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In the Matter of Michael Ferrarella

October 4, 2012

IN THE MATTER OF MICHAEL FERRARELLA, AND DONALD HARVEY, BOROUGH OF OAKLAND.


On appeal from the New Jersey Civil Service Commission, Docket No. 2011-3464.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 19, 2012 -

Before Judges Graves, Espinosa, and Guadagno.

Michael Ferrarella appeals from a final decision of the Civil Service Commission (the Commission) that upheld his removal from his position as a police officer with the Borough of Oakland. For the reasons that follow, we affirm.

I.

On November 24, 2009, at 9:00 p.m., Michael Schwaner met his friend Stephen Laspina for dinner at the Elm Street Bar and Grill. They stayed for two-and-one-half hours and had two beers each. They left the restaurant between 11:30 p.m. and midnight in Schwaner's car and drove to Laspina's girlfriend's home on Walnut Street. Schwaner went in with Laspina and stayed for approximately thirty minutes.

As Schwaner was leaving, his vehicle hit a parked Chrysler on Walnut Street at about 12:40 a.m. The impact was so severe that the Chrysler was pushed approximately thirty feet and both Schwaner's car, a Trailblazer, and the Chrysler were eventually declared total wrecks. In the collision, Schwaner hit his head, upper lip and nose which began to bleed. Schwaner failed to stop after hitting the Chrysler. He continued on Walnut Street and turned onto Page Drive, where he ran over a street sign, then drove up and over a private lawn. The Trailblazer sustained extensive damage including a flat tire and, as Schwaner drove, he noisily dragged debris from his vehicle. From Page Drive, Schwaner turned onto Yawpo Avenue. When he could drive no longer on the flat tire, he turned into a familiar location, the Yawpo Fire Department, where he had served as a volunteer.

Earlier that evening, Michael Ferrarella, a police officer with the Borough of Oakland, began a twelve-hour shift. He was working with Sergeant Robert O'Keefe, and Officers O'Neill, Fiore, and Donald Harvey. Ferrarella was assigned as a "float officer," and not restricted to a particular sector of Oakland. When Officer Harvey made a traffic stop in the parking lot of a local Krauszer's, Ferrarella pulled in to back him up.

From the Krauszer's lot, Ferrarella spotted a noisy vehicle with a headlight out traveling on Yawpo Avenue, and told Harvey he was going to investigate. As Ferrarella approached the vehicle, it turned into the Yawpo firehouse parking lot. When Schwaner got out, Ferrarella recognized him as both had served as volunteer firemen in Oakland. Schwaner told Ferrarella that he had hit something while coming from Walnut Street. Ferrarella noticed Schwaner's injuries and offered to call an ambulance but Schwaner refused medical attention. Ferrarella let Schwaner into the firehouse so he could call someone to pick him up as his car was not drivable. Schwaner called Laspina.

Ferrarella then left the firehouse and drove back to Krauszer's to speak with Harvey. Ferrarella told Harvey that he needed his help and to follow him back to the firehouse. Harvey also knew Schwaner from the fire department and they worked together in a landscaping business. Ferrarella told Harvey that Schwaner hit something and was in the firehouse. As Ferrarella was telling Harvey about Schwaner, a call came in from the police dispatcher at 12:48 a.m.,*fn1 directing Harvey to Walnut Street where a resident reported a car crash. When Ferrarella heard the transmission, he told Harvey, "Shit, I hope that's not it," referring to the car Schwaner hit. Two minutes later, the dispatcher broadcast that the accident was a hit-and-run. Before Harvey left the firehouse, Ferrarella asked him to check along Yawpo Avenue to see if there was any indication that Schwaner hit anything.

When Harvey arrived at the scene, he transmitted over the radio, "We're gonna be looking for a car with quite a bit of damage. It moved this vehicle a good thirty feet." At 12:53 a.m. Harvey radioed that the hit-and-run vehicle went up Walnut Street and turned left on Page Drive. He said the car had a flat tire and was making "quite a bit of noise."

As Harvey waited for a tow truck for the Chrysler, he was joined by Officer Fiore and Sergeant O'Keefe who began to search for the hit-and-run vehicle. At 12:59 a.m., Fiore radioed, "Looks like they took out a sign up here on Page also when they made the left turn . . . I got scrape marks on the ground that I'm going to be following." O'Keefe then radioed that he would join Fiore.

As the officers followed a trail of tire and debris marks left by Schwaner's vehicle that would lead them to the Yawpo firehouse, Ferrarella called O'Keefe on the phone and told him he was at the firehouse with the person involved in the accident. O'Keefe, who was already on Yawpo Avenue, proceeded directly to the firehouse and ...


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