Opinion
DOCKET NO. A-6267-11T2
03-06-2014
CHARLES STARK, Plaintiff-Appellant, v. BOROUGH OF PALISADES PARK, MAYOR JAMES ROTUNDO, COUNCIL MEMBERS, FRANK DONOHUE, JASON KIM, JUNG CHUL LEE, CYNDY PIRRERA, HENRY RUH, JOSEPH TESTA, PALISADES PARK POLICE DEPARTMENT and CHIEF OF POLICE BENJAMIN RAMOS, Defendants-Respondents.
Law Offices of Albert H. Wunsch, III, attorneys for appellant (Mr. Wunsch and Paul A. Krauss, on the brief). Law Offices of John L. Schettino, attorney for respondents (Joseph R. Mariniello, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Harris, and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8770-11.
Law Offices of Albert H. Wunsch, III, attorneys for appellant (Mr. Wunsch and Paul A. Krauss, on the brief).
Law Offices of John L. Schettino, attorney for respondents (Joseph R. Mariniello, on the brief). PER CURIAM
Plaintiff Charles Stark appeals from the August 14, 2012 order of the Law Division affirming the findings and recommendations of a hearing officer, and accepted by the Borough of Palisades Park (Borough), terminating plaintiff's employment as a police officer on charges of committing domestic violence against his wife, conducting an extramarital affair while on duty, and providing untruthful answers during an internal affairs investigation. The Law Division found that plaintiff had violated the rules and regulations of the Palisades Park Police Department (PPPD) and engaged in conduct unbecoming a police officer. The court also upheld the sanction of dismissal.
On appeal, plaintiff argues that the court erred (1) by failing to apply a de novo standard of review; (2) by admitting a recorded statement of plaintiff's wife as an excited utterance; (3) by refusing to impose progressive discipline; (4) by relying on hearsay to find plaintiff guilty of domestic violence; and (5) by making findings that were against the weight of the evidence. We reject these arguments and affirm.
I.
Charles Stark joined the PPPD in May 1990 as a special officer, and became a dispatcher before he was hired as a patrol officer in June 2001. In 2005, he married M.V.S., with whom he previously had a daughter, A.S.
In 2006, plaintiff began an extramarital relationship with D.P., a twenty-two year old employee of the Borough. The affair ended after about two months. In July 2007, D.P. told M.V.S. about the affair. In 2009, D.P. rekindled the affair with plaintiff and he began to visit her home while he was on duty. Plaintiff visited D.P. approximately forty times, staying anywhere from a few minutes to hours.
When D.P. attempted to end the affair, plaintiff continued to call her, often using blocked numbers or other people's phones. D.P. contacted M.V.S. again, this time to ask her to keep plaintiff away from her.
During the evening of February 17, 2010, plaintiff and M.V.S. were at their apartment when they began to argue over his relationship with D.P. Plaintiff took M.V.S.'s keys, removed the house key from the set, and threw them into the hallway. M.V.S. left the apartment and drove to the PPPD, but sat in her car in the parking lot without entering the police station.
After a few minutes, M.V.S. returned home and the dispute with plaintiff continued. M.V.S. demanded plaintiff return her house key and he refused. At approximately 9:00 p.m., M.V.S. called 911 and reported that her husband had taken her house keys and asked for a police officer from the PPPD to help her get them back.
PPPD Detective Sean Cottrell and Patrolmen Rory Tennant and George Beck responded to the Stark residence. Plaintiff was packing a bag and told Tennant that he was leaving. M.V.S. appeared upset but told the officers that nothing had happened. The officers saw no signs of physical injury and noticed no disarray in the apartment. After a few minutes, Beck told plaintiff that he could leave and the officers concluded that the incident involved a verbal dispute, not domestic violence.
After he left the apartment, plaintiff sent a text to Lieutenant Bruce Grasing, the internal affairs officer for the PPPD, to advise him that police officers had responded to his home. Grasing replied, "I'm sorry. Please don't text me with this, so I can remain impartial and good luck with whatever."
In the early morning hours of February 18, 2010, M.V.S. called a friend, Sergeant James Giunchini of the Cliffside Park Police Department. Giunchini was on duty at the time, and the call was automatically recorded. M.V.S. told Giunchini about plaintiff's affair with D.P. and that she thought it had ended but found text messages and photos on plaintiff's cell phone, indicating that he was still seeing her.
