Opinion
DOCKET NO. A-4302-14T3
03-18-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DAVID T. POMIANEK, JR., Defendant-Respondent.
Mary Eva Colalillo, Camden County Prosecutor, attorney for appellant (Robin A. Hamett, Assistant Prosecutor, of counsel and on the briefs). F. Michael Daily, Jr., attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-02-0646. Mary Eva Colalillo, Camden County Prosecutor, attorney for appellant (Robin A. Hamett, Assistant Prosecutor, of counsel and on the briefs). F. Michael Daily, Jr., attorney for respondent. PER CURIAM
The State appeals from a May 20, 2015 order granting defendant's motion to vacate a January 7, 2011 order forfeiting his current public employment and disqualifying him from holding public office. See N.J.S.A. 2C:51-2(a)(2), -2(b). Because we conclude that the county prosecutor did not abuse her discretion in declining to waive the application of the statute, we reverse and vacate the May 20, 2015 order and reinstate the forfeiture and disqualification. We remand this matter to the trial court for the limited purpose of entering an order consistent with this opinion.
II.
The factual and procedural background is set forth at length in our prior opinion and that of the Supreme Court. State v. Pomianek, 429 N.J. Super. 339 (App. Div. 2013), aff'd in part and rev'd in part, 221 N.J. 66 (2015). We summarize what is most relevant to this appeal. In April 2007, defendant, an employee of a municipal public works department, participated in an incident in which an African-American co-employee was locked in a cage suspended several feet above the floor of the public works garage and was subjected to demeaning comments by co-workers. As we noted in our opinion, the trial evidence supported a finding that defendant conspired with another co-worker to lock the victim in the cage, as a prank. Defendant then directed at the caged victim a comment which any reasonable listener would construe as racist.
As a result of the cage incident, the victim filed a civil rights lawsuit against the municipality. See Brodie v. Gloucester Twp., Civil Action No. 11-1914, 2012 U.S. Dist LEXIS 12260 (D.N.J. Feb. 1, 2012), appeal dismissed, 531 F. App'x 234 (3d Cir. 2013). We cite the federal court's unpublished decisions for informational purposes only, as they relate to the history of this case. See R. 1:36-3.
The jury convicted defendant of two counts of harassment, which were petty disorderly persons offenses. N.J.S.A. 2C:33-4(a) (harassment by communication); N.J.S.A. 2C:33-4(c) (harassment by alarming conduct). The jury acquitted defendant of two counts of bias intimidation: committing the harassment with the purpose to intimidate the victim because of race, N.J.S.A. 2C:16-1(a)(1), and committing the offense knowing that the conduct would cause the victim to be intimidated because of his race, N.J.S.A. 2C:16-1(a)(2). However, the jury convicted defendant of bias intimidation for harassing the victim under circumstances that would cause the victim to believe that the offense was committed with a purpose to intimidate him based on race, N.J.S.A. 2C:16-1(a)(3)(a). The jury also convicted defendant of second-degree misconduct in office, N.J.S.A. 2C:30-2(a), based on the bias crime conviction.
On January 7, 2011, the trial court ordered that defendant forfeit his public employment and disqualified him from holding public employment in the future. Forfeiture was a mandatory, non-waivable consequence of defendant's conviction for second-degree misconduct in office. N.J.S.A. 2C:51-2(a)(1). Forfeiture was also a mandated consequence of the harassment convictions, provided they were found to touch upon defendant's public office, N.J.S.A. 2C:51-2(a)(2), but as to those convictions only, the prosecutor had discretion to request a waiver of the forfeiture. See N.J.S.A. 2C:51-2(e). However, at the time the January 2011 order was entered, waiver was not an option.
We refer to these consequences, collectively, as "forfeiture" and we refer to the January order as the forfeiture order.
On appeal, we reversed the convictions for bias intimidation and misconduct in office but affirmed the harassment convictions; we remanded for a retrial on the bias intimidation charges. Pomianek, supra, 429 N.J. Super. at 365. In our opinion, we held that the State had properly introduced in evidence other instances in which defendant had made racist comments to or about African-American co-workers. Id. at 364. We also noted that defendant's public employer could seek, "through civil administrative channels, to terminate his employment" for conduct unbecoming a public employee. Pomianek, supra, 429 N.J. Super. at 344 n.2.
