TONY MITCHNER VS. TROOPER MARK MARCHATERRE (L-8715-17, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 4, 2021
• Docket: A-4131-19
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4131-19

TONY MITCHNER,

Plaintiff-Appellant,

v.

TROOPER MARK MARCHATERRE, in his individual capacity, and DSG TIMOTHY MEYERS, in his individual capacity,

Defendants-Respondents. ___________________________

Submitted May 17, 2021 – Decided June 4, 2021

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8715-17.

Franzblau Dratch, PC, attorneys for appellant (Brian M. Dratch, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Francis A. Raso, Deputy Attorney General, on the brief). PER CURIAM

Plaintiff Tony Mitchner appeals from a June 5, 2020 order granting

summary judgment in favor of defendant Trooper Mark Marchaterre 1 and

dismissing his claims in their entirety. We affirm.

In June 2014, New Jersey State Police officers Marchaterre and Meyers

met with a confidential informant (CI). The CI previously provided reliable

information to the police, resulting in successful narcotics investigations and

multiple drug arrests. According to the CI, an individual named "Slim" was

selling controlled dangerous substances (CDS) out of a three-family home in

Newark. The CI described Slim "as a medium height black male approximately

. . . 150-160 pounds, with dark color skin and with short hair" who lived in an

apartment on the first floor of the home.

Based on this information, Marchaterre and Meyers arranged for the CI to

purchase CDS from Slim as part of a controlled purchase. The officers

witnessed the CI meet with a black male, matching Slim's description, to

1 Plaintiff stipulated to dismissal of all claims against defendant DSG Timothy Meyers, and he is not a party on appeal.

A-4131-19 2 purchase crack cocaine. According to the CI, Slim kept drugs in the living room

of the first-floor apartment.

Marchaterre and Meyers conducted three more controlled purchases

through the CI. During the second controlled purchase, the CI advised the

officers that Slim "ran up the stairs to the second floor" and returned with crack

cocaine. The officers conducted a third controlled purchase to confirm whether

the drugs were kept on the first or second floor of the home. Marchaterre and

Meyers saw Slim call to the CI from a second-floor window before going

downstairs to let the CI inside. Slim returned to the second floor to retrieve

drugs for the CI. During the fourth controlled purchase, Slim stuck his head out

a first-floor window and asked how much the CI needed to buy. After the CI

replied, Slim appeared on the front porch with the drugs.

Based on the information from the controlled purchases, the officers

determined the CI was credible. Marchaterre found probable cause to believe

Slim conducted an illegal drug operation from the first and second floors of the

home.

Marchaterre's findings were memorialized in two affidavits. The

affidavits requested two warrants to search the first and second floors of the

Newark home "[i]ncluding all occupants therein, who [we]re deemed to be in

A-4131-19 3 control of the premises and/or reasonably believed to be involved in criminal

activity," and seize all CDS and related evidence. On June 26, 2014, a judge

issued the requested search warrants.

On June 30, 2014, the officers executed the search warrants. While

securing the home, the officers encountered plaintiff and a female friend on the

second floor of the home. The officers found plaintiff walking from the kitchen

to his second-floor bedroom, carrying eggs and toast, and the female friend

inside one of the bedrooms. Plaintiff immediately told officers, "She had

nothing to do with it." In an unsolicited statement to the police, plaintiff said

the female friend was his "company" and "spent the night" but did not live in

the house.2

After securing the premises, the officers performed "a methodical search

of both the first and second floor residences" and uncovered multiple weapons,

ammunition, drug paraphernalia, and drugs. Plaintiff was arrested for

possessing the items found in and around his second-floor apartment. Slim was

not in the home during the officers' search.

2 Plaintiff paid $400 per month to the landlord of the three-family house for the right to occupy a middle bedroom on the second floor of the home. Plaintiff had access to the second floor living room and kitchen and the common areas within the building. A-4131-19 4 The matter was presented to a grand jury on September 8, 2014. Before

the grand jury, Marchaterre described the events leading to plaintiff's arrest. He

also told the grand jury about plaintiff's spontaneous statement that the female

friend "had nothing to do with anything . . . . She was just sleeping over." Based

on plaintiff's statement, Marchaterre explained "[plaintiff] took possession of all

the items in the house," and the officers decided not to charge the female friend.

On September 15, 2014, the grand jury returned an indictment charging

plaintiff with three counts of second-degree possession of a firearm, N.J.S.A.

2C:39-7(b).

