JAY MASSMINO VS. STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL (DEPARTMENT OF LAW AND PUBLIC SAFETY)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 24, 2018
• Docket: A-4010-16T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4010-16T4

JAY MASSMINO,

Appellant,

v.

STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL,

Respondent. ______________________________

Argued August 14, 2018 – Decided August 24, 2018

Before Judges Messano and Geiger.

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

Steven H. Merman, Assistant County Counsel, argued the cause for appellant (Robert E. Barry, Union County Counsel, attorney; Steven H. Merman, on the briefs).

Daniel M. Vannella, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Benjamin H. Zieman, Deputy Attorney General, on the brief).

PER CURIAM At all relevant times, Detective Jay Massmino was a Berkley

Heights Police Detective assigned to the Union County Prosecutor's

Office (UCPO) Guns, Gangs, Drugs and Violent Crimes Task Force.

Along with members of the UCPO, Massmino executed a search warrant

at an apartment in Plainfield. Occupants of the apartment

subsequently filed a lawsuit against Massmino and the other

officers alleging the use of excessive force, false arrest and

other causes of action. Union County (the County) requested that

the Office of the Attorney General (OAG) provide a defense and

indemnification to the officers. See N.J.S.A. 59:10A-1 ("[T]he

Attorney General shall, upon a request of an employee or former

employee of the State, provide for the defense of any action

brought against such State employee or former State employee on

account of an act or omission in the scope of his employment.");

Wright v. State, 169 N.J. 422, 456 (2001) (holding State may be

required to defend and indemnify county prosecutors and

subordinates for tortious conduct involving "investigation,

arrest, and prosecution"). Relying on Wright and Township of

Edison v. Hyland, 156 N.J. Super. 137 (App. Div. 1978), the OAG

2 A-4010-16T4 agreed to provide a defense to all but Massmino. The County now

appeals.1

Our standard of review from a final agency decision is

deferential, and we will not reverse the determination "unless it

is arbitrary, capricious or unreasonable or it is not supported

by substantial credible evidence in the record as a whole."

Lavezzi v. State, 219 N.J. 163, 171 (2014) (quoting Prado v. State,

186 N.J. 413, 427 (2006)). However, our review of an agency's

legal interpretations is de novo. Id. at 172.

Employees of the county prosecutor are in a hybrid employment

status and may be deemed state employees for defense and

indemnification purposes when performing certain functions,

including the "investigation, arrest and prosecution" of

individuals. Lavezzi, 219 N.J. at 174-76 (quoting Wright, 169

N.J. at 453). No decision has extended the State's obligation to

defend and indemnify prosecutorial employees to municipal "on

loan" officers.

Our decision in Hyland is dispositive of this appeal. There,

we considered whether the county or the municipality was

responsible for the defense and indemnification of municipal

1 At argument before us, the County acknowledged that pursuant to resolutions adopted years ago, it agreed to provide a defense and indemnification to municipal police officers assigned to various task forces operated and supervised by UCPO.

3 A-4010-16T4 officers assigned to the county prosecutor's task force. Hyland,

156 N.J. Super. at 139-40. We concluded "municipal employees

hired and paid by the municipalities and assigned to the prosecutor

for the performance of a special investigative function cannot be

considered state employees within the ambit of N.J.S.A. 59:10A-

1." Id. at 141. Therefore, the municipality, not the county, was

responsible for defending actions against municipal police

officers "arising out of or incidental to the performance of

[their] duties." Ibid. (quoting N.J.S.A. 40A:14-155).

Although decided prior to Wright, Hyland remains good law.

See Lavezzi, 219 N.J. at 175 (citing Hyland); Wright, 169 N.J. at

446 (citing Hyland). More importantly, as the Court made clear

in Wright, a case in which both employees of the county prosecutor

and municipal police officers were named as defendants, 169 N.J.

at 430-31, "the Legislature intended a sharp distinction between

State employees[,]" including "unique . . . county prosecutorial

employees," entitled to the State's mandatory obligation to defend

and indemnify pursuant to N.J.S.A. 59:10A-1, and "employees of

other public entities that may be indemnified by such entities"

in their discretion. Id. at 455-56.

We are aware that the Court has granted certification in

Kaminskas v. State, 231 N.J. 557 (2017), a case in which the OAG

denied a defense and indemnification to a county police officer

4 A-4010-16T4 performing a polygraph examination for the county prosecutor.

Kaminskas v. State, No. A-3528-14 (App. Div. Sept. 6, 2017) (slip

op. at 2-3). However, unless and until the Court provides further

guidance, we are bound by existing precedent and the persuasive

authority of our decision in Hyland.

Affirmed.

5 A-4010-16T4