                                NOT FOR PUBLICATION WITHOUT THE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-2600-17T1

G.Y.,

          Plaintiff-Appellant/
          Cross-Respondent,

v.

TOWNSHIP OF HANOVER,

          Defendant-Respondent/
          Cross-Appellant.


                    Argued December 18, 2018 – Decided February 19, 2019

                    Before Judges Rothstadt, Gilson, and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Docket No. L-0698-17.

                    Shalom D. Stone argued the cause for appellant/cross-
                    respondent (Stone Conroy LLC, attorneys; Shalom D.
                    Stone and James D. DeBartolo, of counsel and on the
                    briefs).

                    Stephen E. Trimboli argued the cause for
                    respondent/cross-appellant (Trimboli & Prusinowski,
                    LLC, attorneys; Stephen E. Trimboli, of counsel and on
                    the briefs; Lauren W. Kavanagh and Sarah Gober, on
                    the briefs).
PER CURIAM

      This appeal arises out of disciplinary charges brought by the Township of

Hanover (Township) that resulted in the termination of employment of a police

officer. The officer, G.Y.,1 appeals from a January 2, 2018 judgment that denied

his action to dismiss the disciplinary charges and vacate the decision of the

Township to terminate his employment. The Township cross-appeals from a

decision of the trial court to allow G.Y., on de novo review, to supplement the

record with his testimony. We reject the arguments on both the appeal and cross-

appeal and affirm.

                                         I.

      The Township terminated G.Y.'s employment as a police officer after

finding he had committed disciplinary infractions, including two counts of

misconduct, N.J.S.A. 40A:14-147. Those disciplinary infractions arose out of a

domestic dispute between G.Y. and his wife, K.Y.

      On June 18, 2014, K.Y. called the Township Police Department to report

a domestic dispute. Police officers responded to the home. Upon arrival, an

officer found G.Y. standing outside on the porch. G.Y. told the officer that his


1
  Because the disciplinary charges involve allegations of domestic violence, we
use initials to protect privacy interests and the confidentiality of the record. See
R. 1:38-3(c)(12).
                                                                            A-2600-17T1
                                         2
wife was "drunk again, like she is every night." The officer then entered the

house and saw K.Y. walking out of a downstairs bathroom, crying and visibly

upset. The officer later testified that K.Y. did not appear intoxicated. K.Y.

informed the officer that she and G.Y were in the midst of a divorce proceeding,

and they had gotten into an argument.

      Later that evening, K.Y. provided the officer with a signed, written

statement, which read:

            I, [K.Y.], hereby make the following voluntary
            statement. At approximately nine p.m. I was sitting in
            the TV room in chair, [G.Y.] was on couch, I asked him
            why he keeps moving the ottoman I use. He said why
            do you worry about that when you are destroying the
            family and filing for divorce. I am trying to make
            arrangements for Disney. I told him I was not going to
            Disney, we were getting a divorce. He said there was
            no reason to get divorced. I said there was because he
            is abusive. He then said he is not abusive. He then said
            his lawyer said I was being a bitch and was trying to
            take the houses in Arizona. He said if I try to take the
            houses in Arizona he would take me and the family
            down. He walked over and whispered this in my face.
            I then got up and walked into the study to get the house
            phone as I felt threatened. He followed me and said
            you are not calling the police and knocked the phone
            out of my hand. I then went to get my cell phone and
            he said again if I try to take his houses he will take me
            down. I was in the TV room. He pushed me down,
            slapped the cell phone out of my hand and to the
            ground, and said I am taking you down. He got on top
            of me on couch and put both hands tightly around my
            throat. I was screaming, trying to scream. He got off

                                                                        A-2600-17T1
                                        3
             of me and I ran toward the front door. He pushed me
             into the love seat in the front room and the love seat slid
             into the toys about one foot. I then got up and tried to
             get out of the front door. He said do not call police, I
             will lose my job and it would be your fault. I was on
             front porch. He gave me my cell phone. I went in
             bathroom, locked door and called 911. Outside the
             door he kept whispering not to call the police or it
             would be my fault if he lost his job.

      Shortly after this incident, G.Y. was arrested and charged with simple

assault, N.J.S.A. 2C:12-1(a)(1), based on the allegation that he injured his wife

when he "put[ ] his hands around [her] throat causing red marks around her

throat and also knock[ed] a cordless telephone out of her hand causing an injury

to her right hand[.]"    At that time, K.Y. was granted a domestic violence

temporary restraining order (TRO) against G.Y.