M.V.S. told Giunchini that she and plaintiff had argued and she called 911 but did not tell the responding officers what actually happened because she did not trust the PPPD. She claimed plaintiff had come at her with his fists clenched as if he was going to punch her. He placed both hands on her and shoved her backwards, and when she did not fall, he gave her a second push knocking her down. She hit her back and her daughter, who witnessed the incident, ran to her yelling, "mommy's hurt." Plaintiff grabbed the child's arm, but M.V.S. pushed her daughter behind her and kept moving backwards. Plaintiff put his fist near her face and she thought he was going to punch her.
When Giunchini told M.V.S. that he would have to notify the PPPD, she became upset and asked him not to report the incident. Giunchini contacted the PPPD, spoke with Lieutenant Anthony Muccio, and told Muccio about his conversation with M.V.S. Muccio tried unsuccessfully to reach plaintiff, then called M.V.S.
On the morning of February 18, 2010, Muccio informed Captain Benjamin Ramos about his conversation with Giunchini. After reviewing Giunchini's report and listening to most of the recorded conversation between M.V.S. and Giunchini, Donald Keane, Chief of Police for the Borough of Cliffside Park, informed Ramos that the matter might warrant an internal affairs investigation.
Ramos reviewed Giunchini's report and the taped conversation, then spoke with Grasing who told him about the text message he had received from plaintiff. Grasing, who described himself as plaintiff's friend, told Ramos that he had advised plaintiff to handle the matter with the officers at the scene.
Ramos gave Grasing a copy of the audio recording and Giunchini's report. After listening to the recording, Grasing believed there was evidence of domestic violence, and concluded that an internal affairs investigation was appropriate. He contacted the Bergen County Prosecutor's Office for assistance.
An assistant prosecutor advised Grasing to send a high-ranking officer to speak with M.V.S. regarding her rights as a victim of domestic violence, and to offer her the opportunity to apply for a temporary restraining order. Grasing was also told to determine whether plaintiff's access to any weapons in the home posed a risk to the victim and to act in accordance with the Attorney General (AG) guidelines regarding the seizure of weapons pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.
As a result of his discussions with the prosecutor's office, Grasing recommended that Ramos immediately suspend plaintiff with pay pending the outcome of the investigation. He explained that the option of a reassignment to desk duty within headquarters was inappropriate given the possibility that plaintiff would interact with D.P., who worked as a clerical assistant in the borough hall where the police department was located. Grasing also advised Ramos that plaintiff was subject to a weapons seizure given the likelihood that a domestic dispute had occurred on February 17, 2010. Ramos assigned Detective Michael Martini to assist with the investigation.
On February 19, 2010, following his meeting with Grasing, Ramos called plaintiff into his office and informed him that the department had opened an investigation of the February 17, 2010 incident. He suspended plaintiff with pay and ordered him to surrender his duty weapon. Ramos was sitting at his desk when plaintiff took his duty weapon out of the holster, removed its magazine, and proceeded to slide the gun backwards to eject a chambered round. According to Ramos, plaintiff assumed a "tactical stance" directly in front of him while removing the holster, and kept the gun's barrel pointed at him. Ramos became alarmed and stood up, but did not say anything. He described plaintiff's actions as unexpected, inappropriate, careless, and disrespectful, explaining that Section 1:6.1 of the police manual prohibited an officer from ejecting a chambered round inside the police station without a firearms instructor present.
The Borough converted plaintiff's suspension to "without pay" status, but he filed a motion with the Law Division seeking to be placed back on the payroll pending the determination of the disciplinary charges. Plaintiff was returned to the payroll and the Law Division denied the Borough's motion for reconsideration.
Martini was in the room with Ramos and testified that he saw plaintiff remove his weapon, hold it out in front of him with the barrel pointed down, and release the slide to eject the round. Martini did not recall if plaintiff handed the gun to Ramos or placed it on the desk. Ramos subsequently asked Grasing to investigate plaintiff for possible mishandling of a firearm.
Ramos and Martini then went to M.V.S.'s home and advised her of her rights under the domestic violence law. She did not wish to apply for a domestic violence restraining order.
