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In re Castro

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 19, 2010

IN THE MATTER OF JOSEPH HUMBERTO CASTRO

On appeal from a Final Decision of the Division of State Police, No. 112004-60.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 23, 2010

Before Judges Wefing, Grall and LeWinn.

Joseph H. Castro appeals from a Final Decision of the Superintendent of the New Jersey State Police denying his application to serve as a police officer with the William Paterson State University Campus Police. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

In September 2002, Castro began working for William Paterson State University as a security guard and about a year later was promoted to security officer. In September 2004, he entered Passaic County's police academy and successfully completed the program. He graduated in January 2005, ranking eleventh in a class of sixty-six students and applied to become a member of the campus police force.

Prior to entering the police academy, Castro filled out a Personal Questionnaire for Background Investigation. One of the questions on the form inquired whether Castro had ever been arrested; the form provided one line to answer that question. On that one line, he entered that he had been arrested in New York on January 21, 1999, and that the charges had been dismissed. He attached to the form an addendum in which he listed two other arrests, both in New York--one on February 12, 2000, and one on July 26, 2001.

Detective Sergeant Susan Kamish of the New Jersey State Police was assigned to conduct a background investigation of Castro. As part of that investigation, she learned the circumstances of each of these arrests.

Castro was married at the time of the first arrest in 1999, and his wife told him that one of her co-workers was making passes at her at work. Castro drove to New York to the offices where his wife worked, intending to confront that co-worker, but he declined to meet with Castro. Castro returned to the garage where he had parked his car and found the police waiting; they told him they were responding to a call that he had threatened to beat the co-worker. They asked if they could search his car and he agreed; they found a baseball bat in the trunk. Castro was charged with criminal possession of a weapon and menacing. He appeared in court and entered a plea of guilty in return for a conditional discharge; the charges were to be dismissed if he successfully completed a probationary term, which he did.

During the proceedings below, Castro provided a further explanation. He said that he plays baseball every summer and that he leaves the bat in the car, even during the off-season.

Castro's second arrest was approximately one year later. Following a ball game, he and some of his teammates went to a bar in New York City and a fight erupted. He said he was "trying to basically pick people off of [his] friends who were at the bottom of the pile." Castro was hit on the head with a bottle and began to bleed profusely. He said all the participants were thrown out of the bar and that the altercation continued in the street. The police arrived and arrested everyone. He again pled guilty in return for a sentence of six months on probation, at the end of which the charges were to be dismissed. Castro successfully completed this probationary term.

His third arrest was approximately eighteen months later. He was charged with driving under the influence and reckless endangerment. He pled guilty, had his license suspended for a period and attended a compulsory program on drinking and driving.

Sergeant Kamish's investigation also showed that Castro had been involved in a series of disputes with the person who rented a house from him. Members of the Wayne police department had responded four times to this house, twice to calls from the tenant, twice to calls from Castro.

Sergeant Kamish submitted her report and in June 2005, the Superintendent wrote to Castro that he was denying his application to join the university police because "[t]he background investigation conducted by the New Jersey State Police has revealed you lack the character and integrity necessary for the designated commission." Castro appealed and a hearing was held in the Office of Administrative Law.

Following that hearing, the administrative law judge recommended sustaining the Superintendent's initial determination. The administrative law judge found that the "pattern of three recent arrests for risky behavior, occurring in quick succession within less than three years, is incompatible with the good character and integrity required to become a law enforcement officer sworn to uphold the law." He further found that "consistent with his two New York arrests for assault, Castro's interaction with his tenant demonstrates a lack of self-control and a readiness to escalate a minor disagreement into a major physical confrontation."

Castro filed exceptions to this decision. The Superintendent filed his Final Decision in September 2008, agreeing with the administrative law judge. The Superintendent's final decision included the following passage:

[A]lthough it was not addressed by the ALJ, I am particularly disconcerted by the lack of candor Castro demonstrated when completing the Personnel [sic] Questionnaire for Background Investigation. Inexplicably, he admitted to the 1999 arrest, but failed to disclose the arrests in 2000 and 2001.

