On appeal from the New Jersey Civil Service Commission, Docket No. CSC-2009-4106.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2011 -
Before Judges Carchman and Baxter.
Appellant Mark DiNatale, a detective in the Trenton Police Department (TPD), appeals from a final decision of the Civil Service Commission (CSC or Commission) concluding that appellant violated departmental rules when he failed to communicate with the TPD Central Command Unit after a motor vehicle stop. In addition, appellant disobeyed orders when he improperly used an individual, who had not been registered, as an informant. In sustaining the findings that appellant had violated TPD departmental rules and regulations 4.4 (Rule 4.4) (attention to duty) and 4.3 (Rule 4.3) (failure to obey orders), the CSC increased the disciplinary penalty imposed by the TPD*fn1 from a thirty-day suspension to a sixty-day suspension. We affirm.
The facts are not in significant dispute.
At approximately 11:00 p.m. on February 12, 2009, C.K. was parked on Bellevue Avenue in Trenton, when appellant approached the car and asked C.K. and her passenger M.W. why they were sitting in the parked car. After admitting they were waiting to buy heroin, appellant enlisted C.K. to make the drug purchase so that he could arrest the dealer. Appellant advised C.K. that she and M.W. would be arrested if she did not cooperate. Appellant's partner also searched M.W. and found needles in his possession.
C.K. followed appellant's instructions to call the dealer, who then refused to come outside because he had seen police officers. C.K. reacted by telephoning appellant to tell him to move his car, and then she again called the drug dealer, who sent out a third-party to make the drug deal. After making the purchase, C.K. drove off without calling appellant as she had been instructed. Appellant called C.K. immediately to ask why she drove off. Soon after, appellant and another patrol car stopped C.K.'s car, recovering the heroin and other drug paraphernalia. C.K. was arrested and taken into custody; she was later released, after being issued two summonses for drug possession. Eventually, the charges against her were dismissed, whereupon she then reported the incident to Internal Affairs.
Appellant did not testify before Internal Affairs. He had previously filed an administrative written report claiming that he had stopped C.K.'s car in connection with a citizen complaint of drug activity in the area. He asserted in the report that he had observed someone running from the car into adjacent row houses as the car quickly exited the area. He also reported that he found heroin and drug paraphernalia in the car.
According to Trenton Police Department Internal Affairs' Detective Jose Pantoja, appellant admitted that he gave C.K. his telephone number in case she agreed to become an informant.
Appellant, interviewed by Pantoja, conceded that appellant arrested C.K. later that night and found drugs in her car. Pantoja noted that police department policies barred the use of any confidential informant who was not registered, and that department protocol required a radio communication to report a motor vehicle stop, regardless of whether the car was already parked.
The Administrative Law Judge (ALJ) concluded that appellant should have radioed the command center when he discovered that C.K. was attempting to purchase drugs and drug paraphernalia was found on her passenger. In addition, the ALJ observed that phone calls from appellant to C.K. during the same time period C.K. was calling the drug dealer corroborated C.K.'s testimony that appellant encouraged and authorized C.K. to consummate the drug deal. The ALJ explained that although she was unable to rely on Pantoja's testimony about his interview with appellant because appellant could not be cross-examined, she did not believe appellant's version of events in his report. She concluded that the report did not account for the calls to C.K. during the short period she was calling the drug dealer. The ALJ added that an adverse inference could be drawn from appellant's decision not to testify. The inference was that appellant could not truthfully refute the testimony of the TPD's witnesses.
The ALJ concluded that the TPD had established that appellant had violated departmental rules and protocol when he failed to carry out his duties by not communicating with central command about his encounter with C.K. and disobeyed orders when he used C.K. to consummate a drug deal even though she was not registered as a confidential informant. The ALJ determined that appellant's suspension should be modified from thirty to sixty days.*fn2 On review, the Commission adopted the ALJ's findings of fact and conclusion, and determined ...