On February 22, 2010, D.P. went to the PPPD and told Sergeant Anthony Espino that she was receiving harassing phone calls and unwanted visits from plaintiff at her home when he was on duty. D.P. gave Espino a handwritten note indicating plaintiff was not using his own phone when calling her and she had asked him to stop calling her.
Grasing and Martini interviewed plaintiff who denied physically threatening M.V.S. on February 17, 2010 and called the incident a verbal disagreement. He explained that they had been arguing for two or three months, and that he had packed his bags and left because he was tired of arguing in front of his daughter. He admitted taking M.V.S.'s keys from a bowl by the door and throwing them into the hallway, but denied threatening to take their child with him.
Plaintiff admitted that he had an affair with D.P. and that he went to her home while on duty, in uniform, and while operating a marked police car. He visited D.P. at her home once a week since June 2009, and claimed he only stayed there five or ten minutes "at the most."
Grasing and Martini went to the neighborhood where D.P. resided, and interviewed residents. Several of D.P.'s neighbors confirmed that a police officer had visited her home while on duty. Justin Kim told Martini that during the previous six months, he noticed from "time to time" a PPPD police car parked across the street around midnight and that the car remained there for "a couple of hours at a time, sometimes longer, sometimes shorter." Kim testified he had seen the parked patrol car about twice a week, when he had gone outside to smoke.
Based on Grasing's investigation, Ramos concluded there was an ongoing pattern of behavior that warranted the filing of formal charges against plaintiff. In a letter to the Mayor and the director of the Borough's police department, Ramos described plaintiff's actions as abusive, careless, and habitual, and concluded that plaintiff had violated departmental policies and the code of conduct.
The Mayor and Council of the Borough filed a complaint alleging plaintiff violated the following rules and regulations governing police conduct and responsibilities:
1:1-1 Standards of Conduct: Members and employees shall conduct their private and professional lives in such a manner as to avoid bringing the Department disrepute in accordance with the standards set forth in this [police] manual.
1:1-7 Neglect of Duty: Officers may be charged with neglect of duty for any act or commission in violation of law, police orders, procedures, rules and regulations.
1:1-8 Performance of Duty: All members and employees shall perform their duties as required or directed by law, policy or order, or by order of a superior officer. All lawful duties required by competent authority shall be performed promptly as directed, notwithstanding the general assignment of duties and responsibilities.
1:1-2 Obedience to Law and Regulations: Members and employees shall observe and obey all laws and ordinances, all rules and regulations and orders of the department.
1:2-1 Prohibited Activity of Duty: Members and employees are prohibited [from engaging] in the following activities while on duty[:] sleeping, loafing, idling, conducting private business.
1:6-1 Handling of Firearms: Police Officers shall exercise caution and the utmost care in handling firearms on and off duty. All firearms will remain holstered except for
maintenance, training or at the direction of a certified firearms instructor. Handguns may be taken [from] the holster to be placed (immediately) into a locker or place of lawful storage. At no time shall a round be removed or chambered anywhere in headquarters unless done by a firearms instructor.
1:9-5 Truthfulness: Members and employees are required to be [truthful] at all times whether under oath or not.
6:3-2 All members must cooperate in any investigation. If a member fails to cooperate, he shall be subject to removal from the department.
A hearing on the disciplinary charges was held before a retired Superior Court judge, who was appointed by the Borough. On July 29, 2011, the hearing officer issued a written report and recommendations, which concluded that the Borough had sustained its burden of proof with respect to all but one of the charges against plaintiff. He found no credible evidence to support the allegation that plaintiff had intended to threaten or intimidate Ramos when he surrendered his duty weapon and recommended dismissal of the weapons charge.
After reviewing the parties' submissions on the penalty phase, the hearing officer issued a second report and recommended plaintiff's dismissal from the police force. The Mayor and Borough Council passed a resolution adopting the recommendations and dismissing plaintiff as a police officer.
Plaintiff filed a complaint in lieu of prerogative writs in the Law Division claiming that the hearing officer made inaccurate findings of fact, and sought de novo review of the disciplinary hearing pursuant to N.J.S.A. 40A:14-150. He sought reversal of the hearing officer's findings and recommendations as adopted by the Mayor and Council, reinstatement to his former position, back pay, and attorney fees.
