Suspension of Newark Police Officer Upheld

Posted on August 3, 2009 by Donald Barbati

 

On July 31, 2009, the Appellate Division decided In the Matter of Eddie Gonzalez, Docket No.: A-0644-07T2. In the case, Eddie Gonzalez, a Newark Police Officer, appealed from a final decision of the Merit System Board (“Board”) adopting the findings of fact and conclusions of an Administrative Law Judge (“ALJ”), concluding that Gonzalez engaged in conduct unbecoming a public employee and violating certain Newark Police Department (“Department”) rules and regulations. The Board adopted the ALJ’s recommendation and imposed a six-month suspension.

In June 2003, Richard Diaz lived in Newark, and Gonzalez was his next-door neighbor. Diaz and Gonzalez were involved in a dispute, which resulted in Diaz filing a harassment claim against Gonzalez alleging that Gonzalez kissed Diaz’s minor daughter. On June 9, 2003, Newark Police Officer Philip Turzani was assigned as a dispatcher for the Department. Near the end of his 6:00 a.m. to 2:00 p.m. shift, he received a call from Gonzalez asking Turzani if he would like Gonzalez to bring him coffee. 

Gonzalez then arrived at the Newark Police and Fire Public Safety Communications Center (“Center”) at approximately 1:30 p.m., in plainclothes, and requested that Turzani run a license plate number through the Department’s computer system. Turzani asked Gonzalez if his purposes for running the plate were “legal,” and Gonzalez responded that his neighbor was trying to obtain a job and wanted to check his driving history. Turzani admitted to running the license plate, but could not recall the name of the individual connected with the search. Turzani stated that Gonzalez viewed the screen with the results on it.

Upon returning home from vacation on June 19, 2003, Diaz received twelve motor vehicle summonses in the mail. The summonses were allegedly issued by Officer Edward Sculthorpe of the Department on June 9, 2003 at approximately 2:00 p.m. Diaz challenged the summonses, claiming that he had not been stopped by a Newark police officer on that date. At the court hearing regarding the summonses, Officer Sculthorpe denied writing them and they were dismissed.

The summonses prompted a further investigation as on June 25, 2003, Diaz filed an Internal Affairs complaint with the Department against Gonzalez. In response to the complaint, Captain Robert Sbaraglio of the Department spoke with Sculthorpe, who confirmed that he had not written the summonses. Following the dismissal of the summonses, Sbaraglio conducted a preliminary investigation and identified the summons book that had been issued to Sculthorpe as the source of the summonses. Sbaraglio then had both Gonzalez and Sculthorpe submit administrative reports regarding the summonses. Both denied issuing the summonses.

 

At this point, Captain Brian Gaven of Internal Affairs directed Sbaraglio to turn over the investigation to Internal Affairs. Captain Gaven reviewed the summonses and noticed that they contained Diaz’s full name, address, driver’s license and vehicle registration, which led him to believe that someone had obtained this information from the NCIC computer system in the Department. With the assistance of the F.B.I., Gaven found that on June 9, 2003, at 1:34 p.m., someone had accessed Diaz’s license plate number and driver information through the Department’s dispatch center, specifically on channel two. Gaven discovered that Turzani operated channel two during the time the check occurred.

In a subsequent interview with Gaven, Turzani confirmed his earlier statement of his interaction with Gonzalez. Following this interview, Gaven contacted William Davis, a document examiner with the Division of Criminal Justice of New Jersey, in an effort to analyze the handwriting on the summonses. 

Davis appeared before the ALJ as an expert in forensic document examination, specifically handwriting. He indicated that his examination of the summonses and the writing samples allowed him to eliminate Sculthorpe as the author of the summonses. Although Davis found similarities between the summonses and the examples of appellant’s handwriting, he could not state Gonzalez was the author. However, Davis concluded in his report that, “the suspect was probably the author…” On October 28, 2003, Gaven conducted a videotaped interview of Gonzalez. During that interview, Gonzalez denied having any knowledge of the summonses. He also provided a differing version of his interaction with Turzani. Based upon his investigation, Gaven filed charges against Gonzalez.

On appeal, Gonzalez asserted that the action of the Board was arbitrary, capricious, unreasonable, and contrary to law. The Appellate Division disagreed. According to the Court, the thrust of Gonzalez’s arguments on appeal focused on the ALJ’s findings as to credibility. In her decision, the ALJ rejected Gonzalez’s testimony as “self-serving.” She found Turzani and Sculthorpe to be credible and concluded that Gonzalez issued the twelve summonses to Diaz. The Court noted the totality of the evidence presented at the hearing supported her findings and, therefore, there was no basis for the Court’s intervention. As such, the action of the Board was affirmed.
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Court Suppresses Evidence Obtained in Vehicular Search

Posted on May 28, 2009 by Donald Barbati

 

On May 19, 2009, the Appellate Division decided State of New Jersey v. Yusef Gethers, Docket No.: A-5323-06T4. By way of background, on March 24, 2005, a Union County grand jury returned an indictment charging Defendant, Yusef Gethers, with second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). On the same date, a Union County grand jury returned an indictment charging Defendant with third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) (count one), and fourth-degree possession of a prohibited device, hollow point bullets, N.J.S.A. 2C:39-3(f). 

Following denial of his motion to suppress evidence, Defendant pled guilty to count one of the indictment, third-degree unlawful possession of a weapon. Pursuant to a plea bargain reached with the State, Defendant was sentence to five (5) years probation, conditioned upon 364 days of house arrest. The trial court dismissed the remaining charges under the indictments as well as an outstanding municipal court warrant. The trial court also imposed the appropriate fees and penalties. Thereafter, this appeal ensued when Defendant appealed the suppression ruling.

In this case, the Appellate Division determined the motion to suppress evidence obtained in a vehicular search, specifically, a gun found in a backpack not in plain view, was improperly denied by the trial judge. The Court found the State did not carry its burden of demonstrating a recognized exception to the warrant requirement where: (1) both occupants were outside the car and did not have access to the backpack; (2) there was no possibility they would leave the area; (3) the officers’ conduct did not indicate a belief the occupants were armed and dangerous; (4) there was no evidence of accomplices who might have come onto the scene or other persons who had access to the car destroying or disposing of the evidence or moving the car; (5) the car was parked in a residential driveway so there was no issue of traffic obstruction; (6) the ratio of officers to suspects was 4-to-2; and (7) the Defendant was in a wheelchair. Consequently, the Court reversed the trial judge’s ruling and remanded the case back to the trial court.

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