NOT FOR PUBLICATION WITHOUT THE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
JAY MASSMINO VS. STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL (DEPARTMENT OF LAW AND PUBLIC SAFETY)
Combined Opinion