Original WP 5.1 Version (NOTE: This decision was approved by the court for publication.)
This case can also be found at 323 N.J.Super. 141.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
MARK VAN ENGELEN and MICHAEL CURCIO,
DENNIS O'LEARY and
Argued February 16, 1999 - Decided July 13, 1999
Before Judges Skillman, P.G. Levy and Lesemann.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County.
Sharon H. Moore argued the cause for appellants
(Gebhardt and Kiefer, attorneys; Deborah B.
Rosenthal, on the brief).
Anthony R. Mautone argued the cause for respondent
Mark Van Engelen (Minichino and Mautone, attorneys;
Mr. Mautone, on the brief).
Michael Critchley argued the cause for respondent
Michael Curcio (Mr. Critchley joined in the brief of
respondent Van Engelen).
The opinion of the court was delivered by
LESEMANN, J.S.C. (temporarily assigned).
Defendants, Dennis O'Leary, the former Prosecutor of Sussex
County, and William Geffken, the former Chief of Detectives of
Sussex County, appeal pursuant to leave granted from a Law Division
order denying their motion for summary judgment dismissing
plaintiffs' malicious prosecution complaint against them. The
complaint alleges that defendants had brought about the indictment
of plaintiff Michael Curcio, a police officer for the Borough of
Sussex (which is in Sussex County), on drug charges and charges of
destruction of evidence, and that of plaintiff Mark Van Engelen,
Chief of the Sussex Borough Police Department, for alleged
complicity in the destruction of evidence. Plaintiffs charged that
defendants obtained the indictment because Curcio had filed charges
against patrons of a tavern known as Captain Bill's Bar, which was
owned by William Morrison, a former client of O'Leary and an
acquaintance of Geffken, and they wanted to protect and assist
A primary issue (besides the question of whether defendants'
actions constitute malicious prosecution) is whether the immunity
granted by N.J.S.A. 59:3-8 (a part of the New Jersey Tort Claims
Act) for "instituting or prosecuting" a judicial or administrative
proceeding applies here, or whether it is rendered inapplicable by
N.J.S.A. 59:3-14, which says that no immunity applies where a
public official's conduct "was outside the scope of his employment
or constituted a crime, actual fraud, actual malice or willful
We conclude that under the standards of Brill v. Guardian Life
Ins. Co. of America,
142 N.J. 520 (1995), summary judgment should
have been granted since the evidence submitted was insufficient "to
permit a rational fact finder" to conclude that O'Leary and Geffken
had acted for improper motives; that at most plaintiffs
demonstrated mistaken judgment by defendants, and that,
accordingly, the complaint was properly dismissed.
O'Leary became Sussex County Prosecutor on February 1, 1991.
In his deposition he acknowledged that when he assumed his
position, he had limited criminal experience. Partly to compensate
for that limitation, he appointed Geffken as his Chief of
Detectives. O'Leary said he had regarded himself as a "lawyer"
rather than a "cop," whereas Geffken had long experience as a State
Police officer and would be regarded as a "cop" within the
Prosecutor's office. See footnote 1
So far as appears, O'Leary's and Geffken's tenure was
relatively smooth until January 10, 1992, when a melee broke out in
Captain Bill's Bar in Sussex Borough. William Morrison, who owned
the tavern, had been a client of O'Leary's before O'Leary became
Prosecutor. Both said that O'Leary had performed some
miscellaneous tasks for Morrison over the years, the last of which
had been preparation of a deed in 1988. O'Leary, however, had
continued as registered agent for Morrison's corporation after he
The incident at Captain Bill's was reported in the press and
received considerable local attention. Police from other
municipalities had assisted and Curcio had played a major role in
the event. At one point he removed the liquor license from the
wall and took it with him. In his deposition he indicated that he
thought he had a right to do that, that such action was standard
procedure, and that it would result in an immediate closing of the
bar. He also testified that on the day after the raid, the Mayor
of Sussex Borough told him to return the license.
On January 13, 1992, the Monday following the weekend raid,
O'Leary convened a meeting with Geffken, Van Engelen and Curcio.
