NOT FOR PUBLICATION WITHOUT THE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-2614-19
IN THE MATTER OF
COREY CORBO,
UNION CITY POLICE
DEPARTMENT.
____________________
Argued January 18, 2022 – Decided January 26, 2022
Before Judges Fasciale and Firko.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2015-2471.
Zinovia H. Stone argued the cause for appellant Corey
Corbo (Caruso Smith Picini, PC, attorneys; Timothy R.
Smith, of counsel; Steven J. Kaflowitz and Zinovia H.
Stone, on the briefs).
Michael J. Dee argued the cause for respondent Union
City Police Department (O'Toole Scrivo, LLC,
attorneys; Andrew Gimigliano and Nicole M. DeMuro,
of counsel and on the brief; Joseph A. Natale, on the
brief).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Debra A. Allen, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Corey Corbo appeals from a January 30, 2020 final agency decision
entered on remand by the Civil Service Commission (CSC). 1 On remand, an
administrative law judge (ALJ) conducted a hearing at which the Union City
Police Department (City) produced testimony from three Raritan Bay Medical
Center (Raritan Bay) employees who confirmed that Corbo tested positive for
cocaine. After the remand proceeding, the CSC considered the entire record,
including new findings by the ALJ, hospital records, and testimony; it conducted
a de novo review; and then removed Corbo from employment as a law
enforcement employee. There exists substantial credible evidence in the remand
record to support the CSC decision, which is not arbitrary, capricious, or
unreasonable. We therefore affirm.
On appeal, Corbo argues:
POINT I
THE [CSC] ERRED IN ITS DECISION TO ADOPT
. . . THE [ALJ'S] DECISION RECOMMENDING
CORBO'S TERMINATION.
1
We initially expressed concerns about the basis of an earlier determination to
remove Corbo from his employment. See In re Corbo, No. A-5610-15T3 (App.
Div. Mar. 1, 2018) (slip op. at 10). The Court then remanded to the Office of
Administrative Law (OAL) for further proceedings. See In re Corbo, 238 N.J.
246, 255 (2019).
A-2614-19
2
A. Introduction.
B. The City Has Failed To Establish That
The Lab Reports Were Admissible As
Business Records Because Of Its Three
Witnesses, Two Did Not Work At Raritan
Bay Medical Center In June[] 2014, The
Third Witness Did Not Recall The Events
In Issue, And All Three Witnesses Only
Testified That They Assumed That The
Records Were Kept In The Ordinary
Course Of Business Because There Were
Procedures In Place To Do So.
C. The City Has Not Presented Any
Evidence Whatsoever To Show That Its
Testing Methodology Was Reliable And
Has Failed To Produce Any Expert Or
Medically Qualified Individual To
Confirm That The Testing Used Was
Sufficient To Confirm That Corbo Had
Ingested Cocaine.
D. Even Assuming, Arguendo, That The
Lab Reports Were Admissible, Given That
The Testing Used Was Unreliable, And
Since The [ALJ] Based Her Affirmation
[O]f Corbo's Removal On Her Prior
Decision Which Rested On Garcia's
Inadmissible Statements, The City Has Not
Met Its Burden Of Proof, And The [ALJ's]
Recommendation Was In Error.
POINT II
UNDER THE ATTORNEY GENERAL'S BINDING
DRUG TESTING POLICY, THIS MATTER SHOULD
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3
HAVE BEEN DISMISSED BY THE CITY ONCE
GARCIA'S HEARSAY WAS RULED
INADMISSIBLE.
POINT III
THE EVIDENTIARY FINDINGS OF THIS COURT
HAVE NOT BEEN DISTURBED BY THE NEW
JERSEY SUPREME COURT AND, THEREFORE,
THIS COURT'S DECISION TO EXCLUDE
GARCIA'S STATEMENTS STANDS AND THESE
STATEMENTS SHOULD NOT HAVE BEEN
CONSIDERED BY THE [ALJ].
I.
