Goldmann, Freund and Kilkenny. The opinion of the court was delivered by Goldmann, S.j.a.d.
Emmons, a Long Branch police officer, brings this appeal under R.R. 4:88-8 to review the action of the Department of Civil Service which, after a hearing de novo , determined that his 90-day suspension from the police force for conduct unbecoming a police officer was proper. The suspension had been imposed after a local departmental hearing and was based on Emmons' refusal to cooperate in an examination to determine his sobriety following an off-duty automobile accident in Long Branch in which he was personally involved.
The established rule is that on a review of facts determined by an administrative agency, we confine ourselves to the question of whether its findings are supported by substantial evidence -- such evidence as a reasonable mind might accept as adequate to support the conclusion or, to put it differently, whether the evidence furnished a reasonable basis for the agency's action. Zachariae v. New Jersey Real Estate Comm'n , 53 N.J. Super. 60, 62 (App. Div. 1958); In re Greenville Bus Co. , 17 N.J. 131, 137-138 (1954). Our examination of the record satisfies us that the Civil Service Department determination was amply supported by the testimony and should not be disturbed.
Appellant claims that the Department determination was based on his refusal -- made on the advice of counsel -- to take a blood test under N.J.S.A. 39:4-50.1. The agency did mention the refusal in its findings of fact. But its conclusions clearly show that it founded its determination on Emmons' uncooperative attitude in failing to answer the simplest questions put to him by Dr. Goldberg, the city physician who attempted to examine him, and to submit to certain parts of the sobriety examination (such as the finger-to-nose test) which his injuries did not prevent him from taking.
There was sufficient evidence to sustain the suspension without considering Emmons' refusal to take a blood test. The issue was therefore a factual one, and its resolution
depended in large part upon credibility. The position of the Department hearer was, of course, far superior to ours in judging credibility. In re Cohen , 56 N.J. Super. 502, 505 (App. Div. 1959), certification denied 31 N.J. 297 (1960); cf. R.R. 1:5-4(b). He apparently chose to believe the city physician rather than Emmons.
Dr. Goldberg testified that he saw Emmons in the hospital emergency room at about midnight, some 45 minutes after the accident. Also present were the house physician, a nurse, Police Officer Anastasia and one Burlett, driver of the automobile with which Emmons had collided. The doctor was no stranger to Emmons; he had treated him as a boy. Dr. Goldberg saw no indications of injury; he testified that he did not believe Emmons was injured, nor was he in shock. Although the doctor questioned Emmons for some ten minutes, he received no answers. Among other things, he asked Emmons if he had been drinking, where he was going at the time of the accident, if he was injured, if he was a drinking man, would he permit the doctor to examine him, would he perform the finger-to-nose test, would he do the Romberg test? Emmons said he could remember no question that he had refused to answer. He admitted his mind was clear before the questioning began, and he could understand the city physician.
Dr. Goldberg testified that later on Emmons did give some answers: he had taken some Anacin that morning, had worked until 6 P.M., was "allergic to needles." He complained of a headache and said there had been no tail lights on the other car.
Emmons was clear-minded enough to ask Officer Anastasia to phone his lawyer to ask what he should do about taking a sobriety test. Anastasia did so and informed Emmons that the lawyer had advised that he refuse to take the test. Emmons testified he was relying on the advice of counsel in not submitting to a blood test, and had asked Anastasia to make the call because the attorney was a very close friend and he wanted "to have a friend around." He professed not
to have been concerned about a sobriety test; he said, "I can't say I refused it because to tell you the truth I couldn't get off the stretcher, as I stated before, to do the Romberg."
We observe that despite Emmons' testimony as to his impaired physical condition, no hospital report was submitted in evidence that would reveal the extent of his injuries, nor did any of the hospital personnel or his own ...