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State v. Browning

August 5, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRY BROWNING, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-5360.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 9, 2008

Before Judges Axelrad and Payne.

Jersey City mayor, Jerramiah Healy, and his wife, Maureen Healy, appeal from an order of Monmouth County Assignment Judge Lawson finding no abuse of discretion on the part of the Monmouth County Prosecutor when, after a Grand Jury no-billed the Healys' charges of aggravated assault and official misconduct against an arresting Bradley Beach police officer, Terry Browning, and declined to remand the charge of aggravated assault to the municipal court for trial as a simple assault, the Prosecutor dismissed disorderly persons complaints, pending in the municipal court, alleging on the basis of the same facts considered by the Grand Jury that Browning had committed simple assault and harassment.

On appeal, the Healys argue that the Monmouth County Prosecutor's administrative dismissal of the municipal court disorderly persons charges against Officer Browning constituted an abuse of discretion, requiring reinstatement of those charges. Although the State did not file a cross-appeal, it argues that Judge Lawson erred in granting standing to the Healys to challenge the Prosecutor's decision. The State additionally asserts that the decision constituted a proper use of discretion.

This matter arises from an incident occurring in Bradley Beach on June 17, 2006 when, following a celebratory evening spent in a bar owned by Mayor Healy's sister, during which time Mayor Healy consumed numerous beers, the Mayor attempted to intervene in a dispute between another bar customer, Jeffrey Barnes, and his girlfriend, Jacqueline Volante. After police officers William Major and Terry Browning arrived, Healy refused orders to leave the scene because he was interfering with a police investigation, gesticulating at Browning with his finger and proclaiming his position as mayor and his friendship with the Chief of the Bradley Beach police. After being warned several times, a scuffle between Healy and Browning ensued, during which Browning attempted to handcuff Healy, succeeding only after the use of pepper spray. Healy's wife fell or was knocked to the ground during the affray.

Following the June incident, Healy was charged with and convicted in municipal court of obstruction of justice, N.J.S.A. 2C:29-1 and resisting arrest, N.J.S.A. 2C:20-2a(1). A conviction for disorderly conduct, N.J.S.A. 2C:33-2a(1) and -2b was merged into the obstruction conviction and dismissed. Healy's convictions were affirmed following trial de novo in the Superior Court and upon appeal. See State v. Healy, No. A-681-07T4 (App. Div. July 3, 2008).

Following Healy's arrest, Healy requested that the Monmouth County Prosecutor's Office investigate the conduct of arresting officer Browning. The Professional Responsibility Unit of the Monmouth County Prosecutor's Office did so, in conjunction with the Internal Affairs Unit of the Bradley Beach Police Department. No discipline resulted.

Two months after Healy's arrest, on August 18, 2006 Healy also filed a criminal complaint against Officer Browning alleging third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and both he and his wife filed criminal complaints against Browning charging second-degree official misconduct, N.J.S.A. 2C:30-2a. Additionally Healy filed charges in municipal court alleging the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a(1), and the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4b. His wife filed similar disorderly persons charges. The Healys also filed a notice of tort claim against Officer Browning and the Bradley Beach Police Department, but have not instituted civil actions against either.

The indictable charges were presented to a grand jury by the Monmouth County Prosecutor's Office over the course of four days in November and December 2006. Eighteen witnesses testified, including the Healys and Officer Browning, presenting divergent views of what had transpired. At the conclusion of the prosecutor's presentation of witnesses and the law, on December 18, 2006, the grand jury no-billed the two indictable charges and declined to remand the aggravated assault charge to municipal court as a simple assault.

The same day, the Monmouth County Prosecutor's Office administratively dismissed the disorderly persons charges pending in municipal court. A lengthy press release issued by the Prosecutor's Office, following the grand jury's action, stated in part:

As the result of the Grand Jury's decision not to return an indictment against Officer Browning as well as a careful and fact sensitive analysis of the totality of the circumstances surrounding the arrest [of Healy], the Monmouth County Prosecutor's Office has administratively dismissed the remaining disorderly persons and petty disorderly persons offenses (i.e. two counts each ...


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