According to the plaintiffs, O'Leary indicated that his office
would follow-up on the Captain Bill's incident and the Borough
Police Department, which consisted only of Chief Van Engelen and
three officers (Curcio and two others), would not be required to do
Five days later, on January 18, 1992, O'Leary wrote a letter
to the Mayor and Council of Sussex Borough, sending a copy to the
local news media. In view of the claim that O'Leary's motivation
throughout was to assist Morrison, it is worth reproducing that
letter in its entirety:
January 18, 1992
Mayor Peter Horvath & Council
Sussex Borough Municipal Building
2 Main Street
Sussex, NJ 07461
RE: Captain Bill's
Dear Mayor and Council:
The incidents which occurred at Captain
Bill's Tavern on January 10, 1992 are
reprehensible and demand the strongest action
on your part. When the situation reaches the
point where police are physically thrown out
of a bar when attempted [sic] to enforce the
law, it is time for the authorities to take
immediate action. I am advised by the local
police that this is a common occurrence and I
am sure you agree with me that this should be
brought to an immediate halt.
The attitude, as articulated by one of
the bartenders that the police do not run the
town, "We do" is disturbing and perhaps best
sums up not only the philosophy of the lawless
element which apparently hangs out in this
establishment but also is the best reason for
the Mayor and Council to take the swiftest and
sternest possible action. I enclose a copies
of relative portions of police reports of
recent incidents for your review.
In addition, members of my office faced
an angry and intoxicated mob in Captain Bill's
about three weeks ago when they went in to
make a drug arrest.
Clearly a major problem in Sussex Borough
is an inordinate use of alcohol and drugs.
This must end now! It is clear that drastic
measures have to be taken to "retake" the
borough from the lawless element that has
established such a strong presence in the
community. I intend to begin a concerted
campaign by law enforcement to this end. I am
sure the responsible citizens of Sussex
Borough support this and I trust we will have
your cooperation and assistance.
I am committed to this end and I am sure you
share this commitment with me. A first step
in that direction is by the Mayor and Council
imposing a substantial license suspension or
revocation in this case.
Very truly yours,
cc: Joseph Pojanowski, Esq.
By FAX: 471-0512
All Local Media
It is difficult to see how the Prosecutor could have been more
emphatic in his demand for stern action concerning Captain Bill's
and its liquor license.
A few weeks after the Captain Bill's incident, Daniel Mayer
and Cheryl Viars, who occupied a room in the Sussex House Hotel,
said that Curcio had come to their room and smoked cocaine in their
presence. Viars also said that Curcio had asked her for sex in
exchange for cocaine, but she had turned him down.
Viars first made those statements to Cindy Klein, a bartender
at Captain Bill's, in early February 1992. She said that Curcio
had met Mayer earlier in the day and had arranged to come to their
room, which he did about 2:00 a.m. He brought cocaine with him and
smoked it, although neither Viars nor Mayer joined him in the drug
Cindy Klein passed that information to her employer, William
Morrison. Morrison then asked Viars if she had really said that
about Curcio and if so whether it was true. Viars assured Morrison
it was true.
Morrison then called O'Leary and passed the information to
him. O'Leary referred Morrison to the Chief of Detectives, Geffken,
and Morrison then talked to Geffken. When asked before the Grand
Jury why he had called the Prosecutor rather than the local police,
Morrison responded that he had no confidence in the Borough Police.
Geffken received that information from Morrison on February
21, 1992. Later that day, Morrison again called Geffken. This
time he said Viars was present in his bar and he had Viars speak
directly to Geffken. Viars then repeated what she had said earlier
about Curcio coming to her and Mayer's room and "doing cocaine."
Geffken arranged a meeting with Viars for the following Monday at
a local diner, but when Geffken and an investigator from his office
went to the diner, Viars failed to appear.
Geffken also said that after receiving this information about
Curcio, he contacted Paul Kelly, Chief of Police in Union City,
where Curcio had worked before coming to Sussex Borough. Kelly
told Geffken that while Curcio was a police officer in Union City,
he had become "involved with drugs, tested positive for use during
an Amnesty Program, entered an inpatient drug rehabilitation
center, but left without completing the program and was
subsequently terminated from the Union City Police Department."
