NOT FOR PUBLICATION WITHOUT THE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-0829-18T2
IN THE MATTER OF
GAMALIEL CRUZ,
CITY OF VINELAND
POLICE DEPARTMENT.
______________________
Argued telephonically February 27, 2020 -
Decided April 9, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2016-1020.
Louis Michael Barbone argued the cause for appellant
Gamiliel Cruz (Jacobs & Barbone, PA, attorneys; Louis
Michael Barbone, of counsel; Timothy C. Alexander,
on the brief).
Michael E. Benson argued the cause for respondent
City of Vineland Police Department (Buonadonna &
Benson, PC, attorneys; Michael E. Benson, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for Civil
Service Commission (Pamela N. Ullman, Deputy
Attorney General, on the statement in lieu of brief).
PER CURIAM
Appellant Gamaliel Cruz appeals from the September 21, 2018 final
agency decision of the Civil Service Commission (Commission) upholding his
termination from the position of detective with the Vineland Police Department
(VPD). We affirm.
I.
The following facts are derived from the record. Howard1 is a confidential
informant who provided information to Cruz with respect to numerous drug-
related investigations for approximately six years. During that time, the two
"had almost daily phone contact[,]" as well as in-person meetings as needed.
Howard was formally registered with the VPD as an informant.
On August 3, 2010, Cruz and Howard exchanged ten calls, six from
Howard to Cruz and four from Cruz to Howard. The calls were of short duration.
Howard used a cellphone with a number unfamiliar to Cruz.
That evening, Howard learned gang members at his home were planning
to commit a home invasion robbery at a specified Vineland residence. He
observed the gang members to be armed and in possession of drugs.
Cruz and Howard exchanged a series of short calls between 8:57 p.m. and
10:30 p.m. During the exchange of calls, Howard informed Cruz of the
1
Howard is a pseudonym created below to protect the informant's identity.
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impending robbery. According to Cruz, although he suspected he was speaking
to Howard, he did not know for certain the caller's identity. Cruz claims it was
not until the following day during a follow-up telephone call that he realized
Howard had provided the information about the robbery.
Shortly after the calls, Cruz informed his supervising sergeant of the
information he received from Howard. The sergeant and another officer
submitted affidavits certifying Cruz identified Howard by name as the informant
and source of the information about the robbery. Based on the information
received from Howard, Cruz issued a "be-on-the-lookout" notice for the car
described by Howard as being driven by the gang members who intended to
commit the robbery. Shortly afterwards, officers stopped the car. They arrested
several suspects for drug offenses. The vehicle was towed to police
headquarters to be searched after obtaining a warrant.
Cruz consulted an assistant prosecutor for permission to make a telephone
application to a judge for a search warrant. He did not advise the assistant
prosecutor he knew the identity of the informant or request advice concerning
the nature of his prior contact with the informant. After making telephone
contact with a Superior Court Judge, Cruz was put under oath. During his
recitation of probable cause in support of the warrant, Cruz testified that he "got
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a phone call from an anonymous subject . . . ." The judge asked "[a]lright . . .
the subject you said was anonymous, you did not know this person?" Cruz
responded "[c]orrect. Correct."
Cruz thereafter executed a confirmatory affidavit for approval by the
search warrant judge and the assistant prosecutor. The affidavit referred to the
informant as "a subject who wished to remain anonymous." Cruz also executed
a search warrant approval form, with box No. 12 marked "NO" to the question
of whether the investigation involved a confidential informant. Finally, Cruz
prepared a police report stating that his source was a "subject who wished to
remain anonymous." After the time Cruz claims he realized Howard was the
source of the information, he did not correct the court record, amend his
affidavit, or prepare a supplemental police report.
A few months later, an assistant prosecutor preparing a preindictment
report realized Cruz may have provided false testimony when obtaining the
search warrant. Cruz admitted to the assistant prosecutor he knew Howard's
identity and withheld that information from the court to protect Howard. In
response to a memorandum from the assistant prosecutor, the county prosecutor
opened a criminal investigation of Cruz.
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At the conclusion of the investigation, the county prosecutor wrote to
chief of the VPD advising she was declining to prosecute Cruz for false
swearing. She noted there was "more than sufficient evidence to support
criminal charges[,]" but "obtaining a conviction at trial could have catastrophic
[e]ffect[s] on the safety of other persons." The county prosecutor further stated
"this Office shall be required from this date forward to disclose Detective Cruz's
integrity issues to the defense in all future criminal prosecutions. So please
consider this when taking administrative action."
VPD thereafter conducted an internal investigation. During an interview,
Cruz acknowledged he knew the informant when he took the call, even though
Howard did not explicitly state his name.
