him. 339 N.J. Super. at 232. The defendant rode away and the officers gave chase and detained him. Ibid. When the police asked the defendant why he rode off, he gave no reason. Ibid. Without further inquiry, the police arrested the defendant for the petty disorderly persons offense of defiant trespass. Id. at 232-33. Cocaine was seized from the defendant's pocket after his arrest. Id. at 233.

The trial court suppressed the drugs finding that the defendant came to the housing complex to visit his son and was not a trespasser. Id. at 233-36. We granted the State's motion for leave to appeal and affirmed, finding the officers lacked probable cause to arrest the defendant. Id. at 238.

We also noted "the emerging modern policy favoring the issuance of citations and summonses over custodial arrests for minor offenses." Ibid. (internal quotation marks and citations omitted). Citing Rule 3:3-1, we concluded that "[u]pon his arrest for this minor offense, defendant was presumptively entitled to be released upon issuance of a summons, rather than being arrested." Id. at 240.

Both Connor and Dangerfield involved arrests where the police lacked probable cause. In this case, Geronimo concedes that probable cause existed for the criminal charge. Indeed, the Connor court, quoting Sanducci, held that "even if a police officer erred in issuing a complaint-warrant, that 'does not constitute a per se violation of plaintiff's constitutional rights.'" Connor, supra, 162 N.J. at 410 (quoting Sanducci, supra, 315 N.J. Super. at 485) (emphasis omitted).

We agree with Judge Sarkisian that the wrongful issuance of a complaint-warrant, without more, does not constitute a violation of plaintiff's constitutional rights.

Affirmed.

1 Because plaintiff Geronimo was a defendant in the underlying action, we refer to her by name to avoid confusion.

2 In his findings accompanying the June 17, 2014 order, the Law Division judge indicated that the complaint was filed by Lieutenant Frank Sprague of the JCPD. The complaint-warrant lists McGill as the complaining witness and Sprague as the person administering the supporting oath. Sprague was named as a defendant in plaintiff's complaint. McGill was not.