The Law Division affirmed the findings of the hearing officer and the Mayor and Council, and upheld plaintiff's dismissal.
On appeal, plaintiff raises the following points:
POINT I
THE TRIAL COURT FAILED TO APPLY THE PROPER STANDARD OF REVIEW; FAILED TO CONDUCT THE REQUISITE CAREFUL SIFTING AND WEIGHING OF THE EVIDENCE; AND FAILED TO MAKE INDEPENDENT FINDINGS.
1(A) THE TRIAL COURT FAILED TO CONDUCT THE REQUIRED "SIFTING AND WEIGHING" OF THE RECORD EVIDENCE.POINT II
1(B) THE TRIAL COURT FAILED TO MAKE INDEPENDENT FINDINGS OF FACT BUT MERELY ISSUED A RUBBER STAMP APPROVAL OF THE HEARING OFFICER'S FINDINGS.
TRIAL COURT ERRED IN ADMITTING RECORDED STATEMENT OF [M.V.S.] AS PER N.J.R.E. 803 (c)(2).
POINT III
THE TRIAL COURT ERRED IN UPHOLDING FINDINGS OF HEARING OFFICER RELATIVE TO THE [D.P.] INCIDENT.
POINT IV
THE TRIAL COURT ERRED WHEN IT FAILED TO ADDRESS THE ATTORNEY GENERAL GUIDELINES AND AS WELL AS PALISADES PARK'S REGULATIONS MANDATING PROGRESSIVE DISCIPLINE.
POINT V
TRIAL COURT'S DETERMINATION THAT OFFICER STARK'S ANSWERS AT AN INTERNAL AFFAIRS INTERVIEW WERE CONTRARY TO PALISADES PARK RULES AND REGULATIONS IS CLEARLY MISPLACED AND [FLIES] IN FACE OF TESTIMONY AND EVIDENCE PRESENTED.
POINT VI
BECAUSE THE TRIAL COURT FAILED TO APPLY THE PROPER STANDARD TO THE ABUNDANT EVIDENCE IN THE RECORD THE APPELLATE COURT SHOULD EXERCISE ITS ORIGINAL JURISDICTION TO DO SO, USING THE DE NOVO STANDARD THAT WOULD HAVE BEEN INCUMBENT ON THE TRIAL COURT. R. [2] :10-5.
POINT VII
BOTH THE HEARING OFFICER AND THE TRIAL COURT IMPROPERLY AND WRONGLY FOUND PLAINTIFF/APPELLANT GUILTY OF DOMESTIC VIOLENCE BASED SOLELY UPON HEARSAY EVIDENCE.
POINT VIII
THE COURT'S FINDINGS WERE AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AND MUST BE OVERTURNED.
II.
A.
Plaintiff contends that the Law Division failed to apply the proper de novo standard of review and did not make independent findings of fact. Plaintiff refers to the court's thirteen-page decision as "measly" and claims it failed to sift and weigh the evidence.
Plaintiff challenged his dismissal by filing an action in lieu of prerogative writs pursuant to N.J.S.A. 40A:14-150, which governs the review of disciplinary convictions in non-civil service municipalities. See In re Disciplinary Procedures of Phillips, 117 N.J. 567, 577 (1990). This statute provides that "[a]ny member or officer of a police department or force . . . who has been tried and convicted upon any charge or charges, may obtain a review thereof by the Superior Court . . . ." N.J.S.A. 40A:14-150. It further provides that "[t]he court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction." Ibid. The statute also provides that "[e]ither party may supplement the record with additional testimony subject to the rules of evidence." Ibid.
The Law Division judge noted that this matter arose out of an action in lieu of prerogative writs but clearly indicated that he treated this matter as "a trial de novo on the record of a disciplinary proceeding held pursuant to N.J.S.A. 40A:14-150[.]"
Our role in reviewing a de novo proceeding is limited. Phillips, supra, 117 N.J. at 579. We only decide whether there was adequate evidence to justify the trial court's findings. Ibid. We will not disturb the decision below unless it was arbitrary, capricious, unreasonable, or not supported by substantial credible evidence in the record. Ibid.