      On July 15, 2014, a consent order with civil restraints was entered in the

divorce action between K.Y and G.Y. That consent order provided that K.Y.

would dismiss her TRO against G.Y., but the dismissal would not be deemed an

admission that G.Y. did not commit the alleged acts of domestic violence.

Thereafter, the TRO and the charges of simple assault against G.Y. were

dismissed.

      In October 2014, the Township's police department began an internal

affairs investigation of the June 18, 2014 incident. As part of the investigation,


                                                                           A-2600-17T1
                                         4
a lieutenant conducted a recorded interview with K.Y on October 24, 2014, and

a recorded interview with G.Y. on November 24, 2014. On March 2, 2015, the

lieutenant submitted his internal affairs report. The report concluded that G.Y.'s

actions on June 18, 2014, constituted a "domestic violence incident" and that

G.Y. was not "truthful in answering [the] questions regarding [the] incident

during [the] interview on" November 24, 2014.

      The Chief of Police received the report on August 12, 2015, and on August

25, 2015, notice of charges were served on G.Y. The notice included two

charges, both of which alleged misconduct under N.J.S.A. 40A:14-147. Charge

one alleged that G.Y. assaulted his wife during an altercation. That charge also

stated that G.Y. had received "several demeanor complaints involving women

in [his] disciplinary history," and had received "a total of thirteen (13) sustained

disciplinary charges since [he] w[as] hired with the Township of Hanover Police

Department on August 17, 1992." Charge two alleged that G.Y. gave untruthful

statements concerning the physical altercation with his wife during an internal

affairs investigation interview. The recommended penalty for both charges was

termination of employment.

      G.Y. disputed the charges and requested an evidentiary hearing. Prior to

the hearing, G.Y. moved to dismiss the disciplinary charges under the "forty-


                                                                            A-2600-17T1
                                         5
five day rule" of N.J.S.A. 40A:14-147. A hearing officer heard oral argument

on the motion to dismiss and recommended that the motion be denied. The

Township adopted that recommendation.

      The evidentiary hearing was conducted on September 23 and November

21, 2016. At the hearing, the Township presented testimony from five police

officers who had responded to the residence on June 18, 2014, and the lieutenant

who had conducted the internal affairs investigation. K.Y. also testified, but

when she could not remember the events of June 18, 2014, her written statement

concerning that evening was admitted into evidence and read into the record.

      On March 9, 2017, the hearing officer, in a comprehensive thirty-eight-

page opinion, reviewed the testimony and evidence presented during the hearing

and determined that the "charges for misconduct as to both counts ha [d] been

sustained."     The hearing officer recommended termination of G.Y.'s

employment. Shortly thereafter, the Township accepted and adopted the hearing

officer's report and determinations with one exception that is not relevant to th is

appeal. G.Y. was then terminated from his employment as a police officer.

      On March 24, 2017, G.Y. filed a complaint in the Law Division seeking a

de novo review of the disciplinary charges and his termination in accordance

with N.J.S.A. 40A:14-150. G.Y. also asserted a violation of the "forty-five day


                                                                            A-2600-17T1
                                         6
rule" established in N.J.S.A. 40A:14-147. In conducting its review, the trial

court allowed G.Y. to supplement the record with his own testimony.

      Following two days of hearings, on January 2, 2018, the trial court entered

a judgment and written statement of reasons finding G.Y. had engaged in

"serious" misconduct warranting termination. Initially, the trial court ruled that

the forty-five day rule did not apply to the charges of misconduct, and that to

the extent that the rule was applicable to the remainder of the charges, those

charges were brought within the required time. The trial court then found that

the written statement by K.Y. was admissible as a recorded recollection under

Rule 803(c)(5). N.J.R.E. 803(c)(5). In admitting that written statement, the trial

court found that K.Y. could not recall the events of June 18, 2014, but she had

given a written statement that same evening, and at the evidentiary hearing she

testified that the written statement was drafted in her handwriting and she had

signed the statement. The trial court then found that K.Y.'s written statement

was "competent evidence" that was reliable and appropriate for the court to

consider in its de novo review.

      The trial court evaluated G.Y.'s testimony and found that, when

considered on its own, it was sufficient to establish a predicate act of domestic

violence in the form of harassment under N.J.S.A. 2C:33-4(c). In that regard,


                                                                          A-2600-17T1
                                        7
the trial court found that G.Y. knew that K.Y. felt threatened, he knew that K.Y.

wanted to call the police, but he twice directly interfered with K.Y.'s ability to

call the police, and then refused to leave the home.

