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Feltri v. Kelaher

April 30, 2008

SEAN FELTRI, PLAINTIFF-APPELLANT,
v.
THOMAS F. KELAHER (MISSPELLED "KELLAHER"), OCEAN COUNTY PROSECUTOR, OFFICE OF THE OCEAN COUNTY PROSECUTOR, AND COUNTY OF OCEAN, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-2685-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 15, 2008

Before Judges Winkelstein, Yannotti and LeWinn.

Plaintiff, Sean Feltri, was an investigator with the Ocean County Prosecutor's office. He appeals from a May 23, 2007 order of the Law Division affirming the prosecutor's termination of his employment. We affirm.

Since 2001, while an employee of the prosecutor's office, plaintiff received favorable job performance evaluations. He had, however, been involved in a physical altercation in 2003 for which he received a disciplinary charge and was temporarily suspended.

The events that resulted in plaintiff's termination occurred on the evening of June 5, 2005, beginning at approximately 11:30 p.m. A police patrol car was parked in front of Temptations bar, facing south on the shoulder of the northbound lane of the Boulevard in Seaside Heights, when plaintiff drove his car past. Both plaintiff and his passenger, Joseph Cohen, an off-duty police officer, had been drinking since approximately 4:00 p.m. Plaintiff had consumed six to seven beers and a "shot" of hard liquor.

Two on-duty police officers, Patrolmen Jason Mahr and Jason Mroczka, were in the parked patrol car when plaintiff drove by. They followed plaintiff's car and pulled it over into the parking lot of a bar. Mahr called Sergeant Thomas Yannacone for backup. Prior to Yannacone arriving, Patrolman Victor Tomaro also arrived on the scene. Plaintiff and the officers engaged in heated discussions. Ultimately, Yannacone demanded and received plaintiff's keys.

At approximately 12:43 a.m. on June 6, 2005, plaintiff called the Seaside Heights Police Department and left a voice mail message for Yannacone. The message was saved and transcribed. Plaintiff stated:

Hey let me tell you something, I know this line's being taped. I'm just gonna tell you this right now, I know that what you did was personal and let me tell you something. Those assholes had no probable cause to stop me and you had no probable cause to do what you [did] so I just hope you know that and I hope that you know that I'm gonna forward this information to whoever I can because you know what, you were fuckin, you went overboard and you're gonna pay the price.

Several minutes later, plaintiff again called Sergeant Yannacone.

Yannacone: Sergeant Yannacone.

Plaintiff: Hey Tommy it's Sean Feltri, how are you?

Yannacone: Okay.

Plaintiff: Good, Uh I just want to let you know I just uh left a message on your voice mail, I'm gonna be talking to your superiors about this so called motor vehicle stop that I was on and we're gonna hash it out during the week.

Yannacone: Sean that's fine, you do whatever you have to do. My officers were in the right, they did what they did and I did what I did and I felt that it was in your best interest due to the state of mind that you were in. If you want to debate that you have every right to do so.

Plaintiff: Great.

Yannacone: Okay?

Plaintiff: Thank you very much.

Yannacone: Take care.

The prosecutor brought three disciplinary charges against plaintiff stemming from these incidents: (1) misconduct pursuant to N.J.S.A. 2A:157-10.1; (2) conduct unbecoming an investigative member of the prosecutor's office; and (3) failure to report the incidents. A disciplinary hearing was held before Kenneth Fitzsimmons, a hearing officer, on July 19 and 22, 2005, where the officers involved in the incident testified. Plaintiff also testified, as did his supervisor in the prosecutor's office, and another officer, who saw plaintiff earlier in the evening on the date of the incident.

We will not repeat the verbatim testimony of the witnesses. Suffice it to say that officers Mahr and Mroczka, and Sergeant Yannacone, all testified that plaintiff appeared to have been drinking. He gave the officers a hard time, cursed them, used other derogatory language, and threatened their jobs.

Cohen testified that he and plaintiff were "impaired," but not "falling down" drunk. He did not hear plaintiff use the word "fuck," but plaintiff was "arrogant" to the officers. Cohen testified that plaintiff did ...


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