On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-147-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and C.L. Miniman.
Teamsters Local Union No. 177 appeals from an order of June 7, 2007 granting the cross-motion of defendant United Parcel Service (UPS") "to inspect and release the files and records and the information contained therein" relating to the arrest of defendant's employee, F.M., on March 19, 2004. The released material had been expunged pursuant to a prior order of the court. See N.J.S.A. 2C:52-1 to -32. The June 7, 2007 order also permitted Essex County Prosecutor's Investigators John Gomes and Robert O'Neil to testify at an arbitration hearing being conducted "for the purpose of determining whether UPS had just cause to discharge [F.M.] on March 31, 2004."
In its verified petition, the Union challenged the subpoenas served on the investigators. It asserted that "the appearance and testimony of investigators of the Essex County Prosecutor's Office at the discharge arbitration proceeding [was] expressly barred by the Expungement Order."*fn1 In support of its cross-motion to release the expunged records and information, UPS produced the affidavit of its security supervisor Richard Smith. According to Smith:
2. On March 19, 2004, members of the Essex County Narcotics Task Force ("ECNTF"), including Investigator John Gomes and Robert O'Neal, informed UPS management that (a) it arrested [F.M.] on the corner of 6th Street and 11th Avenue in Newark, New Jersey; (b) they observed [him] distribute 13 bags of marijuana (weighing approximately one lb. each) to a cooperating witness; (c) [F.M.] distributed the marijuana from his UPS vehicle; and (d) it had been investigating [F.M.] for about one month based on information provided by a confidential informant.
3. On March 19, 2004, I went to the corner of 6th Street and 11th Avenue in Newark, New Jersey. When I arrived at the scene, the back of [F.M.]'s package car was open and the ECNTF investigators were inside the vehicle.
4. I observed and photographed the 13 bags of marijuana in a UPS driver release bag which was in a General Electric ("GE") box. These photos were taken outside the package car at the scene of the arrest.
5. UPS consented to a search of [F.M.]'s package car. I observed the ECNTF investigators place the 13 bags of marijuana inside the GE box and back inside the package car.
6. The ECNTF conducted a K9 search of [F.M.]'s delivery vehicle, and the dog repeatedly pawed the GE package. The K9 unit dog did not react to any other parcel in the vehicle.
7. I learned that [F.M.] was charged with possession of controlled dangerous substances ("CDS"), distribution of CDS, distribution of CDS within 1,000 feet of a school, conspiracy to distribute CDS, possession with intent to distribute CDS, and possession with intent to distribute CDS within 1,000 feet of a school. I obtained a copy of the Essex County Prosecutor's Office's arrest report dated March 19, 2004.
8. UPS held a hearing on March 31, 2004 in the presence of [F.M.] and his union representatives. [F.M.] told UPS management that the ECNTF investigators pulled him out of his delivery vehicle. At the conclusion of the meeting, UPS discharged [F.M.] for misappropriation of UPS ...