The Supreme Court affirmed our decision, except as to the remand. The Court held that defendant could not be re-tried because the section of the bias crime statute of which he had been convicted was unconstitutional. Pomianek, supra, 221 N.J. at 70-71. Based on the reversal of his conviction for misconduct in office, defendant filed a motion in the trial court to vacate the forfeiture order. The prosecutor declined to waive forfeiture based on defendant's two remaining harassment convictions, and submitted a written statement of reasons to the trial court reviewing the sixteen factors set forth in the Attorney General's Guidelines for Deciding Whether to Apply for Waiver of Forfeiture or Disqualification of Office (Guidelines). See Attorney General Guidelines for Deciding Whether to Apply for a Waiver of Forfeiture of Public Office Pursuant to N.J.S.A. 2C:51-2(e) 9-10, available at http://www.state.nj.us/lps/dcj/agguide/waiverofforfeiture.pdf; State v. Flagg, 171 N.J. 561, 578-79 (2002).
The sixteen factors are as follows:
1) the totality of the circumstances surrounding the event; 2) the nature of the offense, including its gravity and substantiality, whether it was a single or multiple offense and whether it was continuing or isolated; 3) the quality of moral turpitude or the degree of guilt or culpability, including the employee's motives, reasons and personal gain; 4) the duties of the employee; 5) the relationship between the offense and the duties of the employee, including but not limited to, whether the criminal activity took place during work hours, or involved work facilities or equipment; 6) the employee's public employee history and record; 7) the employee's length of service; 8) whether forfeiture will be an undue hardship upon the employee and his family; 9) the employer's desires; 10) the needs and interests of the victim and society; 11) the extent to which the employee's offense constitutes part of a continuing pattern of anti-social behavior; 12) the employee's prior record of convictions and disciplinary infractions; 13) the threat presented to coworkers or the public if the employee is permitted to retain his or her position; 14) any involvement of the employee with organized crime; 15) whether the employee has been granted waiver on a prior occasion; and 16) the impact of waiver on the employment status of codefendants.
[Id. at 579.]
In an oral opinion, the trial court accepted the State's position that defendant's "offense" involved or touched upon his public employment. See N.J.S.A. 2C:51-2(a)(2) (requiring forfeiture of employment when a public employee is convicted "of an offense involving or touching such office, position or employment"). However, in reviewing the sixteen factors, the judge considered that the event did not take place in public view and was a one-time event. The judge also considered that the jury's verdict indicated that this incident was not racially motivated. The judge further found that the prosecutor failed to establish that defendant had "a bad work record" because some of the alleged prior work-related incidents or infractions cited in the prosecutor's statement of reasons, including the defendant's alleged prior racially biased conduct on other occasions, were either unproven or had been rejected in other proceedings as being unfounded.
Apparently either not considering or not knowing that the victim had filed a lawsuit over the incident, the judge stated that the victim had indicated that he "would forgive" defendant although he would not forget the incident. The judge also reasoned that the appropriate way to sanction defendant for this conduct was through an administrative proceeding in which the employer would seek to terminate his employment. Based on his analysis the judge concluded that the prosecutor abused her discretion in declining to request a waiver of forfeiture.
II
As the Supreme Court made clear in Flagg, forfeiture is a collateral, civil consequence of a criminal conviction. Flagg, supra, 171 N.J. at 570. However, because it is a severe consequence, the Legislature created an escape valve in situations where defendants have been convicted of relatively minor offenses for which forfeiture may be "too harsh a sanction." Id. at 569; see N.J.S.A. 2C:51-2(e). In that context, the Court held that a prosecutor's decision not to seek waiver is to be reviewed for abuse of discretion, as opposed to the gross and patent abuse of discretion applied in pre-trial intervention cases:
Because forfeiture of office is not a criminal punishment, defendant's constitutional argument premised on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), is without merit and requires no further discussion. R. 2:11-3(e)(2).