The court indicated that it "canvas[sed] the record as a whole, and consider[ed] the matter anew, afresh [and] for a second time[.]" The court discussed the factual basis for each of plaintiff's arguments, and its reasons for affirming the findings of the hearing officer and governing body. It did not simply affirm those findings in a conclusory fashion, but instead, weighed the evidence and made independent findings to support its conclusions.
The court found that plaintiff's ongoing affair with D.P. while on duty and his untruthful answers during his internal affairs interview were sufficient to warrant dismissal. The court found that plaintiff and D.P. engaged in an extramarital affair that occurred over a period of six years. Citing D.P.'s testimony that plaintiff visited her forty times while on duty, in uniform, and using a police vehicle, the court concluded that plaintiff violated departmental rules, engaged in conduct that did not meet the high standards to which a police officer was held, failed to perform his duty and, in fact, neglected it.
With respect to the internal affairs investigation, the court noted the findings of the hearing officer regarding plaintiff's answers at his interview and concluded that plaintiff was not truthful when he answered questions about the incident on February 17, 2010; the duration of his visits to D.P. since the renewal of their relationship in June 2009; and his dispute with another officer over D.P. The court also found that when interviewed, plaintiff "signed a warning in the presence of counsel that he would be subject to departmental discipline for refusing to answer questions truthfully."
After determining that the Borough had sustained all but the firearms charge against plaintiff, the hearing officer issued a separate report addressing his recommendations for the appropriate penalty. In rejecting plaintiff's argument for progressive discipline, he found that the nature of plaintiff's misconduct and his disciplinary history with the PPPD rendered that penalty inappropriate.
In accepting the hearing officer's penalty recommendations, the Law Division concluded that plaintiff had violated the departmental rules and regulations and engaged in conduct unbecoming a police officer warranting his dismissal. While the court did not engage in line-by-line analysis of the hearing officer's conclusions, the facts relied on by the hearing officer in making his recommendations were mostly undisputed.
The hearing officer noted that plaintiff's career with the PPPD, described euphemistically in plaintiff's brief as "mostly unblemished," included four written reprimands, two verbal reprimands, two suspensions, and one warning. Among these transgressions, which were not challenged by plaintiff at trial, were use of excessive force on two occasions, insubordination, and abuse of power.
Moreover, the hearing officer, citing In Re Herrmann, 192 N.J. 19, 33 (2007), correctly noted that progressive discipline was not appropriate in cases "where an employee has engaged in serious misconduct or where his position involves public safety and the misconduct causes risk or harm to persons or property." The determination of the Law Division to adopt the recommendation of the hearing officer and implicitly reject plaintiff's arguments for a lesser penalty is supported by adequate, substantial, and credible evidence in the record.
B.
M.V.S. did not testify at the hearing but a recording and transcript of her February 18, 2010 conversation with Sergeant Giunchini was admitted without objection. Plaintiff now contends the court erred by admitting the recorded statement under the excited utterance exception to the hearsay rule.
In his July 2011 report, the hearing officer found that there was no objection to the admission of the recorded conversation, but concluded, without elaboration, that even if the parties had objected, it was admissible as an exception to the hearsay rule.
The Law Division reached the same conclusion, finding that the recorded conversation and accompanying transcript were admitted into the record without objection and reviewed by the hearing officer. The court noted that plaintiff's counsel stated during the proceedings that he did not object to the tape's admission, as he planned to use it during his cross-examination. Neither party called M.V.S. as a witness. Because plaintiff did not object to the admission of the recorded conversation, and failed to call her as a witness, the court concluded that the recording was properly admitted into evidence.
Counsel did not indicate which witness he intended to cross-examine using the tape, but from the context of the statement it appears he was referring to M.V.S.
The court determined that the recorded conversation was admissible pursuant to N.J.R.E. 803(c)(2) as an excited utterance, as M.V.S. made the statement at a time when she was "distraught, frightened and fearful for her safety and that of her daughter[.]" It explained:
[M.V.S.] told Sgt. James Giunchini that in some ways she was more frightened than she was earlier and that she placed a ladder against her door to protect herself and her daughter from Officer Stark returning and harassing her. . . .
[M.V.S.]'s mindset remained in a state of excitement, and therefore, the recorded conversation was properly admitted.
