JOHN DITARANTO VS. PASSAIC COUNTY PROSECUTOR'S OFFICE (L-0919-18, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5478-17T2

JOHN DITARANTO,

Plaintiff-Appellant,

v.

PASSAIC COUNTY
PROSECUTOR'S OFFICE,

Defendant-Respondent.
__________________________

Argued May 1, 2019 – Decided May 22, 2019

Before Judges Koblitz, Currier and Mayer.

On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-0919-18.

Frank C. Cioffi argued the cause for appellant (Sciarra
& Catrambone, LLC, attorneys; Frank C. Cioffi, of
counsel and on the briefs).

J. Kevin McDuffie, Assistant County Counsel, argued
the cause for respondent (Michael Glovin, Passaic
County Counsel, attorney; J. Kevin McDuffie, on the
brief).
PER CURIAM

Plaintiff John DiTaranto appeals from a July 12, 2018 order denying his

motion for reconsideration. Although he does not appeal from the May 29, 2018

order upon which his motion for reconsideration was based, we address that

order as well. The May 29, 2018 order denied plaintiff's application for the

following relief: reinstatement as a police officer, permission to carry a weapon,

dismissal of the Department's disciplinary charges, and attorney's fees. We

affirm both orders.

Plaintiff was a police officer with the City of Paterson Police Department

(Department). On August 16, 2015, he was involved in a domestic violence

incident with his ex-wife and her boyfriend. On that date, plaintiff confronted

his ex-wife and her boyfriend, pointing his service weapon at the boyfriend. As

a result of this incident, plaintiff was arrested and charged with simple assault,

N.J.S.A. 2C:12-1(a), harassment, N.J.S.A. 2C:33-4(a), and criminal mischief,

N.J.S.A. 2C:17-3(b)(2). Based on plaintiff's conduct, his ex-wife obtained a

temporary restraining order (TRO).

Due to plaintiff's involvement in a domestic violence incident, defendant

Passaic County Prosecutor's Office (PCPO) and the Department were required

to seize plaintiff's service weapon and conduct an investigation. The

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Department's Internal Affairs (IA) Division launched an investigation into the

domestic violence incident. In August 2016, after a year-long investigation, the

IA Division recommended the allegations against plaintiff be sustained and

submitted a written report to the deputy police chief of the City of Paterson

(City).1

On September 12, 2016, plaintiff received a preliminary notice of

disciplinary action (PNDA) issued by the City related to his continued

employment with the Department based on the domestic violence incident.

Responding to the PNDA, plaintiff submitted reports from three psychologists.2

All three psychologists recommended plaintiff be rearmed and returned to

regular duty without restriction.

On December 6, 2016, a disciplinary hearing was held on the PNDA.

After considering the evidence, the hearing officer concluded the City had

proven by a preponderance of the evidence that plaintiff was insubordinate,

demonstrated conduct unbecoming a public employee, "caused a dangerous

1
A recommendation of "sustained" means there is sufficient evidence to charge
an officer with misconduct.
2
Two of the psychologists treated plaintiff. The third psychologist was
employed by the City.
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confrontation while he was in an agitated state," and failed to display

"behavioral control and respect for commands of fellow police officers."

The PCPO also investigated plaintiff's conduct. As part of its

investigation, the PCPO asked plaintiff's treating psychologist, Dr. Shah, to

review several fitness for duty evaluations of plaintiff and the videotape of the

August 2015 domestic violence incident. After reviewing the material, Dr. Shah

maintained that plaintiff should be rearmed and returned to work without

restriction.

The PCPO asked the City's deputy police chief to submit a written

recommendation regarding plaintiff's ability to return to work as a police

officer.3 The deputy police chief wrote, "under no circumstance should

[plaintiff] be trusted with the great responsibility of carrying a gun." This

recommendation was based on the deputy police chief's experience as a police

officer and supervisor and plaintiff's extensive IA record. According to the IA

record, twenty-eight complaints had been made against plaintiff since 2007, with

more than one-half of the complaints involving allegations of excessive force.