      G.Y. now appeals the judgment entered by the trial court. The Township

cross-appeals from the trial court's ruling allowing G.Y. to supplement the

record and to testify before the trial court. We first address G.Y.'s appeal .

                                        II.

      On his appeal, G.Y. challenges the de novo review by the Law Division

and argues (1) the disciplinary charges were barred by the forty-five day rule;

(2) the court relied on inadmissible hearsay; (3) the finding of misconduct was

not supported by the evidence in the record; and (4) even if his conduct

warranted sanctions, termination of employment was inappropriate under the

doctrine of progressive discipline.     We are not persuaded by any of these

arguments.

      A. The Forty-Five Day Rule

      The Township is a non-civil service jurisdiction. Therefore, the statutory

framework of N.J.S.A. 40A:14-147 to -151 governs disciplinary proceedings

brought against police officers. Ruroede v. Borough of Hasbrouck Heights, 214

N.J. 338, 343 (2013). That framework has a "forty-five day rule" "for the filing


                                                                           A-2600-17T1
                                         8
of a complaint alleging a violation of the internal rules and regulations of a law

enforcement unit." Aristizibal v. City of Atlantic City, 380 N.J. Super. 405,

408-09 (Law Div. 2005); see N.J.S.A. 40A:14-147. In relevant part, the statute

provides:

            A complaint charging a violation of the internal rules
            and regulations established for the conduct of a law
            enforcement unit shall be filed no later than the 45th
            day after the date on which the person filing the
            complaint obtained sufficient information to file the
            matter upon which the complaint is based. The 45-day
            time limit shall not apply if an investigation of a law
            enforcement officer for a violation of the internal rules
            or regulations of the law enforcement unit is included
            directly or indirectly within a concurrent investigation
            of that officer for a violation of the criminal laws of this
            State. The 45-day limit shall begin on the day after the
            disposition of the criminal investigation. The 45-day
            requirement of this paragraph for the filing of a
            complaint against an officer shall not apply to a filing
            of a complaint by a private individual.

            A failure to comply with said provisions as to the
            service of the complaint and the time within which a
            complaint is to be filed shall require a dismissal of the
            complaint.

            [N.J.S.A. 40A:14-147.]

      The rule applies only to violations of internal rules and regulations; it does

not apply to charges of misconduct. McElwee v. Borough of Fieldsboro, 400

N.J. Super. 388, 394 (App. Div. 2008). Moreover, in calculating the forty-five-


                                                                            A-2600-17T1
                                         9
day timeframe, "it is not the happening of the event giving rise to discipline that

starts the clock for purposes of evaluating timeliness, but the receipt of

'sufficient information' by the one who is authorized to file the charge that is

significant." Roberts v. Div. of State Police, 191 N.J. 516, 524 (2007).

      Here, we affirm the trial court for two reasons. First, as just noted, the

rule applies only to violations of internal rules and regulations; it does not apply

to charges of misconduct. Second, the violations of the departmental rules and

regulations were brought within the requisite time. The person authorized to

file the charges against G.Y. was the Township Chief of Police. The record

establishes that the Chief received the internal affairs investigation report on

August 12, 2015. Thirteen days later, on August 25, 2015, notice of the charges

were filed against G.Y. Consequently, the charges were filed within the forty-

five day timeframe.

      B. The Findings of Misconduct

      G.Y. argues that the trial court relied on inadmissible hearsay in finding

that he committed misconduct. Specifically, he challenges the court's decision

to admit and consider K.Y.'s written statement from June 18, 2014. G.Y.

contends that the statement is inadmissible because the court failed to consider

its trustworthiness.     He also argues that, because K.Y.'s statement is


                                                                            A-2600-17T1
                                        10
inadmissible hearsay, the court's finding of misconduct violates the residuum

rule and should be overturned. G.Y. then argues that the trial court only relied

on his testimony in finding misconduct, but his testimony did not support a

finding of misconduct. We begin our analysis of these arguments by identifying

the standard of review under N.J.S.A. 40A:14-150 and our scope of review on

appeal.

