On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Atlantic County.
King, Shebell and Keefe. The opinion of the court was delivered by Shebell, J.A.D.
[239 NJSuper Page 470] Respondents-cross-appellants Gerald Bruno and Alfred Bechard, Atlantic City police officers, were indicted on various criminal charges together with two fellow police officers. Bruno and Bechard were later acquitted on all counts. They then instituted suit in the Chancery Division against the City and its
police chief, Joseph Pasquale, seeking reimbursement of counsel fees pursuant to N.J.S.A. 40A:14-155. The chancery judge ordered that the City pay counsel fees for the defense of all counts of the indictment except those two which charged possession and distribution of a controlled dangerous substance (CDS). This appeal and cross-appeal followed. The issue is whether plaintiffs qualified for reimbursement of counsel fees and costs under the 1986 amendment to N.J.S.A. 40A:14-155.
We first consider the issue as it pertains to Officer Bechard. He was charged with official misconduct through his failure to arrest Bruno whom he knew to be in possession of cocaine having a value of over $200 (N.J.S.A. 2C:30-2a),conspiracy to commit official misconduct by attending a gathering at which cocaine and marijuana was possessed and used (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-2a), and official misconduct through failure to arrest persons at the gathering whom he knew to be using and possessing drugs (N.J.S.A. 2C:30-2a).
On January 19, 1990, we handed down our decision in Sparkman v. City of Atlantic City, 237 N.J. Super. 623, 568 A.2d 917 (App.Div.1990). That case dealt with the identical issue raised here as it related to an order of the Law Division that the City pay counsel fees and costs incurred by the codefendant Sparkman in the same indictment. Sparkman, a fellow officer of these defendants, was also charged with official misconduct and conspiracy to facilitate the crime of official misconduct. In Sparkman we held that a police officer is not entitled to reimbursement unless the proceedings arose out of and were incidental to performance of his police duties. Sparkman, 237 N.J. Super. at 629, 568 A.2d 917. Under the 1986 amendment to N.J.S.A. 40A:14-155, a police officer is entitled to have his counsel fees paid "only where he is charged with an infraction arising from the lawful exercise of police powers in the furtherance of his official duties." Ibid.
We further stated in Sparkman that "[a] police officer is not entitled to counsel fees where the proceedings arise as a result of his failure to perform his official duties." Sparkman, 237 N.J. Super. at 629, 568 A.2d 917. We note that this broad pronouncement in Sparkman constitutes dicta to the extent that it might be applied to a failure to perform where, unlike the situation here, an officer is on duty or otherwise engaged in "the lawful exercise of police powers in the furtherance of his official duties." Ibid. We leave for another day the question of whether defense of an allegation of failure to perform certain specific police duties, while actually performing general on-duty activities, is covered by the amended statute. In any event, it is clear in these circumstances that the charges against Bechard did not arise out of, nor were they directly related to, the lawful exercise of his official police duties.
The facts and circumstances as they pertain to Officer Bruno require further discussion. Bruno was charged with theft by unlawfully removing cocaine from an impounded vehicle (N.J.S.A. 2C:20-3a) and with unauthorized exercise of his official functions by taking the property of another (N.J.S.A. 2C:30-2a), as well as with possessing cocaine (N.J.S.A. 24:21-19b(2)), distribution of a CDS (N.J.S.A. 24:21-19a(1)), official misconduct in permitting his premises to be used for distribution, possession and use of a CDS (N.J.S.A. 2C:30-2b), and conspiracy to facilitate the commission of the crime of official misconduct by having the gathering which the other three defendants attended where cocaine and marijuana were possessed and used (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-2a).
Bruno was assigned to guard a car which had been confiscated from an alleged narcotics dealer. The vehicle contained more than $200 worth of cocaine in its trunk and was housed in a police garage. Bruno was on duty wearing his police uniform ...