On February 28, 1992, Geffken met with Chief Van Engelen. Van
Engelen acknowledged that over the last three weeks, he had heard
rumors of Curcio's involvement with cocaine. Nevertheless, he had
done nothing to investigate those rumors until about one hour ago.
He also told Geffken that Curcio had been one of the persons with
access to the police evidence locker and Van Engelen had done
nothing to curtail that access or inventory any drugs in the
locker. See footnote 2 Further, Van Engelen told Geffken that earlier that very
day, Curcio and the two other Sussex Borough officers had destroyed
the narcotics evidence that had been held in the evidence locker.
Van Engelen said the destruction had been "video taped," but there
was no indication that the narcotics had been inventoried before
being destroyed. Van Engelen also said he had approved the
destruction and that the action was consistent with authorization
from Investigator Cohen of the Prosecutor's Office. Cohen later
denied that statement.
On February 29, 1992, Geffken obtained a sworn statement from
Mayer, essentially repeating his earlier charge of Curcio's use of
cocaine in the Sussex House. Geffken gave that additional
information to O'Leary and also advised O'Leary of Van Engelen's
disclosure that the contents of the evidence locker had been
destroyed. O'Leary confirmed that information with Van Engelen,
and when he had done so, advised Van Engelen that the Prosecutor's
Office was superceding the Sussex Borough Police Department
effective immediately, and that Van Engelen and his entire
department were suspended. O'Leary then had the Prosecutor's
Office assume the functions of the Borough Police Department.
At or about that same time, O'Leary had the entire Curcio/Van
Engelen matter submitted to the Grand Jury. In his deposition he
testified that he did so primarily to have the Grand Jury
investigate the matter and not with the intent of obtaining an
indictment. He also noted that it was an assistant prosecutor,
rather than O'Leary himself, who made the actual presentation to
the Grand Jury.
That presentation included testimony by Viars and Mayer and
also by Morrison and Geffken concerning statements made to them by
Viars and Mayer. In addition, Captain Edward Driscoll, a
Prosecutor's investigator, told the Grand Jury that a resident of
the Sussex House, one Robert Beguin, had described Curcio's
knocking on Mayer's door on the night when Mayer and Viars said he
had come to their room to smoke cocaine. According to Driscoll,
Beguin also said he had seen Curcio in Mayer's room that night,
that Curcio looked like he was in the process of using cocaine, and
that the next day Mayer told him that Curcio had in fact been
ingesting cocaine in Mayer's room the night before. Driscoll
further testified that another Sussex House resident, Joseph Caron,
had also said that Mayer had told him about "doing cocaine" with
Curcio. Another witness, Marcranda, also described Curcio coming
to Mayer's place of employment looking for Mayer.
On April 9, 1992, Curcio and Van Engelen were indicted, Curcio
on nine counts, including possession and distribution of cocaine,
destruction of physical evidence, tampering with a witness,
hindering his own prosecution, misconduct in office and theft of
property. Van Engelen was charged with hindering a criminal
prosecution and misconduct in office.
On September 8, 1992, Sussex County Assignment Judge Reginald
Stanton denied defendants' motion to dismiss the indictments. The
State proceeded to trial against Curcio and on February 8, 1994, a
jury found Curcio not guilty of all the charges against him. The
Prosecutor's office then dismissed the charges against Van Engelen.
In February 1995, Van Engelen filed suit in the United States
District Court against O'Leary, Geffken, Sussex County, the Borough
of Sussex and William Morrison. In August 1995, Curcio did the
same. In February 1996, those two matters were dismissed for lack
of federal jurisdiction and almost immediately thereafter Curcio
and Van Engelen filed the present complaints against O'Leary,
Geffken and Morrison. Answers were filed, discovery proceeded, and
in early 1998 the defendants moved for summary judgment dismissing
the complaints. On March 6, 1998, the Law Division denied that
motion and on March 13, 1998, it denied defendants' motion for
reconsideration. We then granted leave to appeal.
Two provisions of the New Jersey Tort Claims Act are
significant in resolving the immunity issues in this case:
N.J.S.A. 59:3-8, which contains a grant of immunity, and N.J.S.A.