A trial court's evidentiary ruling is entitled to substantial deference. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Its decision will be reversed on appeal only on a finding of an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).
Hearsay consists of an out-of-court statement "offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). These statements are inadmissible unless they fall within a recognized exception. State v. Buda, 195 N.J. 2 78, 292-93 (2008).
The excited utterance exception allows a trial court to admit an out-of-court statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2). "[F]or the exception to apply, the court must be satisfied that the statement was an uncontrolled response from shock before reflection would allow the statement to be fabricated or influenced by self-interest." Negron v. Melchiorre, Inc., 389 N.J. Super. 70, 87 (App. Div. 2006), certif. denied, 190 N.J. 256 (2007). A court, therefore, should consider "the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance." State v. Long, 173 N.J. 138, 159 (2002). A court is not required to find that the witness actually fabricated the statement, but merely that he or she had the opportunity to do so. Negron, supra, 389 N.J. Super. at 88.
An excited utterance does not have to be made contemporaneously with the startling event. State v. Clark, 34 7 N.J. Super. 497, 506 (App. Div. 2002). Statements made hours after an incident may constitute an excited utterance. See Buda, supra, 195 N.J. at 297-98. "Thus, even a somewhat lengthy delay will not always prevent a statement from being admissible under Rule 803(c)(2)." Long, supra, 173 N.J. at 159. Because the "nature of the utterance" determines its admissibility, "the time lapse is not the most important consideration." State v. Cotto, 182 N.J. 316, 330 (2005). Rather, the crucial element is "whether the facts and circumstances reasonably warrant the inference that the declarant was still under the stress of excitement caused by the event." State v. Baluch, 341 N.J. Super. 141, 182 (App. Div.) (statement of the defendant's husband to a friend at least one hour after discovery of body was admissible as an excited utterance because the husband was still in shock), certif. denied, 170 N.J. 89 (2001).
M.V.S. called Giunchini at approximately 2:00 a.m., five hours after the police responded to her home. She admitted that she was frightened when plaintiff shoved her down and put his fist in her face but claimed that she was "a lot more frightened" at the time of her conversation with Giunchini, and had placed a ladder against her door so plaintiff could not enter her home.
The record indicates that the 911 call by M.V.S. occurred at approximately 9:00 p.m. on February 17, 2010. She called Giunchini during the early morning hours of February 18, 2010, and spoke to him for approximately one hour. Immediately after their conversation, Giunchini called Muccio at 2:53 a.m.
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The primary purpose of M.V.S.'s call to Giunchini was to ask him to speak with her daughter about the events of February 17. M.V.S. feared she might be accused of coaching the child and wanted to make sure no one tried to "twist" her daughter's words.
While it appears that M.V.S. was still under the stress of excitement caused by the earlier event, we need not address whether her comments constitute excited utterances for two reasons. First, there was no objection to the admission of the tape and its admission does not constitute plain error. Second, plaintiff's counsel not only failed to object to the tape's admission, he indicated that he intended to use the tape during his cross-examination.
"The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996). The doctrine "is based on considerations of fairness and preservation of the integrity of the litigation process." Ibid. A litigant "cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought . . . claiming it to be error and prejudicial." State v. Jenkins, 178 N.J. 347, 358 (2004). When a litigant asks the court to take a proffered approach and the court does so, relief will not be forthcoming on a claim of error by that litigant. Ibid.
The record is clear that plaintiff's counsel reviewed the Giunchini tape and consented to its admission. In so doing, he deprived defendants of the opportunity to respond to any objections and foreclosed the hearing officer from ruling on the issue. Had an objection been raised and sustained, defendants could have subpoenaed M.V.S. and confronted her with her statements on the tape. Plaintiff is barred by the doctrine of invited error from objecting to the tape and we find no error in its admission. A strategic trial decision that does not prove fruitful does not present a post hoc opportunity to re-litigate an issue previously eschewed.
C.
Plaintiff contends the court erred by finding that he violated departmental rules by engaging in an extramarital affair. We disagree.
