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State v. Dowd

September 4, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT DOWD, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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