59:3-14a, which removes that immunity when a public employee acts
for some improper private motive. N.J.S.A. 59:3-8 provides that,
A public employee is not liable for
injury caused by his instituting or
prosecuting any judicial or administrative
proceeding within the scope of his employment.
N.J.S.A. 59:3-14a, however, establishes what our Supreme Court has
termed an "outer limit" for that immunity, Tice v. Cramer
133 N.J. 347, 375 (1993), by providing that,
Nothing in this act shall exonerate a
public employee from liability if it is
established that his conduct was outside the
scope of his employment or constituted a
crime, actual fraud, actual malice or wilful
misconduct.See footnote 3
It is that latter provision which plaintiffs claim applies
here and serves to remove whatever immunity O'Leary and Geffken
might otherwise have enjoyed under N.J.S.A. 59:3-8. Their claim is
that O'Leary (and Geffken) acted not for proper prosecutorial
reasons, but rather to assist Morrison and protect him from
legitimate law enforcement efforts by Curcio and Van Engelen. If
supported by the evidence, we are satisfied that such actions would
constitute "actual fraud, actual malice or wilful misconduct"
within the meaning of N.J.S.A. 59:3-14(a).See footnote 4
The issue, therefore, is whether plaintiffs, in opposing
defendants' motion for summary judgment, satisfied their obligation
under Brill v. Guardian Life Ins. Co., of America,
142 N.J. 520
(1995), to present "competent evidence" which, viewed in the light
most favorable to plaintiffs, was "sufficient to permit a rational
fact finder" to conclude that O'Leary's and Geffken's actions
constituted "actual fraud, actual malice or willful misconduct."
We are satisfied that there is not sufficient evidence to
support a rational conclusion that either O'Leary or Geffken acted
for any such improper motive. In fact, there is virtually no
evidence to support plaintiffs' contention. Their claims are based
primarily upon speculation - and speculation that is not very
Turning first to O'Leary, we note that carelessness or poor
decision making do not constitute "actual fraud, actual malice or
wilful misconduct." Those terms connote "commission of a forbidden
act with actual . . . knowledge that the act is forbidden." Marley
v. Borough of Palmyra,
193 N.J. Super. 271, 294-95 (Law Div. 1983);
see also, Fielder v. Stonack,
141 N.J. 101, 123-27 (1995). There
is nothing to support such a conclusion here. To the contrary, the
facts which justified O'Leary's actions are virtually overwhelming.
He was presented with two witnesses who swore they saw Curcio use
cocaine. Of her own volition, one of those persons, Cheryl Viars,
passed that information to several others. Curcio's otherwise
unexplained connection with Mayer and Viars on the night in
question was confirmed by the testimony of one witness (Marcranda)
who described Curcio coming to Mayer's place of employment looking
for Mayer, and by two others to whom Mayer described Curcio's
cocaine activities. One of them also saw Curcio in Mayer's room,
engaged in what seemed to be cocaine ingestion.
O'Leary also learned that Curcio had a cocaine problem which
had led to his dismissal from the Union City Police Department. In
addition, Curcio had access to cocaine stored in the evidence
locker and participated in destroying that evidence at a time when
the Prosecutor's office was investigating the charges against him.
As to Van Engelen, he acknowledged that he had done nothing to
investigate three-week-old rumors of Curcio's cocaine involvement.
He had not inventoried or secured the evidence locker and had
continued to permit Curcio free access to the locker contents. And
during the very time that the Prosecutor's office was investigating
charges against one of his officers, he authorized the destruction
of all the evidence held by the Borough.
In the face of those facts, plaintiffs' only basis for
asserting that O'Leary acted from improper motives is his former
representation of William Morrison. That seems a remarkably
tenuous motive for the extraordinary conduct with which O'Leary is
charged. The last services O'Leary had performed for Morrison were
a few years before he became Prosecutor. He had remained
registered agent for Morrison's corporation, a position he probably
should have avoided, but something which hardly seems a motive to
do what he is charged with doing here.
