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In re Cofone


July 16, 2008


On appeal from the Merit System Board, Docket Nos. 2001-4878 and 2004-151.

Per curiam.


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 discussed the events at the grandmother's home.

C.F. and her mother testified that in November 2000, they were at the Tradewinds nightclub where they met Cofone. Cofone and C.F. exchanged telephone numbers. He gave them a Middletown Police business card and subsequently, he and C.F. went on three dates. The first one took place at Chubby's, a bar, and then Cofone's house, where the two watched television. The second date took place at a bar and a coffee house.

The third date is when the alleged sexual assault took place. C.F. drank one glass of wine at dinner and then two more at Chubby's. She felt "woozy" so Cofone carried her to his car. She began "blacking in and out." Cofone drove her to his house and helped her inside. She remembered seeing his housemate. Then, she recalled being in his bedroom unable to move or speak, then being raped. She also recalled being in a hot tub with Cofone, feeling "pressure in my vagina." At approximately 4:00 a.m., Cofone dropped C.F. home.

The next afternoon she woke up feeling woozy, unable to recall the night before, and felt her vagina was irritated. She was upset and told her mother that she thought she had been raped. She called the Riverview Rape Crisis Center to report the incident. She met with an Assistant Monmouth County Prosecutor, took medical tests and signed a formal statement.

A few days later, as requested by the Prosecutor, C.F. called Cofone. Detectives taped the conversation. Initially, Cofone denied having sex with C.F. Then he admitted to having intercourse twice with her, saying she was very aggressive. He also informed her that he used a condom during intercourse in the bedroom. However, in the hot tub he did not. He also acknowledged that C.F. was violently sick.

C.F.'s mother testified that following the third date, C.F. told her that her vagina was swollen and she was in pain and she could not recollect the night before. C.F. and her mother concluded she was raped.

Dinardi testified that she remembered C.M. and Cofone having drinks at the bar. Cofone bought four to five drinks for C.M. C.M. appeared drunk. She and Cofone were acting "lovey dovey."

Middletown Deputy Chief Robert Oches testified that he performed the Internal Affairs investigation. After the criminal acquittal, Oches's investigation determined that C.M. was underage when Cofone brought her to two bars and gave her drinks. An interview with Somerville and the December 1999 police report concerning the obscene phone calls confirmed that Cofone knew C.M.'s age. A statement from Dinardi provided that she did not proof C.M. because Cofone was with her.

It was Oches's conclusion that Cofone violated several rules of conduct in taking sexual advantage of the underage female. Additionally, Cofone had made unauthorized use of a business card, and testified inaccurately about his training as to alcohol and prescription drugs.

The ALJ precluded testimony from Dr. Safterstein about the BAC levels of C.M. and C.F. Sergeant Kolodzieski testified about the course he taught Cofone, but not about the Field Sobriety course taught to Cofone by another instructor.

Middletown filed exceptions, arguing that the first ALJ improperly precluded: fact testimony by L.W.; expert testimony by Dr. Saferstein regarding C.M.'s intoxication level and blood alcohol content (BAC); and fact testimony by Sergeant Koldzieski regarding Cofone's training on alcohol/drug intoxication. The Board remanded the matter to the ALJ.

On remand, Middletown moved to recuse the first ALJ. The ALJ determined that the three challenged evidentiary rulings were within her sound discretion, pursuant to N.J.S.A. 52:14B-10(a), and therefore there was no basis for her disqualification. However, Laura Sanders, the Chief ALJ, granted Middletown's motion for recusal.

ALJ Metzger conducted the remand hearing. The proofs at the remand hearing can be summarized as follows. L.W. testified that on May 5, 2000, she went to Redheads with a friend and met Cofone and two other off-duty police officers. L.W. had four to five wine spritzers. Everyone left and Cofone agreed to drive her home. L.W. began to feel "fuzzy" and she became semi-conscious. She remembers being in his bed unable to speak or move, with Cofone on top her. He drove her home early in the morning.

She woke up in her bed clothed, but without her underwear. She told her friend Joyce that she had been "drugged and . . . raped." She did not report this to the police because her mother, with whom she lived, was terminally ill. L.W.'s mother died a few weeks later.

