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Sara Lesende and Victor Lesende v. Officer Arnold Borrero and City of Newark

June 3, 2011

SARA LESENDE AND VICTOR LESENDE PLAINTIFFS,
v.
OFFICER ARNOLD BORRERO AND CITY OF NEWARK, DEFENDANTS.



The opinion of the court was delivered by: Debevoise, Senior District Judge

NOT FOR PUBLICATION

OPINION

This case arises out of a traffic dispute and subsequent arrest. Plaintiff Sara Lesende claims that she was beaten by an off-duty Newark Police Officer, Defendant Arnold Borrero, after an argument concerning her driving. Mrs. Lesende was subsequently prosecuted on the basis of sworn statements made by Mr. Borrero, though all charges against her were ultimately dropped. Mr. Borrero was later convicted of assaulting Mrs. Lesende and fired from the Newark Police Department. Mrs. Lesende has brought a variety of civil rights claims against Mr. Borrero and the City of Newark, charging violations of New Jersey and Federal Civil Rights Law.

Presently before the Court is a request by the parties that it rule upon the validity of the arrest warrant issued to Mrs. Lesende in connection with the altercation that forms the basis of her claims. Mrs. Lesende contends that she was improperly detained pursuant to an arrest warrant rather released with a summons, in violation of New Jersey Court rules. Defendants claim that the arrest warrant was properly issued in connection with charges of second degree assault. While the records and documentary evidence of Mrs. Lesende's travels through the New Jersey criminal courts are disturbingly sparse*fn1 , it appears from the records before the Court that the warrant was improper.

For the reasons set forth below, Mrs. Lesende's request for a directed verdict as to liability on her N.J.S. 10:6-2(c) claim is GRANTED. Mrs. Lesende's request for a directed verdict on her § 1983 claim predicated on the improper issuance of an arrest warrant is DENIED.

I. Background

The facts of this case are long familiar to the parties and described in detail in this Court's previous opinions (Doc Nos. 65, 70). The facts relevant to the instant dispute are as follows. On December 18, 2004, Mrs. Lesende was driving her car near the intersection of Elm and Jefferson Streets in Newark, New Jersey. While circling the block looking for a parking space, she was stopped by a blue van driven by Mr. Borrero, then an officer with the Newark Police Department. Mr. Borrero got into an argument with Mrs. Lesende, claiming that she had been driving her car in an unsafe fashion. Mr. Borrero produced his badge and gun, and after a heated argument allegedly beat Mrs. Lesende with his fists, causing serious injury to her neck, face and ribs. Plaintiff also claims that Mr. Borrero turned his gun on Mrs. Lesende and a bystander who attempted to intervene, threatening to kill both. Additional officers arrived later on the scene, and Mrs. Lesende was taken to a police station.

On the basis of a warrant-complaint was prepared by Mr. Borrero, Mrs. Lesende was charged with assaulting a police officer and resisting arrest. While the details surrounding Mrs. Lesende's processing are elusive, records indicate that she was eventually released on $10,000 bail, set by Judge Marilyn Williams.

In addition to her civil rights claims surrounding the incident, Mrs. Lesende contends that the arrest warrant which issued against her was improper under New Jersey Court Rules. She argues that she should instead have been issued a summons instead. On the basis of these facts, the parties have requested that this Court rule in advance of trial on whether the warrant was properly issued and whether Mrs. Lesende is entitled to a directed verdict on both her New Jersey statutory claims and § 1983 claims.

II. New Jersey Rules Concerning Issuance of Arrest Warrant or Summons

Section 3:3-1 of the New Jersey Criminal Court Rules specifies when and under what circumstances an arrest warrant may be issued. There are several key features.

First, a warrant may be issued only by "a judge, clerk, deputy clerk, municipal court administrator or deputy municipal court administrator" and only upon review of "the complaint or an accompanying affidavit or deposition." Rule 3:3-1(a). Since the City of Newark has represented that there was no affidavit or deposition submitted in connection with Mrs. Lesende's arrest, we can conclude that only the information stated on the face of Mr. Borrero's complaint was properly considered by Judge Williams.

Second, a warrant may be issued only if one of six criteria is met. Either: (1) the defendant must be charged with one of several serious offenses, including second degree aggravated assault; (2) the defendant must have failed to appear on a summons; (3) there must be reason to believe that the defendant is dangerous to self, others, or property; (4) there must already be an outstanding warrant for the defendant; (5) the defendant's identity or address must not be known; or (6) there must be reason to believe that the defendant will not appear in response to a summons.

In this case, only one of the criteria has been argued. The City of Newark contends that Mrs. Lesende was charged with second degree aggravated assault.*fn2 As such, the propriety of the arrest warrant turns on whether Mrs. Lesende was, or could have been, charged with second degree aggravated assault on the basis of facts alleged in the complaint. See e.g., Sanducci v. City of Hoboken, 315 N.J. Super 475, ...


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