In July 2015, the prosecutor determined plaintiff's criminal case would

have to be re-presented to the grand jury because plaintiff was never charged

with possessing an assault weapon, a high-capacity magazine, or CDS. On

September 19, 2015, the grand jury returned a superseding indictment charging

plaintiff with second-degree possession of a handgun without a permit, N.J.S.A.

2C:39-5(b) (count one); second-degree possession of an assault firearm without

a license, N.J.S.A. 2C:39-5(f) (count two); third-degree possession of a rifle or

shotgun without a firearms purchaser identification card, N.J.S.A. 2C:39-5(c)(1)

(count three); third-degree possession of CDS, N.J.S.A. 2C:35-10(a) (count

four); third-degree possession of CDS with the intent to distribute, N.J.S.A.

A-4131-19 5 2C:35-5(a)(1); (b)(3) (count five); fourth-degree possession of drug

paraphernalia with the intent to distribute, N.J.S.A. 2C:36-3 (count six); fourth-

degree possession of hollow nose or dum-dum bullets, N.J.S.A 2C:39-3(f)

(count seven); and fourth-degree possession of a large capacity ammunition

magazine, N.J.S.A. 2C:39-3(j) (count eight).

On August 10, 2016, the prosecutor recommended dismissal of all charges

against plaintiff. The prosecutor concluded two counts "must be dismissed due

to the exemption from the statute which allows for any person to keep a[nd]

carry a handgun/rifle about his residence" and "the remaining counts of the

[i]ndictment must be dismissed because the items recovered were found in

locations accessible to multiple occupants within the residence." The prosecutor

determined "the State could not sustain its burden beyond a reasonable doubt

and a dismissal of the [i]ndictment in its entirety [wa]s appropriate." On August

22, 2016, the charges against plaintiff were dismissed and he was released after

spending twenty-six months in jail.

On December 11, 2017, plaintiff filed a civil complaint against

Marchaterre and Meyers, alleging wrongful arrest, false imprisonment, and

malicious prosecution pursuant to the New Jersey Civil Rights Act (NJCRA),

N.J.S.A. 10:6-1 to -2, based on his wrongful incarceration.

A-4131-19 6 On December 29, 2019, Marchaterre and Meyers moved for summary

judgment, arguing plaintiff's claims were procedurally and substantively

deficient. Plaintiff admitted his false arrest claim was filed beyond the two-year

statute of limitations under N.J.S.A. 2A:14-2. After dismissing his claims

against Meyers, plaintiff proceeded on his false imprisonment and malicious

prosecution claims against Marchaterre.

After hearing counsels' arguments, the motion judge issued a June 5, 2020

order and written decision granting summary judgment to Marchaterre. The

judge determined Marchaterre had probable cause to believe plaintiff committed

the offenses. Therefore, plaintiff was unable to prevail as a matter of law on his

false arrest and malicious prosecution claims. The judge also found plaintiff's

false imprisonment claim was untimely.

On appeal, plaintiff claims the judge erred in dismissing his claim for false

imprisonment as time barred because the two-year statute of limitations

commenced upon the date of his release from prison rather than the date of his

indictment. Additionally, plaintiff contends the judge erred in granting

summary judgment on his malicious prosecution claim because there were

genuine issues of material fact. We disagree.

A-4131-19 7 We review a grant of summary judgment using the same standard that

governs the motion judge's decision. RSI Bank v. Providence Mut. Fire Ins.

Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).

Summary judgment will be granted when "the competent evidential materials

submitted by the parties," viewed in the light most favorable to the non -moving

party, show that there are no "genuine issues of material fact" and that "the

moving party is entitled to summary judgment as a matter of law." Grande v.

Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat, 217 N.J. at 38);

accord R. 4:46-2(c)). "An issue of material fact is 'genuine only if, considering

the burden of persuasion at trial, the evidence submitted by the parties on the

motion, together with all legitimate inferences therefrom favoring the non -

moving party, would require submission of the issue to the trier of fact.'"

Grande, 230 N.J. at 24 (quoting Bhagat, 217 N.J. at 38). We owe no special

deference to the motion judge's legal analysis. RSI Bank, 234 N.J. at 472 (citing

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199

(2016)).

We first address plaintiff's claim the judge erred in dismissing his

malicious prosecution claim because there were material factual disputes

precluding the entry of summary judgment. Plaintiff claims he provided

A-4131-19 8 sufficient evidence Marchaterre acted with malice and lacked probable cause to

arrest him. Plaintiff also claims Marchaterre misrepresented plaintiff's pre-

arrest statements regarding his female friend when the officer testified during

the grand jury proceeding.

Malicious prosecution arises when a person "recklessly institutes criminal

proceedings without any reasonable basis." Lind v. Schmid, 67 N.J. 255, 262

(1975). To establish a claim for malicious prosecution, a party must establish:

"(1) a criminal action was instituted by [the] defendant against [the] plaintiff;

(2) the action was motivated by malice; (3) there was an absence of probable

cause to prosecute; and (4) the action was terminated favorably to the plaintiff."

LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) (citing Lind v. Schmid, 67 N.J.

255, 262 (1975)). "The essence of the cause of action is lack of probable cause,

and the burden of proof rests on the plaintiff. The plaintiff must establish a

negative, namely, that probable cause did not exist." Lind, 67 N.J. at 262-63.

Significantly, "probable cause is an absolute defense to . . . false arrest, false

imprisonment, and malicious prosecution claims." Wildoner v. Borough of

Ramsey, 162 N.J. 375, 389 (2000).

Here, there was sufficient probable cause to arrest and prosecute plaintiff

for the crimes. There were several controlled purchases of suspected CDS in

A-4131-19 9 the building where plaintiff resided. The CI described the controlled purchases,

indicating the individual selling the drugs ascended to the second floor of the

three-family home and then returned to the first floor with the drugs.

In conducting a search pursuant to lawfully issued warrants, the officers

found plaintiff returning to his bedroom after preparing food in a shared kitchen

on the second floor of the house. Plaintiff told the officers he lived on the second

floor of the home and had access to common areas throughout the house. The

officers discovered drugs, drug paraphernalia, and ammunition in the common

areas. Plaintiff did not dispute these facts.

Because plaintiff lived on the second floor of the home and accessed

common areas within the house, it was reasonable for Marchaterre to assume

plaintiff had knowledge of, and control over, the weapons and drugs found on

the second floor and in the common areas and, thus, possessed the illegal items.

See State v. Spivey, 179 N.J. 229, 236-37 (2004) (citing State v. Schmidt, 110

N.J. 258, 270 (1988)) ("A person constructively possesses an object when,

although he lacks 'physical or manual control,' the circumstances permit a

reasonable inference that he has knowledge of its presence, and intends and has

the capacity to exercise physical control or dominion over it during a s pan of

time."). Based on these uncontroverted facts, Marchaterre "reasonably believed

A-4131-19 10 that [p]laintiff had knowledge of the illicit contents of the apartment's common

areas, had access to such contents, and exercised dominion and control over such

areas" sufficient to establish probable cause "for the institution of proceedings

against [p]laintiff."

We reject plaintiff's argument probable cause was limited to arrest of Slim

and no other occupants of the house. The affidavits submitted in support of the

search warrants established probable cause to believe there were drugs being

distributed from the home without specific reference to Slim. The search

warrants expressly authorized the officers to seize "[a]ny and all controlled

dangerous substances, as well as any other items which would indicate

additional suspects" and allowed the officers to enter the home to recover

unlawful items. Based on the language in the search warrants, there would have

been probable cause to arrest anyone in the three-family home provided there

was evidence linking the individual to the recovered items.

Here, plaintiff was in the home during the officers' search and admitted

he had access to areas in the home where drugs and weapons were found.

Therefore, the officers had probable cause connecting plaintiff to the seized

items.

A-4131-19 11 We also reject plaintiff's contention Marchaterre's grand jury testimony

and deposition testimony were contradictory and, therefore, Marchaterre

materially misled the grand jury. Having reviewed Marchaterre's grand jury and

deposition testimony, we disagree the statements were contradictory. Even if

the statements were contradictory, Marchaterre's statements articulated probable

cause to support plaintiff's arrest based on the discovery of drugs and weapons

in the home and plaintiff's admitted access to areas where the contraband was

found.

Nor did plaintiff present any evidence prosecuting him for the drugs and

weapons charges was actuated by malice. Plaintiff never spoke to Marchaterre

or Meyers prior to his arrest on June 30, 2014. Nor had plaintiff spoken to either

officer after his arrest. In fact, plaintiff could not recall if Marchaterre and

Meyers were the arresting officers. Because there was probable cause to arrest

plaintiff, and plaintiff failed to demonstrate his arrest was motivated by malice,

plaintiff could not sustain a cause of action for malicious prosecution, and the

motion judge properly granted Marchaterre's motion for summary judgment.

We next consider dismissal of plaintiff's false imprisonment claim based

on the expiration of the two-year statute of limitations. Plaintiff claims the

A-4131-19 12 statute of limitations for his false imprisonment claim commenced upon his

release from jail and therefore his complaint was timely. We disagree.

"False arrest, or false imprisonment, is the constraint of the person without

legal justification." Mesgleski v. Oraboni, 330 N.J. Super. 10, 24 (App. Div.

2000) (citing Pine v. Okzewski, 112 N.J.L. 429, 431 (E.&A. 1934)). To

establish a claim for false imprisonment, a party must demonstrate: "(1) 'an

arrest or detention of the person against his or her will' and (2) 'lack of proper

legal authority or legal justification.'" Leang v. Jersey City Bd. of Educ., 198

N.J. 557, 591 (2009). "[A]n action for false imprisonment must be brought

within two years . . . ." Earl v. Winne, 14 N.J. 119, 132 (1953); see also N.J.S.A.

2A:14-2 ("Except as otherwise provided by law, every action at law for an injury

to the person caused by the wrongful act, neglect or default of any person within

this State shall be commenced within two years next after the cause of any such

action shall have accrued . . . .").

Plaintiff relies on several out-of-state cases in asserting a claim for false

imprisonment commences when the unlawful detention ceases. See, e.g.,

O'Fallon v. Pollard, 427 N.W.2d 809, 811 (N.D. 1988) (citing Adler v. Beverly

Hills Hosp., 594 S.W.2d 153, 155 (Tex. Civ. App. 1980)) ("False imprisonment

is considered a continuing tort which commences at the time of the false arrest

A-4131-19 13 and continues until the unlawful detention ceases."); Belflower v. Blackshere,

281 P.2d 423, 424 (Okla. 1955) ("As a general rule an action for false

imprisonment accrues at, and limitations run from, termination of the

imprisonment . . . ."); Collier v. Evans, 406 S.E.2d 90, 92 (Ga. Ct. App. 1991)

(quoting Reese v. Clayton Cnty., 363 S.E.2d 618, 620 (Ga. Ct. App. 1987))

("The action must be brought within two years of its accrual, . . . which is from

the release from imprisonment.").

Other states opt for an earlier accrual date. See, e.g., Freeman v.

Holyfield, 179 So.3d 101, 105 (Ala. 2015) (quoting Wheeler v. George, 39 So.3d

1061, 1084 (Ala. 2009)) (citing Jennings v. City of Huntsville, 677 So.3d 228,

230 (Ala. 1996) ("A claim of false imprisonment accrues on the date of arrest.");

Stone v. Wright, 133 N.E.3d 210, 216 (Ind. Ct. App. 2019) (rejecting the

"continuing wrong" theory and holding the statute of limitations runs from when

plaintiff knew or could have discovered the injury).

The United States Supreme Court determined the date of accrual for a

false imprisonment claim under federal law, 42 U.S.C. § 1983, "commences to

run, when the wrongful act or omission results in damages . . . even though the

full extent of the injury is not then known or predictable." Wallace v. Kato, 549

U.S. 384, 391 (2007). Thus, the United States Supreme Court determined the

A-4131-19 14 statute of limitations on a false imprisonment claim does not begin upon release

from custody but rather when legal process is initiated based on the definition

of false imprisonment as detention without legal process. Id. at 389-90. Once

legal process has begun, "any damages recoverable must be based on a malicious

prosecution claim and on the wrongful use of judicial process rather than

detention itself." Id. at 390.

The motion judge properly determined plaintiff's false imprisonment

claim was untimely, finding "a cause of action generally accrues 'when facts

exist which authorize one party to maintain an action against another'" and false

imprisonment does not require a showing "that an underlying criminal action

has terminated in his [or her] favor." We are unpersuaded by plaintiff's reliance

on case law from other states because the statutes governing claims for false

imprisonment in those states have no bearing on the applicable New Jersey

statute.

Here, plaintiff's false imprisonment claim accrued, at the latest, upon the

issuance of the superseding indictment. Since plaintiff's complaint was filed

more than two years after plaintiff's superseding indictment, his false

imprisonment claim was untimely.

A-4131-19 15 Even if the two-year statute of limitations commenced upon plaintiff's

release from jail, which we reject, there was overwhelming evidence of probable

cause, entitling Matchaterre to summary judgment as a matter of law.

Affirmed.

A-4131-19 16