In March 2001, she learned of the other complaints and went to the Prosecutor. Her complaint was later no billed by the Grand Jury.

Dr. Saferstein testified on remand as to C.M.'s and C.F.'s BAC. C.M.'s BAC was approximately .25% based on the testimony of Cofone as to the amount of drinks they consumed. As for C.F., her BAC was approximately .15% to .19%. However, Dr. Saferstein admitted on cross-examination that if C.M.'s and C.F's recollections were accepted as to how many drinks each was served, the peak BAC level of each would have been significantly lower, approximately .06%.

Kolodzieski also testified on remand with respect to the Standardized Field Sobriety course Cofone took in April 2000.

The course consisted of training officers to recognize signs of intoxication.

ALJ Metzger found that the charge of conduct unbecoming a police officer was established as to Cofone's conduct with C.F. and C.M. He noted that when "[t]aken together, . . . the three women present a narrative not easily brushed aside." ALJ Metzger found that "the evidence preponderates in favor of a finding that [Cofone] took advantage of C.F. while she was in an incoherent state." He also recognized that "police officers are entrusted with delicate assignments and they must behave in ways that engender respect." Additionally, the ALJ determined that "[t]he matter of the unauthorized business cards is relatively undisputed." Based on the foregoing, the ALJ recommended that Cofone be dismissed from his position as a police officer.

Cofone filed exceptions. The Board adopted ALJ Metzger's findings and recommendations and rejected Cofone's exceptions.

On appeal, Cofone contends:


(a) Appellant Can Raise This Issue on Appeal Now Because The Prior Motion For Leave to Appeal was Denied Without Consideration of the Merits of the Recusal of [the first ALJ].

(b) The Law of Rucusal Required that [the first ALJ] Remain On the Case.

Cofone argues that the Board's remand was arbitrary, capricious, unreasonable or unsupported by substantial, credible evidence contained in the record. Cofone argues that instead, the Board should have deferred to the credibility findings of the first ALJ and simply upheld her findings. We disagree.

Our review of administrative agency decisions is a limited one. Appellate courts should not "overturn such a decision 'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence.'" In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). An ALJ may "exclude any evidence if he finds that its probative value is substantially outweighed by the risk that its admission will either" cause undue prejudice or delay. N.J.S.A. 52:14B-10(a). Such evidentiary rulings are governed by the familiar abuse of discretion standard. See State v. Erazo, 126 N.J. 112, 131 (1991); Benevenga v. DiGregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Thus, "the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its findings are so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

Here, the Board did not reject the credibility determinations of the first ALJ. Rather, the Board found that the first ALJ prematurely excluded relevant probative evidence which would have "served[d] to either validate the first ALJ's credibility determinations with respect to C.M. and C.F., or bolster the notion that [Cofone]'s behavior was sufficiently similar in the L.W. matter and indicative of the reprehensible behavior for which he was charged."

We conclude that the Board's determination to remand the case to the OAL was proper because the first ALJ improperly precluded relevant and probative evidence. The testimony should have been admissible to prove intent or motive. See State v. Cusick, 219 N.J. Super. 452, 464 (App. Div.), certif. denied, 109 N.J. 54 (1987). Additionally, as the Board found, the evidence was crucial to lend support to the credibility of the witnesses testifying in support of the charge. See Scouler v. City of Camden, 332 N.J. Super. 69, 75 (App. Div. 2000) (remanding a case where the evidence of retaliation was excluded, which could have resulted "in the exclusion of evidence critical to a fair and reliable evaluation of the credibility of the witnesses testifying in support of the charge.").

Based on the foregoing, the Board's determination that the ALJ abused its discretion in making the evidentiary determinations to exclude highly probative evidence and its subsequent remand of the matter was not arbitrary, capricious, unreasonable or unsupported by substantial, credible evidence contained in the record, and therefore was proper.

Cofone also contends that the first ALJ should not have been recused. We disagree.

