On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-570-00.
Before Judges Skillman, Cuff and Lefelt.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 18, 2002
A Middlesex County trial judge ordered defendant Borough of South River to reimburse plaintiff Patrolman Christopher Monek for his attorneys' fees and costs incurred in defending official misconduct, aggravated assault and witness tampering criminal charges. South River appeals, contending Monek's complaint in lieu of prerogative writs was untimely under R. 4:69-6(a), and that reimbursement was precluded by N.J.S.A. 40A:14-155, because Monek's conduct did not arise out of and directly relate to the lawful exercise of police powers in furtherance of his official duties. We conclude that the trial court properly considered Monek's complaint, but find that the fees and costs associated with the witness tampering charge were not reimbursable. Accordingly, we remand to the trial court to eliminate from the reimbursable fees and costs those associated with the witness tampering charge.
I. The Underlying Incident
On August 3, 1997, Monek and officer-in-training Richard Benedict responded to Gary Brown's residence to deal with Brown's threat to kill his brother. Monek was senior officer on the dispatch and also had been temporarily assigned as Benedict's training officer at the time of the dispatch. The officers had some difficulty gaining access to the residence, but eventually Brown was arrested and taken to headquarters.
While Brown was quite drunk and uncooperative, he was finally booked, searched thoroughly and placed in a holding cell. Brown continued"to holler and scream and... bang on the cell doors." Monek and Benedict went to the cell to try and quiet Brown.
According to Monek, Brown hit his head on the cell bars while thrashing around before Monek entered the cell. Benedict did not see Brown hit his head. He saw Monek attempt to grab Brown and wrestle him onto a cot. At that point, Benedict saw that Brown had"like a trickle on the side, like a little thing of blood coming down the side of his head." The officers bandaged Brown with some gauze.
Later, Monek told Benedict what happened so that Benedict could prepare the police report. Monek said:"Brown was thrashing around in the cell, we went in there to calm him down, and he had an injury and stuff and we treated it." Monek also told Benedict that he saw Brown hurt himself. Benedict wrote his report recounting the incident as described by Monek and stated that both he and Monek had seen Brown strike his head on the bars.
According to Brown, he was placed in a cell, not told what the charges were, and not given access to a phone. He admitted being"pretty loud about getting a phone call." That's when Monek came into the cell and"pushed up against [him] with his chest, pushing [him] back. And then [Monek]... hit [him] in the eye.... then [he] got hit in the - right up in the forehead and knocked... out." Brown then remembers"[w]aking up in a pool of blood."
II. The Subsequent Proceedings
Three weeks later, Lt. Kolakowski, an Internal Affairs Officer, began an investigation of the incident. When Benedict, concerned about the investigation, asked Monek what he should say, Monek told him to"just stick to the report, keep it simple, and it won't be a problem."
On November 5, 1997, the State charged Monek with second degree official misconduct for committing aggravated assault, N.J.S.A. 2C:30-2; second-degree aggravated assault, N.J.S.A. 2C:12-1(b); and third-degree witness tampering for attempting"to induce or otherwise cause [Patrolman] Richard Benedict to testify or inform falsely," N.J.S.A. 2C:28-5(a).
On November 13, 1997, Lt. Kolakowski charged Monek with ten violations of the South River Police Department Rules and Regulations. The discipline hearing was held in abeyance pending disposition of the criminal charges.
In early 1998, the criminal charges were presented to the Middlesex County Grand Jury. On February 4, 1998, the Grand Jury downgraded the official misconduct to simple assault under N.J.S.A. 2C:12-1(a); the aggravated assault to improper behavior, disorderly conduct, ...