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State v. Dowd


September 4, 2008


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 16-07.

Per curiam.


Submitted August 26, 2008

Before Judges Lisa and Simonelli.

Debra Cummins-Curry appeals from the May 17, 2007 Law Division order dismissing her complaints against defendant, Robert Dowd, for lack of probable cause. Her principal argument is that the trial court failed to recognize the "law enforcement exception" to the probable cause requirement and therefore erred in treating her complaint as a citizen's complaint, rather than one brought by a law enforcement officer, which requires no independent judicial finding of probable cause. Appellant further argues that the matter should be removed from the North Bergen Municipal Court and transferred to a neutral forum, and that the failure of the municipal court judge to make a record of the dismissal of the summons warrants reversal. We reject these arguments and affirm.

Appellant is a patrol officer of the North Bergen Police Department. Dowd is a lieutenant in that department. The two incidents giving rise to three complaints occurred in the North Bergen police station, while both parties were in uniform and on duty. In support of the complaints appellant filed, she submitted a copy of her four-page letter addressed to the internal affairs unit of the North Bergen Police Department, which dealt primarily with matters other than those forming the basis of the complaints against Dowd. The letter contained these contentions regarding the incidents underlying the complaints:

On January 30, 2007 at approximately 5:00 p.m., while assigned to desk duties Lieutenant Robert Dowd approached the desk standing to my right. (I was facing the window) At this point I informed him that I would sign him off duty. I had a piece of scrap paper in my left hand. He reached across my chest making contact with either his forearm or his elbow and grabbed the scrap paper from my hand without comment. It is my belief that his actions were an assault and an attempt to intimidate me. He then wrote four names on the scrap paper, placed it on the desk and walked away. This incident should have been captured on the department's in-house video system. I am requesting that this video be examined and preserved.

On January 31, 2007 at approximately 3:15 p.m., while walking to the detective bureau to make a copy of the daily roster, Lieutenant Dowd was walking out of the detective bureau area. As we were passing in the hallway, Lieutenant Dowd intentionally made contact with me using his left shoulder area to strike me on my right shoulder as we passed. Lieutenant Dowd recognized me in the hallway and made no attempt to avoid me or the impact. Once again it is my belief that Lieutenant Dowd in his actions is attempting to intimidate and harass me.

Appellant signed a complaint charging Dowd with harassment, in violation of N.J.S.A. 2C:33-4b, arising out of the January 30, 2007 incident. She signed complaints charging harassment, in violation of N.J.S.A. 2C:33-4c, and simple assault, in violation of N.J.S.A. 2C:12-1a(1), arising out of the January 31, 2007 incident.

The municipal court treated the complaints as citizen's complaints, and therefore submitted them to the municipal court judge for a probable cause determination before issuance of a summons. See R. 3:3-1(b)(1); R. 7:2-2(a)(1). Without making any record of findings, the municipal court judge determined and noted on the face of the complaints that probable cause was not found.

Appellant filed an appeal from the municipal court action with the Law Division, seeking reversal of the adverse probable cause determination and seeking remand to a municipal court judge who did not sit in North Bergen. Appellant's counsel filed with the Law Division a certification stating that, upon his inquiry, a North Bergen municipal prosecutor informed him that he had no interest in pursuing an appeal of the adverse probable cause determination, but had no objection to appellant's counsel pursing it. At the Law Division hearing, the county prosecutor made clear its position that appellant lacked standing to appeal the municipal court determination and that the State would not proceed with the case.

The Law Division judge found that, pursuant to applicable court rules, appellant had no standing to appeal the municipal judge's finding of no probable cause. Further, conducting a de novo review of the probable cause issue, the Law Division judge found a lack of probable cause. These were his findings:

None of the complaints filed contains a sufficient factual basis on it's face upon which a finding of probable cause could be made. In fact, the appellant argues that the copy of the four-page letter that she submitted provided the Court with ample probable cause upon which a summons should've issued.