A judge should be recused when the judge has committed to a conclusion on credibility. It can be inferred from the record whether a judge has improperly given his opinion in an action. If the judge prematurely excludes evidence, one can infer that the judge has wrongly made premature conclusions on credibility without all the evidence. See In re Guardianship of R.G. and F., 155 N.J. Super. 186, 195 (App. Div. 1977) (remanding and ordering reassignment of the case to a different judge because the "judge who heard the matter below ha[d] already engaged in weighing the evidence and ha[d] rendered a conclusion on the credibility of [a party's] witnesses."). As such, once "[t]he trial judge has 'given his opinion upon a matter in question in the action', within the meaning of R. 1:12-1(d), and although this mistake was certainly inadvertent and with good intentions, he should be disqualified from hearing the matter as a factfinder on remand." Ibid.

Cofone's reliance on Fox v. Morris County Policemen's Ass'n, 266 N.J. Super. 501 (App. Div. 1993), certif. denied, 137 N.J. 311 (1994), is misplaced. There, the Law Division judge reversed an arbitration award and remanded the matter to the same arbitrator. Id. at 510. The arbitrator had refused to reopen the matter to accept additional testimony and misapplied the proper legal principles. Id. at 514-15. Therefore, we correctly determined that the case was distinguishable from other recusal cases because "the hearing here was ostensibly closed when the employer tried to introduce new testimony." Id. at 521. In other words, we were unable to infer from the record that the judge improperly "g[ave] his opinion upon a matter in question in the action" pursuant to Rule 1:12-1(d).

Here, Middletown moved to recuse the first ALJ because of multiple evidentiary errors and because the ALJ "had given [an] opinion upon a matter in question[.]" N.J.S.A. 2A:15-49(c). Chief ALJ Sanders granted the motion. The first ALJ's determinations were improper assessments of credibility and therefore assignment to a different ALJ was the correct decision.

Cofone also contends:


We disagree.

The scope of appellate review is restricted when error in the factfinding of an administrative agency is alleged. In Re Taylor, 158 N.J. 644, 656 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). An administrative decision will not be upset unless it is arbitrary, capricious or unreasonable or it is insufficiently supported by the record. Carter, supra, 191 N.J. at 482. An administrative decision is given a strong presumption of reasonableness. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). We merely decide whether factfindings made or adopted by the administrative agency could reasonably have been reached on "sufficient credible evidence present[] in the record, considering the proofs as a whole[.]" Ibid. (internal quotation marks omitted). We give "due regard" to the ability of the fact finder to judge credibility. Ibid. It is not the function of a reviewing court to substitute its independent judgment on the facts for that of an administrative agency. Carter, supra, 191 N.J. at 483.

Here, the Board found that Middletown established, by a preponderance of the credible evidence, that Cofone's behavior was unbecoming of a police officer and/or violated known policy. Specifically, the Board accepted ALJ Metzger's finding that Cofone's actions demonstrated "a willingness to exploit human frailty, a telling shortcoming in a policeman." The record supports this conclusion and we perceive no basis to disturb it.

Cofone also contends:


We are not persuaded. We agree with Middletown's argument and the Board's conclusion that "given the petitioner's egregious conduct and the severity of his offenses, the penalty of termination 'is neither unduly harsh nor disproportionate to the offense and should be upheld.'"

In In re Herrmann, 192 N.J. 19, 33-36 (2007), our Supreme Court determined that progressive discipline is not required by law. The Court held that, "[a]lthough progressive discipline is a recognized and accepted principle that has currency in the [Board]'s sensitive task of meting out an appropriate penalty to classified employees in the public sector, that is not to say that incremental discipline is a principle that must be applied in every disciplinary setting." Id. at 33. Furthermore, the Court noted:

To the contrary, judicial decisions have recognized that progressive discipline is not a necessary consideration when reviewing an agency head's choice of penalty when the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest. [Ibid. (emphasis added).]

Moreover, "[i]t must be recognized that a police officer is a special kind of public employee." Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). An officer, whose "primary duty is to enforce and uphold the law[,] . . . carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public." Ibid. An officer "represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public, particularly in a small community . . . ." Ibid.

This court must "accord substantial deference to an agency head's choice of remedy or sanction, seeing it as a matter of broad discretion, . . . especially where considerations of public policy are implicated." Herrmann, supra, 192 N.J. at 30-31. Upon review of this record, we conclude that the sanction imposed on Cofone by the Board was not excessive.



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