The VPD filed a preliminary notice of disciplinary action against Cruz
seeking a ninety-day suspension. The county prosecutor's office subsequently
notified the VPD that Cruz's false testimony caused the office to dismiss with
prejudice eleven cases involving twenty defendants. In thirteen instances, first-
or second-degree charges had been dismissed, mostly involving Cruz as the
affiant on search warrant applications. In addition, the prosecutor's office stated
that it "shall not proffer or present Detective Cruz as a witness with respect to
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any future cases in which it would be necessary for our Office to call him as a
witness."
After receiving this information, the VPD filed an amended preliminary
notice of disciplinary action seeking removal of Cruz based on the following
charges: incompetency, inefficiency, or failure to perform duties, N.J.A.C.
4A:2-2.3(a)(1); conduct unbecoming a public employee, N.J.A.C. 4A:2-
2.3(a)(6); inability to perform duties, N.J.A.C. 4A:2-2.3(a)(3); and other
sufficient cause, N.J.A.C. 4A:2-2.3(a)(11). Cruz was also charged with failure
to comply with VPD rules and regulations: abide by all rules, regulations and
departmental procedures, 4:1.4; officers will conduct themselves with high
ethical standards 4:1.7; performance of duty, 4:9.2; truthfulness under oath,
5:5.6; duty of employee to appear and testify, 5:5.1. After a departmental
hearing, all charges were sustained, and VPD served a final notice of
disciplinary action terminating Cruz.
Cruz appealed his termination to the Commission, which transmitted the
matter to the Office of Administrative Law (OAL). An Administrative Law
Judge (ALJ) held a five-day hearing.
The ALJ issued an initial decision finding VPD proved the charges against
Cruz by a preponderance of the evidence. The ALJ's decision was based on his
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finding that Cruz's testimony he did not know Howard's identity at the time of
the warrant hearing lacked credibility.
With respect to the incompetency, inefficiency, or failure to perform
duties charge, N.J.A.C. 4A:2-2.3(a)(1), the ALJ found Cruz
failed to perform several of his duties specifically
involving how to respond to questions of a Superior
Court Judge during a telephonic search warrant
[application] and by not disclosing his "hunch" as to the
identity of the anonymous calle[r] to [the assistant
prosecutor]. He clearly demonstrated an absence of
judgment in a sensitive position requiring public trust
in the agency's judgment.
With respect to the charges of conduct unbecoming a public employee,
N.J.A.C. 4A:2-2.3(a)(6), inability to perform duties, N.J.A.C. 4A:2-2.3(a)(3),
and VPD rules and regulations, unethical conduct, 4:1.7, and duty to testify,
5:5.1, the ALJ found Cruz
failed to perform duties required of him in his handling
of the call to [the search warrant judge] for a telephonic
search warrant. [Cruz] knew the identity of the caller
and failed to advise the Judge of this fact when asked.
Even though [Cruz's] intent was to protect the identity
of his informant and was not done with ill intent, his
untruthfulness creates issues whereby he cannot testify
in any criminal court without a prosecutorial disclosure
of his "Brady Issue,"[2] thereby, reducing his ability to
serve as a police officer. This clearly constitutes
2
See Brady v. Maryland, 373 U.S. 83 (1963).
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behavior which could not only adversely affect the
morale of the facility and [sic] undermine public
respect in the services provided. The refusal of the
Cumberland County Prosecutor's Office to call [Cruz]
as a witness in any criminal trial serves to el[]iminate
[Cruz's] ability to perform central functions of his job;
namely making arrests and testifying in court.
Although the ALJ did not explicitly sustain the remaining charges under the
VPD rules and regulations, he sustained the other sufficient cause charge,
N.J.A.C. 4A:2-2.3(a)(11).3
Finally, the ALJ found bypassing progressive discipline and terminating
Cruz's employment was justified because Cruz's conduct
was egregious such that progressive discipline need not
be considered. The public who is served, and other
employees, deserve to be able to expect that police
officers are able to make arrests that will lead to
convictions of those deserving such punishment.
[Cruz's] inability to testify in a criminal court
proceeding within Cumberland County eliminates his
ef[f]ectivness to serve the public as a Police Officer
within the [VPD].
3
The ALJ's decision refers to both N.J.A.C. 4A:2-2.3(a)(11) and (a)(12) when
addressing the other sufficient cause charge. When Cruz was charged, other
sufficient cause was listed under (a)(11). See 27 N.J. Reg. 2884(a) (Aug. 7,
1995). A subsequent amendment listed other sufficient cause under (a)(12). See
44 N.J. Reg. 576(a) (Mar. 5, 2012). The ALJ's citation to the two regulations is
immaterial to his analysis.