      N.J.S.A. 40A:14-150 permits police officers in non-civil service

municipalities to seek de novo review of disciplinary actions by the Law

Division of the Superior Court. Specifically, the statute provides:

            Any member or officer of a police department or force
            in a municipality . . . , who has been tried and convicted
            upon any charge or charges, may obtain a review
            thereof by the Superior Court . . . . The court shall hear
            the cause de novo on the record below and may either
            affirm, reverse or modify such conviction.

            [N.J.S.A. 40A:14-150.]

The statute further provides that "[e]ither party may supplement the record with

additional testimony subject to the rules of evidence." Ibid.

      Permitting de novo review by the Law Division is designed "to provide

employees of non-civil service communities with an independent tribunal to

review their disciplinary actions." Ruroede, 214 N.J. at 357 (quoting In re

Phillips, 117 N.J. 567, 578 (1990)). Thus, the Law Division "consider[s] the

                                                                         A-2600-17T1
                                       11
matter 'anew, afresh [and] for a second time.'"       Ibid. (second alteration in

original) (quoting Phillips, 117 N.J. at 578). Accordingly, the court "makes its

own findings of fact." Ibid. (quoting Phillips, 117 N.J. at 578). While the court

"must give due deference to the conclusions drawn by the original tribuna l

regarding credibility, those initial findings are not controlling." Ibid. (quoting

Phillips, 117 N.J. at 579). Instead, the court "review[s] the record to determine

whether there is sufficient, competent evidence to prove the charges against [the

officer] by a preponderance of the evidence." Id. at 361.

      Appellate courts play "a limited role in reviewing the de novo

proceeding." Phillips, 117 N.J. at 579. "[T]he court's 'function on appeal is not

to make new factual findings but simply to decide whether there was adequate

evidence before the [ ] Court to justify its finding of guilt.'" Ibid. (second

alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Accordingly, an appellate court should not disturb the de novo findings of the

trial court unless "the decision below was 'arbitrary, capricious or unreasonable'

or '[un]supported by substantial credible evidence in the record as a whole[.]'"

Ibid. (first alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J.

571, 580 (1980)). An appellate court does not, however, defer to the trial court's

legal conclusions. Cosme v. Borough of E. Newark Twp. Comm., 304 N.J.


                                                                           A-2600-17T1
                                       12
Super. 191, 203 (App. Div. 1997) (first citing In re J.W.D., 149 N.J. 108, 117

(1997); then citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

      Hearsay that is admissible pursuant to the rules of evidence is legally

competent evidence. See Ruroede, 214 N.J. at 361-62 (referring to hearsay

evidence properly admitted under Rule 803(b)(1) as "competent evidence").

Under Rule 803(c)(5), hearsay evidence that is a "recorded recollection" is

admissible. Rule 803(c)(5) defines a recorded recollection as:

            A statement concerning a matter about which the
            witness is unable to testify fully and accurately because
            of insufficient present recollection if the statement is
            contained in a writing or other record which (A) was
            made at a time when the fact recorded actually occurred
            or was fresh in the memory of the witness, and (B) was
            made by the witness or under the witness' direction or
            by some other person for the purpose of recording the
            statement at the time it was made, and (C) the statement
            concerns a matter of which the witness had knowledge
            when it was made, unless the circumstances indicate
            that the statement is not trustworthy; provided that
            when the witness does not remember part or all of the
            contents of a writing, the portion the witness does not
            remember may be read into evidence but shall not be
            introduced as an exhibit over objection.

            [N.J.R.E. 803(c)(5).]

We review a trial court's decision to exclude or admit evidence under the hearsay

rules for an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins.

                                                                         A-2600-17T1
                                      13
Co., 202 N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J.

480, 492 (1999)).

      Here, the trial court did not abuse its discretion in finding K.Y.'s signed,

written statement, dated June 18, 2014, admissible under Rule 803(c)(5). First,

K.Y. had a limited memory concerning the incident that occurred on June 18,

2014. Specifically, she testified that she recalled having "a physical incident"

with G.Y., and that because of the incident she had called the police, but she

could not "recollect details" of the event. Moreover, when asked whether she

recalled preparing a written statement regarding the events on June 18, 2014,

she answered: "I believe I did." Nonetheless, when she reviewed the document

to see if it would refresh her recollection, she explained that she recognized her

signature on the document, but the document itself did not help her recall details

of the incident.

      Next, the statement was made at approximately 11:15 p.m. on the evening

of the incident. That is, the statement was made less than two-and-a-half hours

from the time of the alleged incident. Accordingly, the second requirement of

Rule 803(c)(5) is satisfied as the statement was made at a time when the facts

recorded were fresh in K.Y.'s memory.




