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In re Carpenito

October 9, 2008

IN THE MATTER OF SERGEANT VINCENT CARPENITO BADGE NO. 4861


On appeal from the final decision of the Superintendent of the Division of New Jersey State Police, Docket No. 2005-723/2005-0724.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 10, 2008

Before Judges Cuff, Fisher and C.L. Miniman.

In this appeal from a final agency decision, which dismissed Sergeant Vincent Carpenito from the Division of State Police, we reject all Carpenito's arguments -- including his contention that the findings that he left his post while on duty and later gave inconsistent versions to investigators were against the weight of the evidence -- because the Superintendent's findings were based on Carpenito's admissions. We, thus, affirm.

I.

On March 24, 2006, Carpenito was charged with five disciplinary infractions of the rules and regulations of the Division of State Police: (1) abandonment of his post and failure to report his absence to his superior, in violation of New Jersey Police Rules and Regulations, Article V, § 13; (2) behavior "in an official capacity to the personal discredit of the member or to the discredit of the Division," id. at Article VI, § 2(a); (3) behavior "in an unofficial or private capacity to the personal discredit of the member or to the discredit of the Division," id. at Article VI, § 2(b); (4) making a false or misleading official statement or intentional misrepresentation of fact, id. at Article V, § 15; and (5) failure to obey a lawful order, specifically displaying "less than complete candor" during the investigation, id. at Article IV, § 3(a); N.J. State Police Standard Operating Procedure B-10; Internal Investigative and Disciplinary Procedures, § F, ¶ 3.

The case was transferred to the Office of Administrative Law as a contested matter. A seven-day hearing was conducted by an administrative law judge (ALJ), who issued an initial decision on July 5, 2007, finding Carpenito guilty of the charges against him and recommending termination of employment.

Colonel Joseph R. Fuentes, the Superintendent of the Division of State Police, adopted those findings of the ALJ that were based upon Carpenito's admissions and other undisputed facts, as revealed by his final written decision of August 16, 2007. As a result, he found, with the exception of the sexual assault referred to in the specifications, that the charges had been substantiated and, due to the egregious nature of the misconduct, dismissed Carpenito from the Division.

II.

Carpenito appealed to this court, raising the following arguments for our consideration:

I. THE FINAL DECISION BY THE SUPERINTENDENT OF THE DIVISION OF STATE POLICE WAS ARBITRARY AND CAPRICIOUS AND MUST BE REVERSED OR REMANDED WHERE THE FINAL DECISION (i) SUPPRESSED THE TRUTH BY ACCEPTING THE DECISION OF THE ADMINISTRATIVE LAW JUDGE THAT RELIED UPON PRIOR INCONSISTENT STATEMENTS MADE BY THE ALLEGED VICTIM WHO WAS IMPROPERLY ALLOWED TO AVAIL HERSELF TO THE PROTECTIONS OFFERED UNDER THE FIFTH AMENDMENT AT THE TIME OF THE HEARING[,] (ii) DENIED THE APPELLANT A FAIR HEARING BY CAUSING THE APPELLANT TO SUFFER A LOSS OF HIS RIGHT TO CONDUCT CROSS EXAMINATION OF THE ALLEGED VICTIM WHO WAS A CRITICAL WITNESS, (iii) ACCEPTED THE INITIAL DECISION THAT WAS AGAINST THE WEIGHT OF THE EVIDENCE[,] AND ([iv]) ACCEPTED EVIDENTIAL RULINGS OF THE INITIAL DECISION THAT IMPROPERLY ADMITTED AN UNDULY PREJUDICIAL TAPED TELEPHONE RECORDING INTO EVIDENCE.

II. THE FINAL DECISION BY THE SUPERINTENDENT OF THE DIVISION OF STATE POLICE WAS ARBITRARY AND CAPRICIOUS AND MUST BE REVERSED WHERE THE SUPERINTENDENT REMOVED THE APPELLANT FOR CAUSE WITHOUT IMPOSING PROGRESSIVE DISCIPLINE AND STATEMENTS OF THE ALLEGED VICTIM AND OTHER UNRELATED INCIDENTS WITH LOCAL POLICE THAT WERE INITIATED BY THE APPELLANT'S WIFE WHO ASSERTED HER RIGHTS UNDER THE FIFTH AMENDMENT AND WHO REFUSED TO TESTIFY OR ALLOW APPELLANT AN OPPORTUNITY FOR CROSS-EXAMINATION.

In examining these arguments, we are initially required to consider the standard of review, which, in this circumstance, is limited. We must give due regard to an administrative agency's findings of fact and expertise in the field upon which it relied to support its decision. In re Taylor, 158 N.J. 644, 655-58 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). In addition, a "strong presumption of reasonableness" attaches to agency decisions. In re Vey, 272 N.J. Super. 199, 205 (App. Div.), aff'd, 135 N.J. 306 (1994). Accordingly, we will not disrupt an agency's final decision unless the record reveals that the decision was arbitrary, capricious, or ...


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