INTHE MATTER OF COREY CORBO UNION CITY POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-5610-15T3



IN THE MATTER OF COREY CORBO,
UNION CITY POLICE DEPARTMENT.
_____________________________

           Argued November 28, 2017 – Decided March 1, 2018

           Before Judges Fasciale and Moynihan.

           On appeal from the Civil Service Commission,
           Docket No. 2015-2471.

           Steven J. Kaflowitz argued the cause for
           appellant (Caruso Smith Picini, PC, attorneys;
           Steven J. Kaflowitz, on the letter brief).

           Kenneth B. Goodman argued the cause for
           respondent (O'Toole Fernandez Weiner Van Lieu,
           LLC, attorneys; Kenneth B. Goodman, on the
           brief).

PER CURIAM

     Appellant Corey Corbo appeals from a final agency decision

by the Civil Service Commission (CSC) upholding an administrative

law judge's (ALJ) initial decision removing him as a Union City

police officer because he ingested cocaine.             He contends the CSC

acted without a quorum and utilized unreliable hearsay to prove
the charges against him in violation of the residuum rule.1              We

agree that no competent evidence was adduced against Corbo and

reverse the CSC's decision.

       We apply the standard of review recently announced in In re

Hendrickson, 
451 N.J. Super. 262, 272-73 (App. Div.), certif.

granted, 
231 N.J. 143 (2017),2 and will, in our limited role,

affirm an ALJ's findings if "they are supported by substantial

credible evidence in the record," but afford no deference to the

ALJ's    legal   conclusions   and   review   them   de   novo.    As    in

Hendrickson, the ALJ's decision was deemed adopted3 because the

CSC, for reasons beyond its control, could not muster a quorum.4





1 N.J.A.C. 1:1-15.5.
2
  Hendrickson was published after the parties submitted their
respective briefs.
3
  Although we reviewed Hendrickson, 
451 N.J. Super. at 266, under

N.J.S.A. 52:14B-10(c), and, in this case, consider 
N.J.S.A.
40A:14-204 – a statute specific to police discipline cases – both
statutes require that an ALJ's decision be reviewed within forty-
five days, and, unless the agency acts, the ALJ's decision is
deemed adopted.
4
  As noted in Hendrickson, 
451 N.J. Super. at 268 n.4, after the
terms of two CSC members ended in December 2015, the CSC was left
with one member. The CSC cancelled all meetings from January 2016
until October 19, 2016, when it resumed meetings after new members
were appointed. Ibid. Here, the CSC's July 25, 2016 letter to
the parties advised them it did not have a quorum and – not having
obtained both parties' consent for additional extensions, N.J.A.C.
1:1-18.8(e), and declining to extend the time for good cause,

N.J.S.A. 40A:14-204 – the ALJ's initial decision was deemed final.

                                     2                            A-5610-15T3
But without the CSC's review, there is no extant "particular and

superior expertise in the legislative arena in which [the agency]

functions." Id. at 273.            Thus we apply, not our usual "highly

deferential review of agency decisions," but the less deferential

bench trial standard of review.             Ibid.

     We determine Corbo's argument that the CSC's decision was

invalid because it acted without a quorum is without sufficient

merit to warrant discussion in a written opinion.                        R. 2:11-

3(e)(1)(E).       The CSC did not act without a quorum.               The ALJ's

decision    was    deemed    adopted   pursuant       to   
N.J.S.A.   40A:14-204

without any action by the CSC.

     The incident that triggered the City's action against Corbo

began when police and emergency medical personnel responded to a

residence in Monroe Township. Monroe police officer Jamey DiGrazio

testified    that    medical      personnel,    who    were   upstairs     in    the

residence performing CPR on an unconscious and intubated Corbo,

told him that Corbo likely overdosed.                 DiGrazio went downstairs

and engaged Corbo's then-girlfriend, Jessica Garcia – who at the

time,   like      Corbo,    was   a   Union    City     police   officer     –    in

conversation.       DiGrazio described Garcia as "visibly upset" and

"worked up, anxious, you know, breathing more heavily" during his

initial conversation with her during which he gathered pedigree

information.       DiGrazio left Garcia to return upstairs and, after

                                        3                                  A-5610-15T3
observing Corbo, went back downstairs, sat with Garcia, told her

Corbo's "health was failing," and asked her if she had information

about anything Corbo may have ingested "that may help paramedics

give him better care."     Garcia told him that Corbo "did a bump

about five days ago" and clarified that it was a bump of cocaine.5

     The City's proofs presented before the ALJ against Corbo

included Garcia's statements introduced through DiGrazio, hospital

records, and a laboratory report containing the results of an

immunoassay   screening    test   performed      at   the   hospital       that

indicated Corbo had cocaine in his system.            Garcia's statements

and the test results were both hearsay.         Although the City was not

bound by the rules of evidence in the administrative proceeding,


N.J.S.A.   52:14B-10(a),   and    hearsay   –    subject    to   the     ALJ's

discretion – was admissible, N.J.A.C. 1:1-15.5(a), "some legally

competent evidence must [have] exist[ed] to support each ultimate

finding of fact to an extent sufficient to provide assurances of

reliability and to avoid the fact or appearance of arbitrariness,"

N.J.A.C. 1:1-15.5(b).