Given that all of the arrests were ultimately concluded by dismissal of the charges, there was no reason for Castro to have admitted to one, but not the others.

Castro makes three arguments on appeal: that the Superintendent's findings are not supported by the record, that the Superintendent did not conduct an independent analysis of the record in accordance with Tharpe v. City of Newark Police Department, 261 N.J. Super. 401 (App. Div. 1992), and that his decision rested on inadmissible hearsay.

Before proceeding to analyze these contentions, we note the limited scope of our review of such a decision. A final administrative determination should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). An appellate court should undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985) (citing Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

In reviewing agency fact findings, "the role of the appellate court is that of determining 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the agency's expertise where such expertise is a pertinent factor.'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

The appellate tribunal must, however, make more than a perfunctory review; if there exists in the reviewing mind a definite conviction that the determination below went so wide of the mark that a mistake must have been made, the record can be appraised as if the matter were being decided at its inception. This sense of "wrongness" arises in several ways, among which are the lack of inherently-credible supporting evidence, the obvious overlooking or underevaluation of crucial evidence or a clearly unjust result. [613 Corp. v. State, Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986) (citations omitted).]

A reviewing court cannot engage in an independent assessment of the facts. In re Taylor, 158 N.J. 644, 656-57 (1999) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, the reviewing court also should not just rubber stamp the agency's decision; if not reasonably supported by the evidence, the decision should be reversed. Taylor, supra, 158 N.J. at 657.

Having reviewed this record, it is clear that the passage of the Superintendent's final decision that we have set forth is factually incorrect. Castro did not withhold any information when he filled out the background questionnaire; he fully and accurately answered each of the questions and openly disclosed the three arrests he had experienced.

The Division of State Police argues on appeal that this error is immaterial because the record contains sufficient other evidence to warrant the rejection of Castro's application. That assertion does not persuade us.

We consider our decision in Costantino v. New Jersey Merit System Board, 313 N.J. Super. 212 (App. Div.), certif. denied, 157 N.J. 544 (1998), instructive. In that case, we remanded for a new hearing after the Merit System Board terminated a state employee for conduct unbecoming in sexually harassing a co-worker. Id. at 213. We concluded it was necessary to remand the matter, even though the decision to terminate could have been reached on the record because the analysis of the record was skewed with a "selective discussion of evidence." Id. at 214, 218. Because of this faulty analysis, we had "no confidence that there was a fair consideration of the evidence." Id. at 224. We held that if the decision-making process was manifestly mistaken, the decision that had been reached was not entitled to deference, even if the decision itself was not manifestly mistaken. Id. at 225. Thus, even when there is sufficient evidence to support an administrative determination, all of the evidence must be fairly considered.

We note in this regard that Castro has pointed out that in addition to the significant factual error in the Superintendent's final decision, the decision of the administrative law judge also contains certain factual errors. Specifically, Castro was not twice arrested for assault, as the administrative law judge stated twice. He was arrested once for assault and once for possession of a weapon, the baseball bat.

We note also that the administrative law judge criticized Castro for not producing his former wife to testify in support of his version of what occurred with her co-worker. Castro had explained to Sergeant Kamish that he had had no contact with her for years and did not even know where she was living. The administrative law judge gave no reason for holding her absence against Castro.

It is impossible to tell the effect, if any, such errors had upon the final result achieved. As in Costantino, we cannot have any confidence that the entirety of the evidence was fairly considered. We thus remand this matter for further proceedings, at which the entirety of the record is to be fairly considered. Castro may seek to reopen the record and present evidence of his work history at the university during the time this matter has been pending and, in particular, the manner in which he has performed his duties as a security officer and whether he has received any disciplinary measures for his job performance. Because we are remanding this matter, we do not consider it necessary to address his remaining contentions.

The matter is remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

20100519

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