3
Police chiefs are required to recommend whether a law enforcement officer
should be reinstated after a domestic violence incident. Attorney General , Law
Enforcement Directive No. 2000-3 at 3 (Sept. 19, 2000).

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 In addition, the deputy police chief emphasized that the videotape of the

domestic violence incident influenced his determination not to rearm plaintiff

because plaintiff was violent and abusive. The deputy police chief concluded

rearming plaintiff would be "extremely negligent."

In September 2017, after a two-year inquiry, the PCPO issued a decision

against rearming plaintiff based on its investigation, plaintiff's IA history, and

the recommendation of the City's deputy police chief. Because all Department

officers are required to be armed to perform their duties, the PCPO's decision

rendered plaintiff unable to perform his duties.

In March 2018, another hearing was held to determine if plaintiff should

be terminated from the Department. During that hearing, the deputy police chief

explained his reasons for recommending against rearming plaintiff. He

emphasized that plaintiff was treating with his personal psychologist when the

excessive force complaints were filed and the domestic violence incident

occurred. Based on the PCPO's decision not to rearm plaintiff, the hearing

officer recommended the Department terminate plaintiff's employment.

Plaintiff filed a complaint in lieu of prerogative writs, alleging the PCPO's

decision against rearming him was arbitrary and capricious and violated the

procedural requirements of N.J.S.A. 2C:25-21(d), governing the return of a

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seized weapon. In addition, plaintiff filed an order to show cause (OTSC),

seeking various relief, including reinstatement to the Department without

restriction.

On the return date of the OTSC, plaintiff argued the PCPO's decision

against rearming him was arbitrary and capricious because the PCPO did not

address or acknowledge the psychological reports. The PCPO responded the

decision not to rearm plaintiff was based on its thorough two-year investigation

and was supported by sufficient credible evidence.

Plaintiff also argued the PCPO failed to file a petition regarding seizure

of the weapon, pursuant to N.J.S.A. 2C:25-21(d)(3), within forty-five days of its

decision not to rearm plaintiff. The PCPO acknowledged no petition was filed

because plaintiff's service weapon had been returned to the Department. The

PCPO asserted the statute applied only to the seizure of personal weapons.

On May 29, 2018, the judge denied plaintiff's OTSC, concluding the

PCPO's determination against rearming plaintiff was not arbitrary or capricious.

In addition, the judge concluded the PCPO was not required to file a petition

pursuant to N.J.S.A. 2C:25-21(d)(3) since the confiscated gun was not plaintiff's

personal weapon. The judge acknowledged the PCPO was required to, and did,

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consider all recommendations and information regarding the rearming of

plaintiff and his returning to work.

Plaintiff filed a motion for reconsideration, arguing the court erred in not

enforcing the forty-five-day filing requirement for the forfeiture of a weapon.

The judge denied the motion for reconsideration, finding plaintiff failed to

provide any additional information or controlling law that would alter the OTSC

decision.

On appeal, plaintiff argues the judge erred in finding the PCPO's decision

was not arbitrary or capricious. Plaintiff also contends the PCPO's decision was

not supported by substantial credible evidence. He further asserts the PCPO's

failure to file a petition pursuant to N.J.S.A. 2C:25-21(d)(3) mandates the return

of his service weapon and reinstatement to the Department.

Prosecutorial decisions regarding forfeiture of public employment are

reviewed under an abuse of discretion standard. See Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 570–71 (2002). An abuse of discretion "arises when

a decision is 'made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'" Id. at 571 (quoting

Achacoso–Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir. 1985)). The Court

stated an abuse of discretion exists "if [a party] can show that a prosecutorial

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[decision] (a) was not premised upon a consideration of all relevant factors, (b)

was based upon a consideration of irrelevant or inappropriate factors, or (c)

amounted to a clear error in judgment." Ibid. (quoting State v. Baynes, 148 N.J.

434, 444 (1979)).

As the State's chief law enforcement officer, the Attorney General "has

the authority to adopt guidelines, directives, and policies that bind police

departments throughout the State." N. Jersey Media Group, Inc. v. Twp. of

Lyndhurst, 229 N.J. 541, 565 (2017); N.J.S.A. 52:17B-97 to -117. In 2000, the

Attorney General issued a directive setting forth procedures for the seizure of

weapons from police officers involved in domestic violence incidents . See

Attorney General, Law Enforcement Directive No. 2000-3 (Sept. 19, 2000)

(Directive).