           Hearsay may be employed to corroborate
           competent proof, or competent proof may be
           supported or given added probative force by
           hearsay testimony. But in the final analysis
           for a court to sustain an administrative
           decision, which affects the substantial rights

5
  DiGrazio stated he understood a "bump" to mean a "snort of a
drug."

                                   4                                   A-5610-15T3
            of a party, there must be a residuum of legal
            and competent evidence in the record to
            support it.

            [Weston v. State, 
60 N.J. 36, 51 (1972).]

     The ALJ, in ruling Garcia's statement was admissible as an

excited   utterance,        misapprehended    N.J.R.E.   803(c)(2),    "[t]he

essential elements of [which] are 1) '[a] statement relating to a

startling event or condition[,]' 2) 'made while the declarant was

under the stress of excitement caused by the event or condition[,]'

and 3) 'without opportunity to deliberate or fabricate.'"               State

v. Branch, 
182 N.J. 338, 365 (2005) (third alteration in original)

(quoting N.J.R.E. 803(c)(2)).          Garcia's statement did not relate

to Corbo's medical distress, but to his ingestion of "a bump" of

cocaine five days prior to her statement.                Although DiGrazio

described   Garcia     as    upset   and   anxious   during   their   initial

conversation, he did not describe her condition during the later

conversation    when        she   disclosed   Corbo's    prior   ingestion.

Moreover, Garcia was not under stress or excitement caused by the

ingestion; any such condition – if it existed – was caused by the

medical emergency.      And, even though DiGrazio said he told Garcia

about Corbo's failing health, we do not know if Garcia perceived

Corbo's condition as described by DiGrazio; she was downstairs the

entire time DiGrazio was in the residence.           Further, time passed;

although we do not know the time between their first and second

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conversations, we do know Garcia talked to DiGrazio "about five

days" after she said Corbo ingested cocaine.          The ALJ's confusing

statement   that   she   did   "not   discount   it   for   the   additional

statement [Garcia] made that it occurred five days earlier because

her instinct to guard for self-defense could occur during the same

excited utterance," does not account for the fact that there was

certainly time to deliberate, reflect or misrepresent, see State

v. Cotto, 
182 N.J. 316, 330-31 (2005) (holding victims' statements

made to police fifteen to twenty minutes after a robbery, burglary

and assault should not have been admitted because the declarants

had "at least several minutes to reflect" and the statements

narrated past occurrences not coincident with the robbery).              Also

compelling is that the basis for Garcia's knowledge about the

ingestion was never established, further calling into question the

statement's reliability.

     The ALJ, without explanation except to agree with the argument

she read in respondent's brief, also held Garcia's statement was

admissible under N.J.R.E. 803(c)(4) and 803(c)(25).

     We determine the statement was not admissible under N.J.R.E.

803(c)(4) because it was not made by the patient, thus undermining

the rationale for the rule that a patient – with first-hand

information about his or her condition – would believe that a

physician's effective treatment depends on the accuracy of that

                                      6                              A-5610-15T3
information.     R.S. v. Knighton, 
125 N.J. 79, 87 (1991).            Further,

statements concerning causes of symptoms are usually not admitted

under this rule.         Cestaro v. Ferrara, 
57 N.J. 497, 501 (1971).

This caution is particularly fitting in this case because, again,

the source of Garcia's purported knowledge was never made known.

     The ALJ made no findings to buttress her ruling that Garcia's

statement was against Garcia's interest, simply concluding that

Garcia's     statement    was   "so   far   contrary   to   [her]   pecuniary,

proprietary, or social interest, or so far tended to subject [her]

to civil or criminal liability . . . that a reasonable person in

[her] position would not have made the statement unless [she]

believed it to be true."         N.J.R.E. 803(c)(25).        We therefore do

not know what evidence in the record would support such a finding,

and conclude no sufficient basis was established to justify the

admission of the statement under that rule.            See In re Tr. Created

by Agreement Dated Dec. 20, 1961, 
399 N.J. Super. 237, 253-54

(App. Div. 2006), aff'd o.b., 
194 N.J. 276 (2008) (stating although

a judge may rely upon reasons expressed by a party in issuing a

decision, she must make "clear the extent of [her] agreement with

and reliance on [the] proposed findings of fact and conclusions

of   law,"    demonstrating      that   she   "carefully     considered     the

evidentiary record and did not abdicate [her] decision-making

responsibility").

