On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3667-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Skillman and Gilroy.
On October 18, 2004, defendant Arnold Borrero, then a Newark Police Officer, was involved in an altercation with a motorist while in the course of issuing her a summons for obstructing traffic. As a result, defendant was charged with various offenses, including simple assault, in violation of N.J.S.A. 2C:12-1(a)(1). Defendant was found guilty of this charge in the Newark Municipal Court in the fall of 2006. The municipal court judge imposed a non-custodial, non-probationary sentence that included a $250 fine and certain fees, assessments and costs.
The issue of the possible forfeiture of defendant's employment as a Newark Police Officer under N.J.S.A. 2C:51-2 was first raised at the conclusion of sentencing. The Assistant Essex County Prosecutor representing the State indicated that he would have to confer with his superiors to determine whether his office would apply for a waiver of such forfeiture. The municipal court judge continued the matter to another date to afford the Prosecutor's Office an opportunity to make this determination.
On that date, October 18, 2006, the Assistant Prosecutor advised the court that the Prosecutor's Office would not move for forfeiture of defendant's employment based on his conviction for simple assault.*fn1 In explaining the position of his office, the Assistant Prosecutor stated:
It was my position that this action would be too severe especially taking into account the fact that Officer Barrero's pension -- be at risk. (Phonetic)
It's the [S]tate's position that the fact that the Officer has been found guilty of the offense is sufficient to deter any future conduct of a similar nature.
We do also take into account his history as a police officer and, obviously, most importantly, the fact as -- the finding that this Court has placed on the record by Your Honor on Friday.
Although it may have been unclear from the Assistant Prosecutor's statement of position whether the Prosecutor's Office was affirmatively seeking a waiver of the forfeiture of defendant's employment or only declining to seek a forfeiture at that time, the municipal court judge construed the Assistant Prosecutor's statement as an application for waiver, and granted the application:
Pursuant to New Jersey statute 2C:51-2, subsection . . . E. Any forfeiture or disqualification may be waived by the court upon application by the county prosecutor and for good cause shown.
I'm satisfied that the provisions of that statute have been met. I will waive forfeiture or disqualification -- I'm satisfied upon application of the county prosecutor and I'm satisfied that good cause has been shown in this instance. Waived on good cause upon application of the prosecutor.
The Assistant Prosecutor did not indicate any disagreement with the municipal court judge's view of ...