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Lavezzi v. State

Superior Court of New Jersey, Appellate Division

June 7, 2013

ROBERT LAVEZZI and KAREN LAVEZZI, Plaintiffs-Respondents,


Submitted April 30, 2013

On appeal from the Office of the Attorney General, Department of Law and Public Safety.

James R. Paganelli, Essex County Counsel, attorney for appellant Essex County (Alan Ruddy, Assistant County Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Lisa A. Puglisi, Assistant Attorney General, of counsel; Luanh L. D'Mello, Deputy Attorney General, on the brief).

Before Messano, Lihotz and Ostrer, Judges.


Essex County (the County) appeals from the final agency decision of the Attorney General, denying a defense and indemnification to Essex County Prosecutor's Office employees who allegedly lost, damaged, or destroyed personal property of plaintiffs Robert and Karen Lavezzi. The Attorney General concluded that Wright v. State, 169 N.J. 422 (2001), did not compel granting the employees' request. Having reviewed the record in light of the applicable law, we affirm.


We discern the following facts from the sparse record before us.

The Lavezzis filed their civil complaint in October 2011. They alleged Essex County Prosecutor's Office employees searched their home pursuant to a warrant on December 29, 2005, and seized numerous items of personal property. Although Mr. Lavezzi was the apparent target of the investigation, neither a criminal complaint was filed, nor indictment returned. The Lavezzis allege that in April 2009, the Essex County Prosecutor and her office "determined that they had closed the investigation" and the Lavezzis could retrieve their property. They allege that many items returned in late 2009 and early 2010 were damaged — some crushed, others water-damaged — and other items were simply not returned at all.

The Lavezzis named as defendants the County; its prosecutor's office; the prosecutor; prosecutor's office detectives Patrick Todd and James Contreras; and various fictitious defendants. The multi-count complaint alleged negligence, gross negligence and conversion in connection with the storage and care of their property, which resulted in damage or loss. The Lavezzis sought compensatory and punitive damages, attorney's fees and costs. They later amended the complaint to add the State of New Jersey as a defendant based on a theory of respondeat superior.

In November 2011, the County Counsel requested that the Attorney General represent the prosecutor's office and "all individual defendants/employees named" in the complaint. Contreras, Todd, and Acting Essex County Prosecutor Carolyn A. Murray separately sought a defense and indemnification.

In an August 3, 2012, letter decision, Assistant Attorney General Jerry Fischer denied the requests, generally concluding that the alleged mishandling of the Lavezzis' property was an administrative matter. It therefore fell outside the scope of the defendants' law enforcement functions over which the Attorney General exercised supervision. After summarizing the Lavezzis' allegations, Fischer wrote:

This office must deny representation of the above defendant[]s based upon the following reasons: 1) the Essex County Prosecutor's Office assumed administrative responsibility to safeguard the plaintiffs' property; and 2) the Essex County Prosecutor[']s Office's decision not to pursue a civil forfeiture action of plaintiffs' personal property and the Essex County Prosecutor[']s Office's action of returning only some of the property to the plaintiffs were administrative acts, not law enforcement functions of the Essex County Prosecutor's Office. The fact that the Essex County Prosecutor's Office assumed this custodial role in connection with a then-active criminal investigation is of no moment.

. . . .

The State's obligation to provide defense and indemnification to county prosecutor employees arises only when the alleged tortious conduct occurs in the scope of their employment either during the arrest, investigation or prosecution of a criminal matter. The State is not [] obligated to provide defense/indemnification to the Essex County Prosecutor's Office and its employees because they reached the decision not to initiate a civil forfeiture action and chose to return plaintiffs' property, some of which was in a damaged condition.

Fischer also explained that a prosecutor's option to file a civil forfeiture action does not fall within the "criminal business" of the prosecutor's office.

The County appeals and contends that the Lavezzis' claims concern prosecutorial functions that trigger the State's defense and indemnity obligation described in Wright, supra .


We review the Attorney General's decision for an abuse of discretion, and must determine whether it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980); see also Prado v. State, 186 N.J. 413, 427 (2006) (stating Attorney General's decision to deny a defense was "entitled to the usual deference accorded" an agency decision, and shall be disturbed only if arbitrary, capricious or unreasonable).

Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency administrator's decision followed relevant law; (2) whether substantial credible evidence in the record supported the decision; and (3) whether in applying the law to the facts, the administrative agency clearly erred. In re Stallworth, 208 N.J. 182, 194 (2011) (citation and quotation omitted). While we defer to an agency's expertise and knowledge of the field, Greenwood v. State Police Training Center, 127 N.J. 500, 513 (1992), we are not bound by an agency's "determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Appellant bears the burden of demonstrating the agency decision was arbitrary, unreasonable, or capricious. Barone v. Dep't of Human Servs., 210 N.J.Super. 276, 285 (App. Div. 1986), aff'd 107 N.J. 355 (1987).

In Wright, supra, Somerset County sought the Attorney General's defense and indemnification of its county prosecutor's office and its employees in connection with a complaint against them alleging false arrest, invasion of privacy, malicious prosecution, false imprisonment, assault and battery, and other causes of action. 169 N.J. at 430-31. The Attorney General declined the county's request. Id . at 432.

The Court held the State was obliged to defend and indemnify the county prosecutor's office and its subordinates pursuant to the Tort Claims Act, N.J.S.A. 59:10-1 to -10 (indemnification) and N.J.S.A. 59:10A-1 to -6 (defense). Id . At 453-57.[1] The Court also held "the State may be held vicariously liable for the tortious actions of [county prosecutors] and their subordinates performed during the investigation, arrest and prosecution" of a defendant. Id . at 453.

On the question of defense and indemnification, the Court deemed determinative "whether the function that the county prosecutors and their subordinates were performing during the alleged wrongdoing is a function that traditionally has been understood to be a State function and subject to State supervision in its execution." Id . at 454. Among the State functions subject to State supervision is "enforcement of the State's criminal laws." Id . at 455.

[W]hen county prosecutors and their subordinates are involved in the investigation and enforcement of the State's criminal laws, they perform a function that has traditionally been the responsibility of the State and for which the Attorney General is ultimately answerable. In our view, the State should be obligated to pay the county prosecutors and their subordinates' defense costs and to indemnify them if their alleged misconduct involved the State function of investigation and enforcement of the criminal laws.

[ Ibid .]

In other words, the defense and indemnification obligation applies to county prosecutorial employees when they are "sued on the basis of actions taken in the discharge of their law enforcement duties." Id . at 456.

The Court expressly rejected a definitional approach to the question, which would predicate the defense and indemnification obligation on whether a county prosecutorial employee were defined as a State employee. Id . at 454. The Court recognized that county prosecutorial employees have a "hybrid status." Ibid . They act as agents of the State when using "'tools lawfully available to them to combat crime, '" and they act as agents of the county when performing "'administrative tasks unrelated to their strictly prosecutorial functions, such as a decision whether to promote an investigator.'" Ibid . (quoting Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996).

Applying Wright, the County argues that its county prosecutorial employees seized and exercised custody of the Lavezzis' property in connection with law enforcement activities. The County argues their activities constituted "marshalling of evidence [that was] related to criminal prosecution prior to trial and is a traditional prosecutorial function[.]"[2] The Attorney General responds that the Lavezzis do not challenge the search of their home, but rather the storage of their property. The Attorney General argues the storage and safeguarding of evidence is an administrative function.

Based on the record before us, we affirm the Attorney General's decision. As we have noted, the County bears the burden to show the Attorney General abused his discretion. Thus, it was incumbent upon the County to demonstrate that the property was actually held in connection with law enforcement activities. That, the County has failed to do.

No charges against Mr. Lavezzi were brought and no civil forfeiture sought. There is no evidence in the record that the Lavezzis' property was held for three-and—a-half years after the search in connection with an active investigation or prosecution. The county prosecutorial employees and the County provided the Attorney General no information about the nature and scope of its investigation. The record does not include the affidavit filed in support of the search warrant. Consequently, the County has provided no basis to conclude that, for any significant portion of the time the property was in storage, it was being marshalled for any law enforcement purpose.

Even after the investigation was closed, the Lavezzis were allegedly deprived of their property for several more months. We discern no basis for concluding that the storage of the property during that period was connected to law enforcement activities.

In affirming the Attorney General's decision, we need not adopt the broad principle that the storage and safeguarding of evidence is invariably an administrative function. This is not a case where property was allegedly lost or damaged when it was removed from the home upon execution of a search, held awaiting trial, or transported to trial. Rather, this is a case where property seized pursuant to a search warrant was apparently held, and allegedly damaged or lost, by the county prosecutor's office or its agents long after any related law enforcement activity ceased. That is an administrative function that does not implicate the Attorney General's obligation to defend and indemnify.


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