                                        7                              A-5610-15T3
     We disagree with Corbo's argument that the medical reports

were inadmissible because they were unauthenticated. N.J.R.E. 901.

Although no witness authenticated the medical records, they were

proved to be genuine and authentic by Union City police lieutenant

Anthony Facchini's testimony that he ordered Corbo to produce the

medical records; saw Corbo obtaining records in the hospital where

Facchini was also attempting to obtain them; and that one of

Corbo's prior attorneys delivered the medical records the next

morning.   See Konop v. Rosen, 
425 N.J. Super. 391, 411 (App. Div.

2012) (acknowledging a long history of admitting documents that

have been proved prima facie genuine and authentic).6




6
  The ALJ noted Corbo did not object to the records at least ten
days prior to the hearing and they were therefore presumed
authentic. N.J.A.C. 1:1-15.6 provides:

           Any writing offered into evidence which has
           been disclosed to each other party at least
           [ten] days prior to the hearing shall be
           presumed authentic. At the hearing any party
           may raise questions of authenticity. Where a
           genuine question of authenticity is raised the
           judge may require some authentication of the
           questioned document. For these purposes the
           judge may accept a submission of proof, in the
           form of an affidavit, certified document or
           other similar proof, no later than [ten] days
           after the date of the hearing.

Corbo's counsel raised issues of authenticity for the first time
at trial, but the ALJ did not require any further submission.

                                 8                          A-5610-15T3
       We   previously    recognized         the   business    records     hearsay

exception, N.J.R.E. 803(c)(6), "routinely permits the admission

of medical records."          Konop, 
425 N.J. Super. at 403.         There must

be proof, however, of three conditions:

            First, the writing must be made in the regular
            course of business.      Second, it must be
            prepared within a short time of the act,
            condition or event being described. Finally,
            the source of the information and the method
            and circumstances of the preparation of the
            writing   must  justify   allowing   it   into
            evidence.

            [State v. Matulewicz, 
101 N.J. 27, 29 (1985);
            see also Konop, 
425 N.J. Super. at 403.]

       Inexplicably, no hospital personnel – or any other witness –

testified that the medical records met any of the requisite

conditions.    Absent any qualifying evidence, the records were not

properly admitted as business records.              The record is also bereft

of any proofs regarding the admissibility of the laboratory results

embedded in those hospital records. Our Supreme Court, considering

the    admissibility     of    a   forensic    chemist's      laboratory    report

identifying    a   substance       as   marijuana     under    the   predecessor

business records rule,7 instructed:

            [P]roofs should be adduced to reflect the
            relative    degrees   of    objectivity    and
            subjectivity involved in the procedure; the
            regularity with which these analyses are done;
            the routine quality of each analysis; the


7 Evid. R. 63(13).

                                         9                                 A-5610-15T3
            presence of any motive to single out a
            specific analysis for the purpose of rendering
            an    untrustworthy     report,     and    the
            responsibility of each State Police chemist
            to make accurate and reliable analyses.

            [Matulewicz, 
101 N.J. at 30.]

The mentioned factors are not exhaustive, and a judge may require

other proof regarding the trustworthiness of the evidence.        Id.

at 31.     The ALJ did not perpend the laboratory results under the

announced standard.

       Both items of evidence utilized to discipline Corbo were

hearsay.    Hearsay cannot buttress hearsay under the residuum rule.

In that no competent evidence was introduced to prove Corbo's

ingestion of cocaine, we are compelled to reverse the decision

removing him as a Union City police officer.

       Finally, we determine the City's argument that an adverse

inference against Corbo should have been drawn because he did not

testify is without sufficient merit to warrant discussion here.

R. 2:11-3(e)(1)(E).     The record does not indicate the City gave

notice to the court and opposing counsel of its request to invoke

Clawans;8 it first raised the issue in its written summation and

the ALJ did not rule on it.     See Clawans, 
38 N.J. at 172 (noting

"[t]he better practice . . . is for the party seeking [an adverse



8
    State v. Clawans, 
38 N.J. 162 (1962).

                                 10                          A-5610-15T3
inference charge] to advise the trial judge and counsel out of the

presence of the jury, at the close of his opponent's case, of his

intent to so request").

     Reversed.




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