According to the Directive, when an officer is involved in a domestic

violence incident, the county prosecutor shall "conduct an immediate

investigation of the incident and determine whether the officer should be

permitted to carry a weapon . . . ." Directive at 3. The "chief of the law

enforcement agency where the officer is employed" must conduct an

investigation into the officer's background and recommend whether the officer

should be rearmed. Ibid. The decision to rearm an officer "rests with the

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[c]ounty [p]rosecutor . . . ." Directive at 4. The interests of the public health,

safety, and welfare are important in a prosecutor's decision concerning the

rearming of a police officer involved in a domestic violence incident. In re

Forfeiture of Pers. Weapons & Firearms Identification Card Belonging to F.M.,

225 N.J. 487, 507-08 (2016).

Here, plaintiff was arrested following a domestic violence incident in

August 2015. Plaintiff's service weapon was seized by the police, and the PCPO

and the Department investigated the incident and plaintiff's background.

Sufficient credible evidence in the record supported the PCPO's decision

against rearming plaintiff. The decision was premised upon a review of

plaintiff's history of violence, use of excessive force while on duty, twenty-eight

IA complaints, the domestic violence incident, and the deputy police chief's

recommendation that plaintiff not be rearmed. The PCPO also had access to

plaintiff's supporting psychological reports. The deputy police chief

acknowledged the psychologists' recommendations and explained he disagreed

with the recommendations because none of the psychologists observed

plaintiff's behaviors under the stressful and rigorous conditions of active duty.

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 Having reviewed the record, the PCPO's decision was not based on

impermissible or irrelevant factors and considered all of the information gleaned

from its investigation. Therefore, the PCPO did not abuse its discretion.

We next consider plaintiff's argument that N.J.S.A. 2C:25-21 governs the

return of his service weapon. The statute provides for the return of personally

owned weapons seized by the police as a result of a domestic violence incident

involving the gun owner. See N.J.S.A. 2C:25-21(d)(1)(b). In accordance with

this statute, a prosecutor, within forty-five days of the weapon seizure, may

petition the court to obtain title to the weapon on the grounds that the owner is

unfit or poses a threat to the public in general or to a particular person or persons.

N.J.S.A. 2C:25-21(d)(3).

Plaintiff's reliance on N.J.S.A. 2C:25-21(d)(3) is misplaced as the statute

applies only to personal weapons seized by law enforcement. Plaintiff did not

own his service weapon because the gun was issued to him by the Department

in connection with his employment as a police officer. When a duty weapon is

surrendered or seized, it must be "returned to the custody and control of the

department which issued that weapon." Directive at 2. Therefore, N.J.S.A.

2C:25-21(d)(3) does not accord any basis for the return of plaintiff's service

weapon.

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 We turn to defendant's argument that the judge erred in denying his motion

for reconsideration. When reviewing a motion for reconsideration, courts

determine whether the trial court abused its discretion. Cummings v. Bahr, 295

N.J. Super. 374, 384 (App. Div. 1996). Reconsideration should be granted in

"cases which fall into that narrow corridor in which either (l) the [c]ourt has

expressed its decision based upon a palpably incorrect or irrational basis, or (2)

it is obvious that the [c]ourt either did not consider, or failed to appreciate the

significance of probative, competent evidence." Fusco v. Bd. of Educ. of

Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria v. D'Atria,

242 N.J. Super. 392, 401 (Ch. Div. 1990)).

Here, there was no new evidence presented. Plaintiff simply repeated the

arguments raised in support of his OTSC. In denying plaintiff's OTSC, the judge

explained why N.J.S.A. 2C:25-21(d)(3) was inapplicable. He also addressed the

psychological reports and the PCPO's conclusion not to rearm plaintiff based on

its own investigation and the deputy police chief's recommendation. Plaintiff

failed to provide any new information or controlling law which the court

overlooked in denying the OTSC.

Affirmed.

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