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Lavezzi v. State

Superior Court of New Jersey, Appellate Division

June 7, 2013

ROBERT LAVEZZI and KAREN LAVEZZI, Plaintiffs-Respondents,
v.
STATE OF NEW JERSEY, Defendant-Respondent, and CAROLYN A. MURRAY, ACTING PROSECUTOR OF ESSEX COUNTY; ESSEX COUNTY PROSECUTOR'S OFFICE; PATRICK TODD, INVESTIGATOR FOR THE ESSEX COUNTY PROSECUTOR'S OFFICE AND INDIVIDUALLY; JAMES CONTRERAS, INVESTIGATOR FOR THE ESSEX COUNTY PROSECUTOR'S OFFICE AND INDIVIDUALLY, Defendants, and ESSEX COUNTY, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

PER CURIAM

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.

I.

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 ...


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