A-0829-18T2
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Cruz filed exceptions to the ALJ's decision with the Commission. On
September 21, 2018, the Commission, after "having made an independent
evaluation of the record," issued a final administrative determination adopting
the ALJ's findings of fact and initial decision affirming Cruz's termination.
This appeal followed. Cruz makes the following arguments for our
consideration:
POINT I
THE ALJ FAILED TO CONSIDER THE CREDIBLE
TESTIMONY OF THE C.I. [HOWARD]
RENDERING HIS DECISION ARBITRARY,
CAPRICIOUS AND UNREASONABLE.
POINT II
THE A.L.J. FAILED TO CONSIDER THAT WHEN
APPLYING FOR A SEARCH WARRANT, A POLICE
OFFICER MAY NOT RELY ON A HUNCH AS THE
BASIS OF HIS PROBABLE CAUSE.
POINT III
THE A.L.J.'S RULING WAS MANIFESTLY
INCONSISTENT WITH THE LACK OF EVIDENCE
THAT APPELLANT MADE A FALSE SWORN
STATEMENT TO A SUPERIOR COURT JUDGE.
POINT IV
THE A.L.J.'S DECISION TO UPHOLD
APPELLANT'S TERMINATION OF EMPLOYMENT
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WAS EXCESSIVE AND NOT IN PROPORTION TO
THE OFFENSES CHARGED.
II.
Our role in reviewing the decision of an administrative agency is limited.
Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009). We will not
disturb the determination of the Commission absent a showing "that it was
arbitrary, capricious or unreasonable, or that it lacked fair support in the
evidence, or that it violated legislative policies expressed or implicit in the civil
service act." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
Decisions of administrative agencies carry with them a presumption of
reasonableness. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001).
Moreover, "[a]ppellate courts must defer to an agency's expertise and superior
knowledge of a particular field." Greenwood v. State Police Training Ctr., 127
N.J. 500, 513 (1992). However, we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly legal issue."
Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
"There is no constitutional or statutory right to a government job." State-
Operated Sch. Dist. v. Gaines, 309 N.J. Super. 327, 334 (App. Div. 1998). Civil
Service employees' rights and duties are governed by the Civil Service Act,
which provides that a public employee may be subject to major discipline for
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various employment-related offenses. N.J.S.A. 11A:2-6; N.J.A.C. 4A:2-2.3. In
an appeal from a disciplinary action or ruling by an appointing authority, the
appointing authority bears the burden of proof to show, by a preponderance of
the evidence, that the action taken was appropriate. N.J.S.A. 11A:2-21;
N.J.A.C. 4A:2-1.4(a); In re Polk, 90 N.J. 550, 560 (1982).
Having carefully reviewed Cruz's arguments in light of the record and
applicable legal principles, we conclude the Commission's final agency decision
is sufficiently supported by the record and is not arbitrary, capricious, or
unreasonable. We add the following comments.
There is ample support for the ALJ finding, after having the opportunity
to make a credibility determination, that Cruz knew Howard's identity when he
testified at the warrant hearing. Because of Cruz's long history of interacting by
telephone with Howard, it is reasonable to conclude Howard would not have
needed to explicitly state his name during the call for Cruz to identify him.
Howard called Cruz's department-issued phone, which has a private number.
There is evidence in the record Howard has a distinctive voice and his statement
during the call asking Cruz to not "blow my cover," implies Howard thought
Cruz knew his identity. In addition, Cruz's supervisor and a co-worker
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submitted affidavits stating Cruz identified Howard by name as the informant
shortly before the warrant hearing.
We also reject Cruz's argument the Commission erred by not imposing
progressive discipline. Generally, the severity of a public employee's discipline
should increase incrementally. In re Herrmann, 192 N.J. 19, 33 (2007).
However, progressive discipline can be waived if "the misconduct is severe,
when it is unbecoming to the employee's position or renders the employee
unsuitable for continuation in the position, or when [its] application . . . would
be contrary to the public interest." Ibid.; see also In re Stallworth, 208 N.J. 182,
196-197 (2011); Div. of State Police v. Jiras, 305 N.J. Super. 476, 478-82 (App.
Div. 1997) (finding bypass of progressive discipline appropriate after State
Trooper assaulted a prisoner, rendering the Trooper unable to function as a law
enforcement officer).
Although there is no evidence in the record of prior disciplinary action
against Cruz, we cannot conclude the Commission's decision to terminate him
was arbitrary, capricious, or unreasonable. Because of Cruz's false testimony,
the county prosecutor dismissed pending charges against several defendants and
determined her office would not call Cruz as a witness in future prosecutions.
The county prosecutor's decision effectively prevents Cruz from performing an
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essential duty of his office. In addition, false testimony by a police detective
has the potential to severely undermine public confidence in law enforcement,
warranting his removal from office.
To the extent we have not addressed Cruz's other arguments, we conclude
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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