                                                                          A-2600-17T1
                                       14
      Third, the statement was made by K.Y. as evidenced by her testimony that

she believed she gave the police a statement on that date, and that she recognized

her signature on the document. Lastly, the statement concerns a matter of which

K.Y. had knowledge. K.Y. was personally involved in the incident.

      G.Y. argues that the court's decision to admit the statement under Rule

803(c)(5) was an error because the court did not address the trustworthiness of

K.Y.'s statement. That argument is not persuasive. Rule 803(c)(5) allows courts

to bar a recorded statement when "the circumstances indicate that the statement

is not trustworthy[.]" N.J.R.E. 803(c)(5). Here, there was no indication of

untrustworthiness. In that regard, the trial court found that K.Y. had knowledge

about the incident when she made the statement. That finding satisfied the rule's

requirements. See N.J.R.E. 803(c)(5)(C); see also Biunno, Weissband & Zegas,

Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on

N.J.R.E. 803(c)(5) (2018) ("The rule permits the exclusion of the recorded

statement if the circumstances indicate that the statement is untrustworthy.").

      Because the trial court did not abuse its discretion in admitting K.Y.'s

statement, it also did not violate the residuum rule. K.Y.'s statement, as a

recorded recollection, constituted legally competent evidence that supported the

finding of misconduct against G.Y. See Ruroede, 214 N.J. at 361-62 (finding


                                                                          A-2600-17T1
                                       15
hearsay evidence properly admitted under Rule 803(b)(1) is "competent

evidence").

      Moreover, even if the statement is considered as hearsay, there was

sufficient other evidence to support the finding of misconduct.            In an

administrative hearing, "[h]earsay may be employed to corroborate competent

proof, or competent proof may be supported or given added probative force by

hearsay testimony." Id. at 359 (quoting Weston v. State, 60 N.J. 36, 51 (1972)).

Nevertheless, "a fact finding or a legal determination cannot be based on hearsay

alone." Ibid. (quoting Weston, 60 N.J. at 51). Instead, a hearing officer's

decision must possess "a residuum of legal and competent evidence in the record

to support it." Ibid. (quoting Weston, 60 N.J. at 51). This "residuum rule" is

codified in the Uniform Administrative Procedure Rules, N.J.A.C. 1:1-15.5(b),

and provides: "Notwithstanding the admissibility of hearsay evidence, some

legally competent evidence must exist to support each ultimate finding of fact

to an extent sufficient to provide assurances of reliability and to avoid the fact

or appearance of arbitrariness."

      Here, the record before the trial court included the testimony of five

officers who responded to the house on June 18, 2014, the testimony of the

lieutenant who conducted the internal affairs investigation, and the testimony of


                                                                          A-2600-17T1
                                       16
G.Y. That record supports the court's conclusion that harassment had been

demonstrated by a preponderance of the evidence based on G.Y.'s attempts to

prevent K.Y. from calling the police, his following of K.Y. through the house as

she attempted to call the police, and his act of hitting the phone out of K.Y.'s

hand. See N.J.S.A. 2C:33-4; Mann v. Mann, 270 N.J. Super. 269, 271 (App.

Div. 1993).

      C. The Termination of Employment

      G.Y. next argues that even if misconduct occurred, it did not warrant

termination of his employment. Instead, he contends that the court should have

imposed progressive discipline. We disagree.

      On de novo review, a court may "alter a sanction imposed by an

administrative agency only 'when necessary to bring the agency's action into

conformity with its delegated authority.       The [c]ourt has no power to act

independently as an administrative tribunal or to substitute its judgment for that

of the agency.'" In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re Polk, 90

N.J. 550, 578 (1982)).      "[W]hen reviewing administrative sanctions, 'the

test . . . is "whether such punishment is so disproportionate to the offense, in

light of all the circumstances, as to be shocking to one's sense of fairness."'" Id.




                                                                            A-2600-17T1
                                        17
at 28-29 (second alteration in original) (quoting Polk, 90 N.J. at 578); see also

In re Carter, 191 N.J. 474, 484 (2007).

      Appellate courts will uphold "dismissal of employees, without regard to

whether the employees have had substantial past disciplinary records, for

engaging in conduct that is unbecoming to the position." Herrmann, 192 N.J. at

34. In that regard, our Supreme Court has explained:

            [P]rogressive discipline is not "a fixed and immutable
            rule to be followed without question" because "some
            disciplinary infractions are so serious that removal is
            appropriate notwithstanding a largely unblemished
            prior record." "Thus, progressive discipline has been
            bypassed when an employee engages in severe
            misconduct, especially when the employee's position
            involves public safety and the misconduct causes risk
            of harm to persons or property."

            [In re Stallworth, 208 N.J. 182, 196-97 (2011) (citations
            omitted) (first quoting Carter, 191 N.J. at 484; then
            quoting Herrmann, 192 N.J. at 33).]

      Police officers are held to a high standard of responsibility and conduct.

Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965).

"[A] police officer [cannot] complain that he or she is being held to an unfairly

high standard of conduct. Rather, 'it is one of the obligations he [or she]

undertakes upon voluntary entry into the public service.'" Phillips, 117 N.J. at

577 (quoting In re Emmons, 63 N.J. Super. 136, 142 (App. Div. 1960)). Indeed,


                                                                         A-2600-17T1
                                      18
a finding of misconduct against a police officer "need not be predicated upon

the violation of any particular rule or regulation, but may be based merely upon

violation of the implicit standard of good behavior which devolves upon one

who stands in the public eye as an upholder of that which is morally and legally

correct." In re Tuch, 159 N.J. Super. 219, 224 (App. Div. 1978) (first citing

Emmons, 63 N.J. Super. at 140; then citing Asbury Park v. Civil Serv. Dep't.,

17 N.J. 419, 429 (1955)).

      Here, G.Y.'s misconduct was sufficiently egregious and unbecoming to

his office to warrant removal even if he had no prior disciplinary history.

Moreover, G.Y. had thirteen sustained complaints over the course of his twenty-

four-year career. Consequently, the determination that G.Y.'s removal was

justified is supported by substantial, credible evidence in the record and was not

arbitrary, capricious, or unreasonable.

                                          III.

      On its cross-appeal, the Township challenges the trial court's decision to

allow G.Y. to supplement the record with his own testimony. The Township

initially consented to G.Y. testifying before the trial court. Nevertheless, it

asserts that G.Y.'s testimony "went well beyond the scope of what was intended

by the Legislature when it provided parties with the right to 'supplement the


                                                                          A-2600-17T1
                                       19
record' on appeal under N.J.S.A. 40A:14-150." The Township argues that as

G.Y. did not testify at the disciplinary hearing, his testimony at the de novo

review did not add to "previously presented evidence, but instead presented an

entirely new facet to the case."

      The Township's narrow interpretation of "supplementing the record" is not

supported by the language of N.J.S.A. 40A:14-150, the relevant case law, or the

Legislature's goals in permitting de novo review of disciplinary proceedings for

police officers in non-civil service municipalities.      N.J.S.A. 40A:14-150

provides that on a de novo review by the Superior Court, "[e]ither party may

supplement the record with additional testimony subject to the rules of

evidence." The statute contains no language limiting the extent to which the

record may be supplemented.

      Moreover, in Grasso v. Borough Council of Glassboro, 205 N.J. Super. 18

(App. Div. 1985), we broadly interpreted a party's right to supplement the record

on a de novo review under N.J.S.A. 40A:14-150. See id. at 24-27. Specifically,

we found that "[t]here can be no question but that the source statute to N.J.S.A.

40A:14-150 was to afford a public employee not under civil service with a 'new

trial.'" Id. at 26. We went on to explain that the purpose of the 1981 Amendment

to N.J.S.A. 40A:14-150 was "to encourage a de novo trial on the record below


                                                                         A-2600-17T1
                                      20
but at the same time to permit additional testimony at the hearing in the same

manner that testimony is adduced on appeal to the Commission by a public

employee in a municipality governed by the Civil Service Act [N.J.S.A. 11A:1-

1 to 12-6]." Id. at 27. Notably, on a de novo review before the Commission, a

public employee may present "all relevant evidence and testimony[.]" Id. at 26

(citing In re Darcy, 114 N.J. Super. 454, 459 (App. Div. 1971)).

      Here, the trial court permitted G.Y. to supplement the record with his own

testimony. In that testimony, G.Y. discussed the domestic dispute that occurred

on June 18, 2014. Thus, the testimony was relevant to the disciplinary charges

filed against him. Accordingly, G.Y.'s testimony appropriately supplemented

the record because it provided additional information on the incident underlying

the disciplinary charges.

      Affirmed.




                                                                        A-2600-17T1
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