Plaintiffs do not clearly articulate their theory as to what
O'Leary intended to accomplish by his asserted pillorying of Curcio
and Van Engelen. Curcio had apparently filed complaints against a
number of patrons in Morrison's bar. It is not clear that any of
those complaints would have had an adverse effect on Morrison
himself. What is clear is that a suspension of Morrison's liquor
license for a substantial time, or a revocation of that license,
would certainly have had such an effect. And by his letter to the
Mayor and Council, O'Leary took a strong position in favor of just
such a suspension or revocation. One reading that letter could
hardly doubt that the Prosecutor was leaning hard on the governing
body to move strongly against Morrison.
In sum, while it is possible to speculate that O'Leary acted
for some improper motive, there is not sufficient evidence in the
record to enable a reasonable fact finder to reach such a
conclusion. The contrary conclusion is far more likely: that
O'Leary acted from legitimate, well-meaning concerns as a
prosecutor. That conclusion is consistent with his demand for
stern action against Morrison - the man plaintiffs claim he was
trying to help. His actions respecting Curcio and Van Engelen were
eminently reasonable and certainly understandable. In addition,
even assuming some motive for O'Leary to persecute Curcio, we see
no theory explaining such action against Van Engelen. Nor do
plaintiffs supply such a missing motive.
There is, then, simply no realistic evidence to support a
finding that O'Leary acted for any improper motive and thus, under
Brill, the motion judge should have granted the summary judgment
motion to dismiss the complaint against him.
As to Geffken, we note first that the immunity provided by
N.J.S.A. 59:3-8 covers a "public employee" and provides immunity
for "instituting or prosecuting" a judicial or administrative
proceeding. There is no reason that immunity should not apply to
Geffken, who functioned as Chief of Detectives in the Prosecutor's
office. Thus, the same issue arises with Geffken as arose with
O'Leary: was there sufficient evidence to justify a conclusion
that the immunity which Geffken would otherwise enjoy was lost
because he acted through "actual fraud, actual malice or willful
conduct," or "based upon personal predilection or gain" or for
"personal reasons" of his own?
The answer respecting Geffken is even clearer than that
concerning O'Leary. The wrongdoing plaintiffs allege against
Geffken seems to consist of his collaboration with O'Leary in
effecting plaintiff's indictment but it is not clear what they say
Geffken did in that regard. It is acknowledged that Geffken played
no part in O'Leary's disbanding the Sussex Borough Police
Further, if the claimed motivation for improper actions by
O'Leary was tenuous, that concerning Geffken was nonexistent. In
pretrial discovery plaintiffs explored Geffken's relationship with
William Morrison and established only that the two were
acquaintances but had no social or business relationship.
Plaintiffs also learned that Morrison's brother had been a State
Police officer at the same time that Geffken was with the State
Police, but again, there was no significant relationship between
the two and nothing to suggest any motive for Geffken to assist
In short, the reasoning which leads to the conclusion that
summary judgment should have been granted to O'Leary applies even
more strongly to Geffken and requires that the complaint against
Geffken be dismissed.
Finally, plaintiffs' argue that O'Leary should have presented
certain exculpatory evidence to the grand jury which indicted
plaintiffs. In discussing that claim, it bears repeating that even
if the claim is true, it does not render the statutory immunity
inapplicable unless it bespeaks a deliberate action, taken for
O'Leary's own improper purposes. Carelessness, unreasonable
conduct or even noncompliance with substantive law would not have
that effect. State v. Hogan,
144 N.J. 216 (1996), outlines the
circumstances under which a prosecutor is required to present so
called exculpatory evidence to a grand jury. The Court there
described that obligation as a limited one. It said the obligation
was to present "evidence that directly negates the guilt of the
accused." Id. at 237. That limited obligation, said the Court,
recognizes that the sole issue before the
grand jury is whether the State has made out a
primafacie case of the accused's guilt.
Thus, unless the exculpatory evidence at issue
squarely refutes an element of the crime in
question, that evidence is not within the
prosecutorial duty . . . [of disclosure].
Evidence that a witness recanted prior testimony normally need not
be presented to the grand jury:
"[R]ecantation testimony is generally
considered exceedingly unreliable" . . . .
Partly because recantations are often induced
by duress or coercion, . . . the sincerity of
a recantation is to be viewed with "extreme
[Id. at 239.](citations omitted)
In Hogan, the Court rejected a claim that the prosecutor
failed in his obligation to present recantation testimony to the
grand jury. The Court commented that the evidence in question "was
highly unreliable evidence" and concluded that determination of the
impact of the recantation "was a responsibility properly reserved
for the petit jurors. . . ." Id. at 240.
The exculpatory evidence to which plaintiffs refer here falls
squarely within that description. It dealt with the alleged
recantation of Mayer and Viars. It certainly did seem unreliable,
as both witnesses seemed to change their stories from time to
time. See footnote 5 Under Hogan, there was no obligation to present that
conflicting testimony to the grand jury. O'Leary complied with his
obligation and the non-presentation of the recantation and later
vacillations of the two witnesses did not demonstrate the
subjective bad faith, actual malice or fraud required to invalidate
O'Leary's statutory immunity.
Defendants are entitled to summary judgment not only because
of the immunity discussed above, but also because plaintiffs did
not demonstrate the existence of the necessary elements to sustain
a malicious prosecution claim. In Lind v. Schmid,
67 N.J. 255, 262
(1975), the court listed the four elements necessary to ground a
malicious prosecution complaint. There must be proof:
(1) that the criminal action was instituted by
the defendant against the plaintiff, (2), that
it was actuated by malice, (3) that there was
an absence of probable cause for the
proceeding, and (4) that it was terminated
favorably to the plaintiff.
Here, we may accept items (1) and (4) as having been
established. Items (2) and (3), however, were not established at
all. For all of the reasons noted above, there was no showing that
the indictments of Curcio and Van Engelen were "actuated by
malice." For those same reasons, we are satisfied that there was
more than sufficient "probable cause" for the proceeding. With two
of the four critical elements of the asserted cause of action
missing, there was no basis to maintain the complaint and thus, for
that reason as well, summary judgment should have been granted to
defendants, dismissing the complaints against them.
The orders appealed from are reversed and the matter is
remanded to the trial court for entry of summary judgment in favor
Footnote: 1 O'Leary also noted that many Sussex County municipalities do
not have municipal police departments and are served by the State
Police. He felt that Geffken's State Police background would be
useful in that respect.Footnote: 2 There was some indication that the cocaine Curcio allegedly
took to the Sussex House was contained in an envelope that
resembled a police evidence envelope. Footnote: 3
The statutory immunity granted by the Tort Claims Act is not
in fact significantly different from that established by the pre
existing common law. In Cashen v. Spann,
66 N.J. 541 (1975), which
was decided after the Tort Claims Act was adopted but involved
actions which predated the Act, the Supreme Court spoke of that
similarity and noted that the pre-statute law provided
prosecutorial immunity, but it was not "unqualified." It did not
apply, the Court said, when the prosecutor's actions were "based
upon personal predilection or gain" or when prosecutors acted "for
personal reasons of their own." Id. at 550. Absent such improper
motives, however, the immunity did apply:
It is only such acts [motivated by personal
reasons or personal predilection or gain]
which are redressable in actions for malicious
prosecution and malicious abuse of process.
Seealso, generally to the same effect, Burke v. Deiner,
97 N.J. 465 (1984); Hayes v. Mercer County,
217 N.J. Super. 614 (App.
108 N.J. 643 (1987); River Edge Savings and
Loan Ass'n v. Hyland,
165 N.J. Super. 540 (App. Div.), certif.denied,
81 N.J. 58 (1979),
Footnote: 4 They would also meet the common law standard of actions "based
upon personal predilection or gain," or actions taken "for
personal reasons" and not for legitimate law enforcement reasons,
and thus, were we dealing with immunity as it existed before the
Tort Claims Act, that immunity also would be lost.Footnote: 5 In his deposition O'Leary said that he believed the original
stories of Viars and Mayer. The prosecutor's trial problems arose
primarily because Mayer subsequently "fell apart," O'Leary said,
whereas Viars remained relatively steady.