There are two faults with appellant's arguments. First a letter is just that, a letter. It's an unsworn -- it is unsworn, rather, and as such is nonevidential, and therefore meaningless in a probable cause determination. There was no sworn testimony before the Court. In short, there was no evidence for the Court to review. The complaints were completely unsupported by competent evidence and no judge from any municipality could have properly found them to have been supported by probable cause. Dismissal was and is the only proper judicial recourse.

Second, having reviewed the unsworn letter, I find that even if it had been in proper form, it lacks sufficient evidence to establish probable cause that the defendant committed these offenses. The letter contains largely irrelevant and unconnected facts, predominantly based upon hearsay. It also contains numerous allegations of violations of the collective bargaining agreement covering the complainant's employment.

Whether the Chief of Police or other persons may have violated the terms of an employment contract has nothing, whatsoever, to do with the finding of probable cause, as to this defendant. It is beyond reasonable dispute that the defendants cannot be guilty of conspiracy to commit a disorderly persons offense.

The remaining allegations may qualify as accepted as true, rudeness. But rudeness is not a criminal offense. Consequently, this appeal is dismissed.

Appellant argues before us, as she did in the Law Division, that her complaint should have been treated as one brought by a law enforcement officer, which requires no independent judicial finding of probable cause. See R. 3:3-1(b)(2); R. 7:2-2(a)(2). Ordinarily, as a matter of public policy, a summons may be issued on a complaint initiated by a law enforcement officer upon that officer's attestation of probable cause that the offense was committed and the defendant committed it, based upon the presumption "that most police officers perform their duties honestly, conscientiously, and well." State v. Gonzalez, 114 N.J. 592, 601 (1989). Consequently, in those circumstances, our court rules do not require that a probable cause finding be made by "a neutral and detached judicial officer." State v. Fisher, 180 N.J. 462, 472 (2004).

The rationale underlying the so-called law enforcement exception to the probable cause requirement is that, in the performance of their law enforcement duties, police officers are making a detached and objective assessment of the facts and circumstances they encounter and making a professional evaluation as to the existence of probable cause. However, that rationale dissipates in circumstances where, although the complainant is in fact a law enforcement officer, the subject matter of the complaint arises out of circumstances that are personal to the complainant, and where the complaint is brought to vindicate a perceived personal grievance. That appellant and Dowd were both in uniform and on duty when the incidents occurred is not dispositive. The conduct allegedly perpetrated against appellant did not arise out of the performance of her law enforcement duties or her status as a law enforcement officer. N.J.S.A. 2C:12-1b(5)(a). Appellant had a personal interest in these complaints. This is the very kind of situation in which a neutral and detached judicial officer should make the probable cause determination.

Based upon our determination that these complaints were properly treated as citizen's complaints, it follows that appellant, as the complainant, lacked standing to appeal the adverse probable cause determination. Although any person "aggrieved by a judgment of conviction" in the municipal court may appeal, R. 3:23-2, only the "prosecuting attorney" may appeal from "a pre-trial or post-trial judgment dismissing a complaint." R. 3:24(b). The "prosecuting attorney" in a case such as this is the county prosecutor. R. 3:23-9(c). An attorney for a complaining witness is authorized to act as the prosecuting attorney only with the assent of the county prosecutor and the consent of the court. R. 3:23-9(d). Those criteria were not met here, and, as we previously stated, the county prosecutor made clear that the State chose not to proceed with prosecution of these complaints.

Individual citizens cannot appropriate to themselves the law enforcement function. The responsible law enforcement agency in this case, fully familiar with the situation, chose to accept the adverse probable cause determination and not to proceed further with the matter. In those circumstances, the dismissal of the complaints is final.

Because of our concurrence with the Law Division judge's determination that appellant lacked standing, appellant's remaining arguments are moot. Because the matter does not warrant further judicial review, it will not be remanded to any municipal court, whether in North Bergen or elsewhere. And, even if the municipal judge had an obligation to state on the record his reasons for finding a lack of probable cause, any such deficiency was remedied by the Law Division judge's de novo consideration of the issue, accompanied by a statement of reasons. The appeal to this court is from the judgment of the Law Division, not the municipal court.



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