On appeal from the Superior Court of New Jersey, Essex County, Law Division, Docket No. L-8226-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and J. N. Harris.
New Jersey Transit Patrol Officer Jonathan Giles appeals from the February 27, 2009, order dismissing his verified complaint in lieu of prerogative writs with temporary restraints filed against defendants New Jersey Transit Police Department (NJTPD), a division of the New Jersey Transit Corporation. We affirm the dismissal.
On August 7, 2007, plaintiff Giles, along with other officers of the
NJTPD, were involved in an on-duty arrest of Donald Brady*fn1
and Jamal Pittman (the incident). As a result of the
encounter, on August 9, 2007, Brady filed a civilian complaint with
the Internal Affairs Division (Internal Affairs or IAD) of the NJTPD
against the officers alleging that he was the victim of a robbery in
Hoboken, New Jersey, and was wrongfully arrested by both NJTPD
officers and Hoboken police officers.
On August 10, 2007, Maureen Scianimanico, Senior Investigator (the investigator) in Internal Affairs, was assigned by Captain Edward Iandoli to investigate the complaint filed by Brady. On August 23, 2007, Giles was notified by Internal Affairs that he was the "subject officer" of the Brady civilian complaint. On August 27, 2007, Scianimanico interviewed Brady concerning the civilian complaint and subsequently met with Iandoli and other members of the Detective Bureau who had commenced an investigation of the incident. The meeting concluded in a determination that the Detective Bureau would continue a criminal investigation regarding the allegations raised by Brady. On August 30, 2007, the Internal Affairs investigation was suspended pending the criminal investigation of the officers by the Detective Bureau and court action or other resolution.
By letter dated February 5, 2008, Internal Affairs requested that the Office of Hudson County Prosecutor (Prosecutor) conduct a concurrent criminal review of any potential criminal conduct on the part of the arresting officers involved in the Brady/Pittman matter. On February 13, 2008, the Prosecutor issued a declination letter to Internal Affairs advising that no criminal charges would be sought in the matter against Giles.
In the interim, the Brady/Pittman dispute was removed from Hoboken Municipal Court to Secaucus Municipal Court, where Internal Affairs monitored the pre-trial and trial proceedings from January 29, 2008 through June 18, 2008. The Brady trial commenced on May 20, 2008, and continued until June 18, 2008, when the court dismissed the charge of simple assault, but found him guilty of disorderly conduct. The investigator certified that she personally attended the Brady court proceedings on January 29, February 11 and 13, March 25, May 20 and June 18, 2008.
After the conclusion of the Brady municipal court proceedings, the investigator and Internal Affairs continued their investigation. Giles was interviewed on July 8, 2008, and by July 17, 2008, interviews of all other officers, subjects and witnesses involved in the incident were completed. On August 6, 2008, Internal Affairs concluded its administrative investigation by exonerating two of the officers under review and forwarding on August 19, 2008, to Chief of Police Joseph Bober the investigative report which recommended that the case be reviewed for appropriate disciplinary action against Giles and Sergeant James Finnegan. On August 26, 2008, a formal disciplinary charge of Unsatisfactory Performance was filed against Giles, in violation of Patrol Guide Rules and Regulations, Section 7.12.
It is from this charge that Giles filed his complaint*fn2
in lieu of prerogative writs with temporary restraints in the
Law Division, Essex County. The complaint asserts (1) the
disciplinary action taken against him was in violation of the
forty-five day provision of N.J.S.A. 27:25-15.1c and N.J.S.A.
40A:14-181, the Attorney General's Internal Affairs Guidelines and
Procedures; and (2) the alleged delay in filing the disciplinary
action was in violation of the New Jersey State Constitution. On
February 27, 2009, Judge Michael R. Casale dismissed the complaint and
ruled that (1) judicial review "for contesting State administrative
agency action is the Appellate Division"; and (2) Giles must exhaust
his administrative remedies pursuant to Rule 2:2-3(a)(2), with final
action taken by an agency as to the disciplinary complaint before he
may appeal under Rule 2:2-3. Moreover, the trial court held that
"there is no jurisdiction here to handle this matter by way of a
verified complaint and an order to show cause," but if there was
jurisdiction, the judge would be inclined to dismiss even on a
substantive basis for Giles' failure to meet the standard under Crowe
v. De Gioia, 90 N.J. 126 (1982). We agree with the holdings of Judge
Rule 2:2-3(a) describes appeals allowed as of right to the Appellate Division. Such appeals may be taken:
(1) from final judgments of the Superior Court trial divisions, or the judges thereof sitting as statutory agents; the Tax Court; and in summary contempt proceedings ...