In Point I, Corbo essentially concedes that on June 11, 2014, emergency
medical personnel and police were dispatched to his home, he needed medical
attention, and was taken to Raritan Bay for treatment where he was administered
a urine drug screen, which revealed he tested positive for cocaine. Rather than
arguing he did not ingest cocaine, Corbo challenges the evidential basis for
admitting into evidence medical records, primarily contending that the records
are inadmissible hearsay. Of course, we review evidentiary rulings for abuse of
discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We see no error, let alone
plain error.
Corbo's medical problem warranted immediate attention. When he
arrived at the hospital, medical personnel evaluated the situation and, in part
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4
based on what they were told, tested Corbo's urine. After completing the test,
they learned that Corbo had cocaine in his system. On remand, the City proved
he ingested cocaine by producing testimony from three Raritan Bay witnesses.
Relying on their testimony, the ALJ admitted into evidence R-6 (the medical
records) and R-7 (the lab report) under N.J.R.E. 803(c)(6) (the business records
exception).
A statement contained in a writing or other record of
acts, events, conditions, and, subject to Rule 808,
opinions or diagnoses, made at or near the time of
observation by a person with actual knowledge or from
information supplied by such a person, if the writing or
other record was made in the regular course of business
and it was the regular practice of that business to make
such writing or other record.
[N.J.R.E. 803(c)(6).]
"This exception does not apply if the sources of information or the method,
purpose or circumstances of preparation indicate that it is not trustworthy." Ibid.
On remand, the qualified witnesses satisfied the requirements of the rule,
including establishing trustworthiness.
Rachel Clarke is responsible for overseeing the accuracy and security of
medical records at Raritan Bay. Clarke testified that while a patient is at a
Raritan Bay hospital, the records are stored electronically in the lab system
software for a particular department. Several times a day or at the end of each
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5
day, the individual department records are batched to the hospital's main
electronic records system. Clarke confirmed that providers enter clinical
information and documentation as soon as the provider interacts with a patient.
Clarke testified that R-6 matched Corbo's then current medical records in
Raritan Bay's record system. Clarke stated that based on her twenty years of
experience working in this hospital system, it was the regular course of business
at Raritan Bay for medical information to be input at or near the time of whatever
is being done at the hospital.
June Mahoney, the Administrative Director of Laboratories at Raritan
Bay, identified R-7 as a printed copy of test results from the laboratory
information system. Mahoney testified that reports like R-7 are created after the
completion of testing and that they are generated in the laboratory's ordinary
course of business. Mahoney testified that the results of a laboratory test "are
analyzed on the [testing] instrument, the instrument electronically feeds those
results to the laboratory information system, [then] the laboratory information
sends it to the medical record." Mahoney stated that in the laboratory records
information system, Achala Parikh is displayed as the technologist who r an
Corbo's urine immunoassay test. Mahoney confirmed that page one of R-7 is a
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6
true and complete copy of the laboratory records maintained at Raritan Bay for
Corbo.
Achala Parikh is a laboratory technician at Raritan Bay and has been since
1990. Parikh testified that she was working in the Raritan Bay laboratory in
June 2014. Describing the process of obtaining and testing a urine samp le,
Parikh testified that the medical personnel send the specimen from the
Emergency Room through a pneumatic system to a data processor. The data
processor opens the tube, scans it with a time stamp, and then gives it to the
specific laboratory department.
Parikh testified that a lab technician on the morning shift performs quality
control and calibration of the testing instrument daily. For the urine
immunoassay test, the technician places the tubed specimen into the Cobas
testing instrument and hits the "start" button. Testing takes fifteen minutes, and
when complete, the Cobas testing results appear on the technician's computer
screen through the electronic records system. The technician then confirms the
patient's identification information with the results.
Parikh testified that she never physically inputs any information into the
Cobas instrument or in the electronic system because it is automatically
generated. Parikh stated that she had personally never had an instance where
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7
the results on the Cobas instrument's screen were different than the results
generated in the electronic system.
The ALJ did not abuse her discretion in ruling the lab reports and test
results were admissible under the business records exception. The witnesses'
foundational testimony established the lab reports and hospital records met the
requisite conditions. The lab reports were made by an employee, Parikh, during
her regular duties as a lab technician. The lab reports were generated
contemporaneously and automatically through the Cobas instrument testing
procedure. The witnesses testified that it was Raritan Bay's regular practice to
generate and maintain lab reports in its electronic system. The method of
generating and maintaining the reports indicate that the lab reports are
trustworthy. Parikh specifically testified that she has never deviated from the
procedures of generation and storage to which she testified and has never known
a situation where the results in the electronic system were different than the
results of the testing by the Cobas instrument.
Contrary to Corbo's contention, the City was not required to produce
expert testimony to establish the reliability of his drug screen, which was a
simple diagnostic test. "There is no reason to believe that a computerized
business record is not trustworthy unless the opposing party comes forward wit h
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8
some evidence to question its reliability." Hahnemann Univ. Hosp. v. Dudnick,
292 N.J. Super. 11, 18 (App. Div. 1996).
We acknowledge that in an earlier hearing, Corbo called Dr. Richard
Saferstein as an expert in forensic toxicology, and he testified that the
immunoassay test used is "presumptive at best" and should generally require a
confirmation test, which was not performed here. Dr. Saferstein opined that
there is a likelihood that the test could produce a false positive result for cocaine.
But it is uncontested that Dr. Saferstein testified that he had "no problems with
the reliability of the immunoassay test." His view, however, was that these tests
"lack a high degree of specificity."
In our view, the remand record demonstrates that the immunoassay test
administered to Corbo is reliable. Corbo's urine tested positive for cocaine
metabolite benzolyecgonine, opiates, and benzodiazepines. Dr. Saferstein
conceded that the medications prescribed to Corbo that he could have possibly
ingested prior to the test would not have created a false positive for cocaine. Dr.
Saferstein's testimony did not overcome the presumptive reliability of the urine
immunoassay test, and the Raritan Bay records were properly admitted under
the business records exception.
A-2614-19
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We reject Corbo's conclusory argument that Clarke and Mahoney were
not qualified as foundation witnesses because they were not employed at Raritan
Bay in June 2014. "[U]nder both the New Jersey and federal rules of evidence,
the foundation witness generally is not required to have personal knowledge of
the facts contained in the record." Id. at 17-18. The foundation witness—like
here—is competent if she "(1) can demonstrate that the computer record is what
the proponent claims and (2) is sufficiently familiar with the record system used
and (3) can establish that it was the regular practice of the business to make the
record." Id. at 18.
The three witnesses were qualified to testify as to the hospital records.
They were familiar with the Raritan Bay records system and the hospital's
regular practice of generating and maintaining records. Furthermore, Parikh
personally ran Corbo's test through the Cobas testing instrument. The City
established the hospital records met the requirements of the business record
exception and their trustworthiness. Corbo had the burden of demonstrating the
test results were not reliable and failed to do so. Therefore, the hospital records
were properly admitted.
A-2614-19
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II.
Our role in reviewing a final agency decision is limited. All Stars Auto
Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018). We give
deference to a final agency decision, "unless there is a clear showing that it is
arbitrary, capricious, unreasonable, or that it lacks fair support in the record."
In re Herrmann, 192 N.J. 19, 27-28 (2007). The party challenging the
administrative action bears the burden of making that showing. Lavezzi v. State,
219 N.J. 163, 171 (2014).
Here, the CSC conducted a de novo review of the entire record and
adopted the ALJ's findings of fact and conclusions. The ALJ found the three
Raritan Bay witnesses credible. The witnesses testified as to the generation and
maintenance of the records, as well as the procedure for conducting the urine
immunoassay test. Corbo's only contradicting witness, Dr. Saferstein, testified
about the lack of specificity in the test and the potential for false positives, but
he did not attack the reliability of the test. The ALJ found there was no evidence
Corbo's test results were unreliable when generated and recorded in June 2014.
There was nothing arbitrary, capricious, or unreasonable about the CSC's
final decision to remove Corbo from employment. Corbo did not present any
evidence to contradict that the urine immunoassay test was not made
A-2614-19
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contemporaneously or that there was an issue with the transfer of information in
Raritan Bay's electronic records system. The hospital records reliably indicate
a positive result for cocaine. We conclude that substantial, credible evidence
supported the CSC's final decision.
III.
In Point III, Corbo argues the ALJ erred in relying on the prior record,
specifically purported hearsay statements. In rendering her remand decision,
the ALJ included the statements as background from her prior record in her
initial decision. In performing its independent analysis, the CSC found that the
statements, particularly those by Corbo's then girlfriend, were admissible as
hearsay under the residuum rule.
Hearsay is "a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement." N.J.R.E. 801(c).
Hearsay statements are inadmissible unless they fall within an exception.
N.J.R.E. 802. The residuum rule permits an ALJ to admit otherwise
inadmissible hearsay. N.J.A.C. 1:1-15.5(a). Under the rule, "[h]earsay evidence
which is admitted shall be accorded whatever weight the judge deems
appropriate taking into account the nature, character and scope of the evidence,
A-2614-19
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the circumstances of its creation and production, and generally, its reliability."
Ibid. Although a fact may not be based on hearsay alone, "[h]earsay may be
employed to corroborate competent proof, or competent proof may be supported
or given added probative force by hearsay testimony." Weston v. State, 60 N.J.
36, 51 (1972).
Officer Jamey DiGrazio, the responding officer to Corbo's medical
emergency, testified at the first hearing that he spoke to Corbo's then girlfriend
Jessica Garcia while paramedics treated Corbo. DiGrazio testified he told
Garcia that Corbo's "health was failing" and asked her if she had any information
about what Corbo ingested so that he could "forward it to the paramedics so they
could provide better care." What she said in part prompted the urine testing.
DiGrazio testified that Garcia told him Corbo "did a bump about five days
ago." Based on his training and experience, DiGrazio understood Garcia's
statement to mean that Corbo had ingested cocaine. In her first initial decision,
the ALJ deemed Garcia's statement to be admissible under several hearsay
exceptions. On her specific earlier evidentiary reasoning, we disagreed and
reversed. The Court remanded the matter to the OAL for a determination of
whether the hospital records were admissible as business records. The remand
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13
did not limit the admissibility of Garcia's statements under any other applicable
basis.
The CSC found that Garcia's statement "is now admissible as hearsay
supported by a residuum of competent evidence, namely the hospital records
which revealed that a cocaine metabolite was present in [Corbo's] urine." The
hospital records and lab report, which reflect the positive test results for cocaine
conducted at Raritan Bay, are competent proof that Corbo ingested cocaine.
Garcia's statement to DiGrazio that Corbo did a "bump" of cocaine five days
earlier corroborates the positive test results. Once the City successfully
introduced the Raritan Bay records under the business records exception, the
ALJ did not err in considering Garcia's statement under the residuum rule. That
is especially true for one more reason.
Although the City has not raised this argument below, Garcia's statement
may also be admissible if not offered for its truth. A statement not offered for
its truth is "not hearsay and no exception to the hearsay rule is required to
introduce that evidence at trial." State v. Long, 173 N.J. 138, 152 (2002). An
out-of-court statement may be admissible when offered not for its truthfulness,
but to show the statement's effect on the listener. See Carmona v. Resorts Int'l
Hotel, Inc., 189 N.J. 354, 376 (2007). A statement may also be admissible when
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offered to explain a party's actions. See Jugan v. Pollen, 253 N.J. Super. 123,
136-37 (App. Div. 1992).
Garcia's statement can be used to demonstrate its effect on the listener,
DiGrazio. After DiGrazio heard Garcia's statement, he conveyed that
information to the paramedics. The statement could also be used for its effect
on medical personnel at Raritan Bay, and to explain why Raritan Bay conducted
a urine immunoassay test. Although neither party nor the ALJ considered
Garcia's statement for this purpose, it may admissible if not used to prove that
Corbo ingested cocaine. While at the hospital, the medical personnel
determined, based in part on what Garcia had said, that they would test Corbo's
urine.
Finally, we determine that Corbo's argument that the Attorney General's
drug testing policy for tests conducted at the State Toxicology Laboratory
prevents the City from disciplining Corbo is without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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