The forfeiture and disqualification requirements are non-penal consequences of certain convictions. N.J.S.A. 2C:51-2e fairly can be characterized as remedial, both in its purpose and implementing provisions. . . . Given that the discretionary decision whether or not to seek a waiver is dissimilar to those determinations typically made by prosecutors in their law enforcement capacity, and is more akin to prosecutorial discretion in sentencing-related determinations, an abuse of discretion would be the more appropriate standard. In PTI matters, the focus is on whether there should be prosecution under an indictment, thereby implicating a wide range of considerations that influence a prosecutor's ultimate decision. In contrast, the purpose of N.J.S.A. 2C:51-2e is to avoid the harshness of forfeiture and disqualification for a few minor offenses in which the circumstances dictate otherwise.
Because that statute is remedial legislation, it should be liberally applied to achieve the legislative intent. That purpose can be achieved more effectively under an ordinary abuse of discretion standard.
[Flagg, supra, 171 N.J. at 570-71 (citations omitted.)]
Under an abuse of discretion standard, the reviewing court does not determine what that court would have decided had it made the decision in the first instance. Rather the court decides whether the prosecutor's decision was arbitrary or improperly-informed.
Although the ordinary "abuse of discretion" standard defies precise definition, it arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." . . . "Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment."
[Id. at 571 (citations omitted).]
On this appeal, we review the trial court's decision de novo. See State v. Hupka, 203 N.J. 222, 231 (2010). Applying that standard, we cannot agree with the trial court that the prosecutor's decision was an abuse of discretion.
The offenses defendant committed clearly touched upon or involved his employment. The incident occurred on work time, in the public works garage. There is no dispute that the victim, as a laborer, was a subordinate to defendant, who was a truck driver. See Pomianek, supra, 221 N.J. at 71. Hence, the incident involved harassment and humiliation of a subordinate employee. Even if the incident was not racially motivated, defendant's conduct was hurtful and manifested extreme insensitivity toward the victim. Further, defendant's harassment and humiliation of an African-American co-worker, by making a racist comment, evoked "the cancer of discrimination" which our Legislature has determined should be eradicated from the work place. Jackson v. Concord Co., 54 N.J. 113, 124 (1969); see Fuchilla v. Layman, 109 N.J. 319, 334-35 ( 1988), cert. denied sub nom. Univ. of Med. & Dentistry v. Fuchilla, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988).
On this record, we conclude that the incident would have justified defendant's termination from employment, even if it had been his first work-related infraction, which it was not. See State v. Rone, 410 N.J. Super. 589, 608 (App. Div. 2009) (noting that one particularly egregious factor may "outweigh the other factors") (citing Guidelines at 10). We do not share the trial judge's apparent concern that forfeiture was sought in an attempt to circumvent the civil administrative disciplinary process. Forfeiture of defendant's employment with the public works department was warranted.
A couple of the past workplace infractions the prosecutor cited were unfounded. However, at least two were upheld and not challenged, including a charge of throwing tomatoes at a fellow employee. See Pomianek, supra, 429 N.J. Super. at 347. --------
We also find no abuse of the prosecutor's discretion in concluding that these harassment offenses warranted excluding defendant from future public employment. Unlike the employee in Flagg, who was directed by his employer to dispose of some solid waste in a way that Flagg did not realize was illegal, here defendant was guilty of conduct that he knew or should have known was wrong and hurtful to a fellow employee. As the Court found, "[Flagg] never intended to harm anyone or any property." Id. at 575. By contrast, defendant was convicted of harassment offenses that required the jury to find that he intentionally inflicted harm on his victim. See Pomianek, supra, 429 N.J. Super. at 359-61. Further, even if the prosecutor was mistaken in relying on a couple of unsubstantiated prior disciplinary incidents, we conclude that error was harmless because the undisputed evidence so strongly supports denial of the waiver. R. 2:10-2; see Hupka, supra, 203 N.J. at 241 (in a forfeiture proceeding, the State may rely on uncontroverted evidence outside the trial record).
Defendant did not satisfy "the burden of proof to show that his [waiver] request" was "supported by mitigating circumstances warranting a waiver." Flagg, supra, 171 N.J. at 578. "The remedial and beneficent purpose" of the waiver statute would not be served by granting a waiver. Id. at 574. We find no basis to disturb the prosecutor's exercise of discretion here.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION