On appeal from Superior Court, Law Division, Somerset County.
Pressler, Muir, Jr. and Kestin. The opinion of the court was delivered by Pressler, P.J.A.D.
[262 NJSuper Page 402] This is a municipal police disciplinary matter. Plaintiff William C. King, a patrolman employed by the Borough of South Bound Brook, appeals from a judgment of the Law Division,
entered after a de novo proceeding pursuant to N.J.S.A. 40A:14-150 sustaining his removal from office by the borough's police committee on the ground of indictable misconduct. The municipal defendants appeal from that portion of the judgment awarding plaintiff back pay from the date of his suspension without pay until the date, some eight months later, when the police committee's decision was rendered. Having consolidated the two appeals, we now reverse the judgment insofar as it sustains plaintiff's removal from office and direct his reinstatement. We consequently dismiss the municipal appeal as moot.
We rest our decision on defendants' egregious violation of N.J.S.A. 40A:14-149, which requires the hearing on disciplinary charges against a suspended police officer to be held within 30 days after the service of a copy of the complaint upon him. Beyond that, we have grave doubts that the record of the hearing before the police committee supported its adjudication. We are also constrained to conclude that the Law Division failed to provide plaintiff with the required de novo hearing, applying rather the appellate substantial-evidence test to the police committee's action.
Explanation of our decision requires some detailed reference to the facts underlying the disciplinary charges. During the early evening of November 13, 1988, a few minutes after 7:00 p.m., plaintiff, then a relatively new officer with little more than a year's experience, heard a transmission on his patrol car radio reporting the theft of an automobile which its owner had left with its engine running while picking up a food order at a local restaurant. Recalling that parts of stolen cars had been found at a near location in an adjacent town, he drove to that location and spotted the stolen car at the curb in front of 19 Thomas Road within minutes after the report of the theft. Donald Golaszewski, who lived at that address, and his half-brother Robert Poltorak, who was then visiting there, were arrested within minutes after plaintiff's arrival, charged with receiving stolen goods, indicted and stood trial. The disciplinary
charges against plaintiff arose out of his grand jury and trial testimony against Golaszewski and Poltorak.
Plaintiff testified at both proceedings that when he first saw the stolen vehicle, he saw Poltorak exiting from the driver's side and Golaszewski exiting from the passenger side. Poltorak approached plaintiff, told him he was out of his jurisdiction, and used abusive language. Poltorak then followed Golaszewski into the house. Plaintiff then called for backup, and several officers arrived. Looking through the windows, the officers saw a group of young people in the house. Their knocking on the door was finally responded to by Poltorak, and he and Golaszewski were arrested. The arrest and the charges were based upon plaintiff's statement that he saw those two exit the stolen vehicle. It should be added that plaintiff knew Golaszewski. It appears that Golaszewski had dated plaintiff's girl-friend before plaintiff's relationship with her.
Plaintiff's testimony at Golaszewski's and Poltorak's criminal trial was entirely consistent with his grand jury testimony. After the State rested, the defense called a group of witnesses who gave a different version. None of these witnesses was, however, disinterested. This is the story they told. Poltorak, Golaszewski, and Golaszewski's girlfriend spent the afternoon at a local tavern, drinking beer for four hours and watching football. Their presence there was confirmed by the barmaid, a friend of Golaszewski's mother, who thought they had left between 7:00 and 7:30 p.m. It was the testimony of the three that when they left the bar in Poltorak's truck at about 7:00 p.m., they drove a casual acquaintance home, spent some time with him there, and then drove on to 19 Thomas Road. The acquaintance was not called as a defense witness. When the three arrived at the Thomas Road house, the story continues, Golaszewski and his girlfriend entered first. Poltorak, noticing plaintiff and his patrol car, stopped to speak to him. Poltorak's version of the conversation was not much different from plaintiff's. Poltorak then followed the others into the house. None of the three had noticed the stolen car.
At the time Poltorak and Golaszewski and his girlfriend arrived at 19 Thomas Road, there were three other persons in the house: Keith Golaszewski, a younger brother, who also lived there, and two of his friends. Those three also testified to substantially the same events. According to them, just minutes before they had seen Poltorak, Golaszewski and Golaszewski's girlfriend arrive in the truck, a young man named William Brine, a friend or at least an acquaintance of the Golaszewski brothers, had come to the house, told Keith that he had a relative's car and did not know how to turn out the lights, and asked Keith to come out and do it for him. Keith did so and Brine entered the house. By the time Keith had accomplished this task and reentered the house to talk to Brine, Brine had already left via the back door. Brine, previously involved with car thefts, had been subpoenaed to testify at trial. He denied any knowledge of the stolen car and denied that he had been to 19 Thomas Road that day.
Following the testimony of the defense witnesses, given on May 17, 1989, the assistant prosecutor, who must not have known what the tenor of the defense would be, was extremely troubled by the contradiction of plaintiff's testimony by the two defendants and their four friends, who had all placed defendants in a different vehicle at the very time plaintiff asserted that he had seen them exiting the stolen vehicle. The assistant prosecutor reported the matter to his superiors who apparently formed the Conclusion, presumably based on plaintiff's association with Golaszewski's former girlfriend, that it was plaintiff who had lied. The South Bound Brook police chief was advised of this "problem" the next morning, May 18, 1989, and plaintiff was then summoned to the prosecutor's office, where he was subjected to a continuous two hours or so of interrogation by an experienced detective lieutenant. There were no witnesses to the interrogation and no simultaneous record made. According to the testimony of both plaintiff and the interrogator given at the ensuing disciplinary hearing, plaintiff was upset and nervous. He was badgered and not permitted to leave the
interrogation room, and he finally admitted that he had a reasonable doubt as to whether the persons he had seen were in fact the two defendants in the criminal trial. Ultimately, the criminal charges against the two defendants were dismissed.
After the prosecutor's office had finished with him, plaintiff was handed over to his police chief, who interrogated him at police headquarters. The record suggests that much the same sort of interrogation took place. Although police regulations required a verbatim recording, none was made. The chief's subsequent explanation was that he had no access to a tape recorder. Another officer disputed this proposition at the ...