The hearing officer did not find the testimony of plaintiff or D.P. credible when they both suggested that plaintiff's purpose in making early-morning visits to her home was strictly platonic. The court noted that by D.P.'s account, between June 2009 and February 2010, plaintiff visited her about forty times while on duty, in uniform, and using a police vehicle. Relying on the testimony of two neighbors, the hearing officer found that, during this time, plaintiff was engaged in an extramarital affair with D.P. The hearing officer found that the affair was of long duration, that M.V.S. was aware of it, that it presented a continuing source of conflict in plaintiff's marriage, and that plaintiff carried on the affair while on duty. The hearing officer found that plaintiff's visits had furthered his extramarital affair in violation of the high standards of conduct to which a police officer was held and there were reasonable grounds to believe plaintiff's visits violated Police Rules 1:1-1 Standards of Conduct, 1:1-7 Neglect of Duty, 1:1-8 Performance of Duty, and 1:1-12 Observance to Law and Regulations.
The Law Division determined that "[c]ommon sense dictate[d] that a police officer who [was] carrying on an extramarital affair while on duty [was] engaged in personal, not police matters." The court explained that it was "the type of personal matter he was engaged in while on duty, the number of times and the duration of the visits which were found to be egregious." It concluded:
By using his uniform and position as a police officer to carry on an extramarital affair while on duty, Officer Stark was neither meeting the high standard of conduct a police officer is held to nor was he performing his duty.
Appellate review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). The general rule is that a trial court's findings are binding on appeal when supported by adequate, substantial, and credible evidence. Id. at 411-12. The record supports the court's finding that plaintiff violated departmental rules and standards of conduct by engaging in an extramarital affair with D.P. while on duty.
Our courts have held that "a finding of misconduct by a police official need not be predicated on the violation of any particular department rule or regulation." Phillips, supra, 117 N.J. at 576; Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 351 (App. Div. 2002). As a special kind of public employee, a police officer has an obligation to act in a responsible manner and cannot complain that he or she is held to an unfairly high standard of conduct. Phillips, supra, 117 N.J. at 576-77; Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). Instead, a police officer assumes this obligation when he or she voluntarily enters public service. Phillips, supra, 117 N.J. at 577 (quoting In re Appeal of Emmons, 63 N.J. Super. 136, 142 (App. Div. 1960)). Thus, a police officer "represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public[.]" Twp. of Moorestown, supra, 89 N.J. Super. at 566.
Lastly, plaintiff argues that the court failed to analyze D.P.'s testimony and her statement, noting that her internal affairs interview was not recorded, that she was not sworn prior to the interview, and that she never signed her statement. He further argues that D.P. stated at the hearing that significant portions of her statement were a misrepresentation. However, D.P. also told the hearing officer that everything in Grasing's report was what she had told him that day.
We are satisfied that there was credible evidence in the record to support the court's findings that plaintiff violated departmental rules and standards of conduct by engaging in an extramarital affair while on duty.
D.
We find the remaining arguments presented by plaintiff lack sufficient merit to warrant extended discussion in our opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
Plaintiff argues that the Attorney General Guidelines and departmental rules mandated the application of progressive discipline. The guidelines provide that the rules and regulations of a law enforcement agency "'should set forth a schedule of possible penalties [a police] officer might receive when discipline is imposed' and that '[a][ system of progressive discipline should be instituted within the agency's rules.'" McElwee v. Borough of Fieldsboro, 4 00 N.J. Super. 388, 396 (App. Div. 2008). We have held that although these guidelines "contemplate the establishment of a 'system of progressive discipline,' this does not mean that progressive discipline must be imposed in every case regardless of the circumstances." Ibid.
Here, the Law Division found plaintiff's conduct was egregious and stated its reasons for affirming the hearing officer's recommendation for removal. There is substantial evidence in the record to support the court's findings. Given plaintiff's job to protect public safety, the sanction of dismissal was not so disproportionate as to be shocking to one's sense of fairness. See In re Stallworth, 208 N.J. 182, 195 (2011).
We also reject plaintiff's challenge to the finding that he was untruthful and uncooperative during the internal affairs investigation and we find substantial credible evidence in the record to support the court's findings. See Cesare, supra, 154 N.J. at 411-12. The court reviewed the hearing officer's decision with respect to the investigation, identified the facts that supported the hearing officer's findings, and explained its reasons for reaching the same conclusion as the hearing officer.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION