ANDREW KING VS. BOROUGH OF SOUTH RIVER(C-000139-15, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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 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-3998-15T4

ANDREW KING,

Plaintiff-Appellant,

v.

BOROUGH OF SOUTH RIVER,

Defendant-Respondent.

_______________________________

Submitted July 5, 2017 – Decided October 23, 2017

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket
No. C-000139-15.

Sciarra & Catrambone, LLC, attorneys for
appellant (Charles J. Sciarra, of counsel; Mr.
Sciarra and Christopher A. Gray, on the
briefs.)

Apruzzese, McDermott, Mastro & Murphy, PC,
attorneys for respondent (Mark J. Blunda, of
counsel and on the brief).

PER CURIAM

Plaintiff, Andrew King, appeals from the April 22, 2016 order

for judgment upholding his termination from employment as a Borough
of South River police officer. The Borough had terminated

plaintiff after he tested positive for cocaine in a randomly

administered drug test. On appeal, plaintiff argues that the

Borough failed to prove the reliability of the New Jersey State

Toxicology Laboratory report on which it based its disciplinary

charges. Plaintiff also contends the judge who conducted the

hearing on his disciplinary charges improperly shifted the burden

of proof to him. The record belies these contentions.

Accordingly, we affirm the order of judgment.

During the first week in May 2014, the Borough of South River

Police Department randomly selected eight "police personnel,"

including plaintiff, for random drug testing. In accordance with

established policy and procedure, plaintiff filled out a drug

testing medication information form and provided a urine sample.

He represented on the form that he had taken no prescription or

non-prescription medication, cough medicines, cold tablets,

aspirin, diet medication, or nutritional supplements within the

preceding fourteen days. Plaintiff's sample was sent to the New

Jersey State Toxicology Laboratory in Newark, where testing

revealed the presence of Benzoylecgonine, a metabolite of cocaine.

Plaintiff was notified of the positive results, suspended

without pay, and charged with a violation of the Department's

policy on drug testing as well as numerous other infractions.

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Following a departmental hearing, a hearing officer recommended

plaintiff be terminated from his position. The Borough's governing

body adopted the hearing officer's recommendation and terminated

plaintiff's employment on August 10, 2015. Plaintiff timely filed

a complaint in Superior Court, alleging the Borough terminated him

without just cause, and seeking de novo review of the Borough's

decision.

Following a de novo hearing, Judge Frank M. Ciuffani issued

a written decision in which he determined plaintiff knowingly

ingested cocaine. Judge Ciuffani upheld plaintiff's termination

from employment as mandated by applicable drug testing policies.

On appeal, plaintiff argues two points: the New Jersey State

Toxicology Laboratory report is arbitrary; and the trial court

improperly shifted the burden of proof to him. We reject these

arguments and affirm the order for judgment, substantially for the

reasons expressed by Judge Ciuffani in his written decision. We

add the following brief comments.

Plaintiff supports his arguments mostly with unsupported

assertions and statements of the court that plaintiff takes out

of context. For example, in support of his first argument that

the lab report of plaintiff's urine sample was arbitrary, plaintiff

asserts, "[t]he laboratory in the matter failed to follow

established guidelines for the handling of drug testing." His

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citation to the record is a reference to the New Jersey Law

Enforcement Drug Testing Manual. Plaintiff cites to no evidence

that supports his claim the guidelines were not followed.

Moreover, the trial court rejected plaintiff's challenge to

the lab results. The State presented as a witness the Acting

Director of the New Jersey State Toxicology Laboratory, who gave

a detailed explanation of the protocols and procedures for testing

random samples, as well as the threshold or "cutoff" level for

cocaine. The Acting Director authenticated documents concerning

the tests performed on plaintiff's sample, explained that he

reviewed all the data concerning plaintiff's sample, and testified

he signed off on the final reports.

The court found the State Laboratory Director's testimony

concerning the sampling and testing procedures and protocols

"trustworthy and reliable." This finding was amply supported by

sufficient credible evidence in the record, so we will not disturb

it. Willingboro Mall, LTD. v. 240/242 Franklin Ave., LLC, 215

N.J. 242, 253 (2013).

Plaintiff's contention the trial court shifted the burden of

proof is also devoid of merit. In its written opinion, the trial

court stated explicitly that "[d]isciplinary charges against

police officers must be proven by the employer by a preponderance

of credible evidence." Plaintiff overlooks that statement and

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instead emphasizes the court's finding that plaintiff "failed to

prove that he knowingly ingested cocaine."

Plaintiff's arguments are without sufficient merit to warrant

further discussion. R. 2:11-3(e)(2).

Affirmed.

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