On appeal from the Merit System Board, Docket Nos. 2001-4878 and 2004-151.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued January 23, 2008
Before Judges A. A. Rodríguez, Collester and C. S. Fisher.
Petitioner Christian Cofone appeals from a final administrative decision of the Merit System Board (Board), adopting the findings and recommendation of Administrative Law Judge (ALJ) Solomon A. Metzger, who upheld the decision of the Middletown Township Public Safety Department (Middletown) to terminate Cofone from the position of patrol officer. We affirm.
Middletown charged Cofone with bringing C.M., a twenty-year-old woman, to a bar on October 29, 2000 and causing her to become inebriated and then sexually assaulting her. Similarly, Middletown charged him with sexual assault on C.F., a twenty-one-year old woman, on November 9, 2000. Cofone was also charged with having unauthorized business cards.
Cofone became a Middletown Police Officer in 1991. In 2000, three women, C.F., C.M and L.W., went on separate dates with Cofone. Each woman complained that they were rendered incapacitated, taken to his house and sexually assaulted. C.M. and C.F. filed complaints with the Monmouth County Prosecutor. Cofone was indicted on these charges. Immediately thereafter, Cofone was suspended by Middletown. L.W., a thirty-six-year old woman, filed a similar complaint against Cofone after she read about the criminal charges in the newspaper. Cofone was tried and acquitted of the charges brought by C.M. and C.F.
The following month, the three victims filed civil complaints against Cofone, Middletown and its Police Department and other parties. Cofone was subsequently served with a preliminary notice of disciplinary action seeking his removal based on the charges filed against him by C.M. and C.F. Following a departmental hearing, Middletown entered a final notice of disciplinary action, sustaining the disciplinary charges and removing Cofone effective June 23, 2003.
Cofone appealed to the Board, which referred the matter to the Office of Administrative Law as a contested case. The first ALJ conducted a hearing. The ALJ found that the disciplinary charges against Cofone had not been substantiated, except for the charge of unauthorized use of unapproved business cards. She recommended that Cofone be reinstated as a police officer and that a letter of reprimand be issued to Cofone and placed in his personnel file as a sanction for the unauthorized use of the business cards.
The proofs at the first hearing can be summarized as follows. All witnesses were sequestered.
C.M. testified that the first time she met Cofone was when he responded to her home regarding her complaint about obscene telephone calls. At this time, Cofone took down her name, age and date of birth.
Approximately ten months later, the two met by happenstance at the Marina Diner, chatted and exchanged phone numbers. Subsequently, they met several more times in the same manner.
At one of these chance meetings, Cofone sat at the diner table with C.M. and her friend Kristen Somerville. Both C.M. and Somerville testified that during this meeting, C.M.'s driver's license was displayed and a discussion of her age ensued. She was twenty years old at this time. Cofone contended that this discussion never took place. A few days later, on October 29, 2000, Cofone went to C.M.'s home. He talked with her parents, her sister and the sister's fiancé and looked at photographs. According to Cofone, he believed C.M. was over the age of twenty-one because in the family photos C.M. was drinking alcohol.
Cofone said that after leaving the house, he and C.M. were going to Redheads, a local bar/restaurant. C.M. replied she was underage and did not "even know if they'll let me in there." Cofone replied that it was not a problem. C.M. admitted to previously drinking alcoholic drinks and to being on prescription medication for manic depression for several years.
At Redheads, Cofone ordered alcoholic drinks for both he and C.M. The bartender, Donna Dinardi, was a girlfriend of another police officer and was acquainted with Cofone. C.M. testified that she recalled the first two rounds of drinks. Then she became queasy and lost count. She told Cofone that she was not feeling well and asked to go home. He told her to have another drink and ordered her a Kamikaze.
Cofone then took C.M. to Untouchables, a go-go bar. Cofone continued to give her drinks. C.M. told him that she wanted to go home because she was fading in and out.
According to C.M., she then blacked out, but remembered being carried into Cofone's house. She saw his housemate in the living room. She recalled passing out and vomiting. She was barely conscious, but recalled him undressing her. She could not resist. She believed that her right hand was handcuffed to the bedpost. She told him to stop. At 4:00 a.m., Cofone drove her home.
She woke up the next morning feeling groggy. That afternoon C.M. talked to her mother and grandmother about what she thought had happened. She saw a gynecologist and went for counseling at the Women's Center.
Somerville testified that the next day, C.M. told her about the sexual assault. C.M.'s mother testified that her daughter appeared upset the day after her date with Cofone and that they ...