                        NOT FOR PUBLICATION WITHOUT THE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.




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