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                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-3270-16T3

CRISTOBAL J. POLANCO,

       Plaintiff-Respondent,

v.

OFFICER DARRYL DABNEY,
OFFICER JEFFREY BRAASCH,
OFFICER WILLIAM LOGAN, (incorrectly
impleaded as Officer Logan Williams),
OFFICER FRANK INGARGIOLA,
"DEUCE" K-9 OFFICER, and CITY OF
ATLANTIC CITY and its agents, jointly,
severally, and in the alternative, and 40/40
CLUB,

       Defendants-Appellants.


JACQUES POLANCO,

         Plaintiff-Respondent,

v.

OFFICER DARRYL DABNEY, OFFICER
GEORGE ADAMS, OFFICER ALEXUS SMITH,
OFFICER TRACEY, and CITY OF ATLANTIC
CITY,
       Defendants-Appellants.


            Submitted September 13, 2018 – Decided September 27, 2018

            Before Judges Koblitz, Ostrer, and Currier.

            On appeal from Superior Court of New Jersey, Law
            Division, Atlantic County, Docket Nos. L-1805-09 and
            L-1986-09.

            Law Offices of Riley and Riley, attorneys for appellants
            (Michael E. Riley and Rachel M. Conte, on the briefs).

            Bonjean Law Group, PLLC, attorneys for respondents
            (Jennifer A. Bonjean, on the brief).

PER CURIAM

      In this 42 U.S.C. § 1983 civil rights case, plaintiffs Cristobal and Jacques

Polanco1 allege Atlantic City police officers used excessive force during

plaintiffs' arrest following a melee outside a nightclub. After a jury returned a

verdict in favor of plaintiffs, defendants, Officer Darryl Dabney, Officer

William Logan and the City of Atlantic City2, (defendants) appeal from the


1
  Plaintiffs are brothers, and for the ease of the reader, we will refer to them by
their first names. No disrespect is intended.
2
  The jury returned a verdict of no cause of action against defendants Jeffrey
Braasch, Frank Ingargiola and George Adams. The record does not reflect a
disposition as to “Deuce” K-9 Officer, Alexus Smith or Officer Tracey. 40/40
Club reached a settlement with plaintiffs prior to trial.


                                                                           A-3270-16T3
                                        2
judgment and subsequent award of counsel fees.            After a review of the

contentions in light of the record and applicable principles of law, we affirm.

      After a fight broke out in an Atlantic City nightclub in the wee hours of

the morning, police officers were called to assist the club with the fracas. What

happened during the aftermath of the fight was the subject of conflicting

testimony between plaintiffs and defendants. The officer defendants described

how plaintiffs became aggressive with the officers outside of the club and

actively resisted arrest requiring the use of K-9 dogs to subdue them. Plaintiffs

alleged they were assaulted by multiple officers, and attacked and bitten by

police K-9 dogs.

      The jury determined defendant Logan violated Cristobal's Fourth

Amendment right to be free of excessive force. The jury further determined that

defendant Dabney committed an assault and battery against Jacques and used

excessive force during his arrest.      In addition, the jury found the City's

inadequate supervision of its officers resulted in the use of excessive force. Each

plaintiff was awarded $75,000. Plaintiffs' subsequent motion for fees and costs

was granted in the amount of $212,644.




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      Defendants appeal from the verdict, arguing the trial judge (1) improperly

excluded impeachment evidence; (2) erred in not giving the jury a requested

charge; and (3) improperly granted a fee award.

      Following his arrest, Cristobal was charged with several offenses

including aggravated assault, N.J.S.A. 2C:12-1 (b)(5)(A), and resisting arrest,

N.J.S.A. 2C:29-2(a)(3). After the aggravated assault charge was dismissed, the

remaining charges were downgraded and remanded to the Atlantic City

municipal court. After a trial, Cristobal was found guilty of the disorderly

persons offense of resisting arrest.

       Prior to trial, plaintiffs moved to exclude evidence of the conviction.

Initially, the judge ruled that the conviction would be admissible under N.J.R.E.

609 for impeachment purposes.          During the trial, after learning that the

conviction was for a disorderly persons offense, the judge advised the conviction

would not be admissible.

       Following the completion of Cristobal's testimony, the trial judge

permitted the jurors to ask questions of the witness. Several questions were

presented, and as there was no objection by counsel, Cristobal was asked: "Were

you arrested, and for what?" Cristobal answered: "I was arrested. I was never

told was – I was arrested until we went to court, and at this point I don't


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                                         4
remember because I know it got downgraded. I don't remember what I was

arrested for, but it got dismissed at a point."

      Defense counsel objected to the answer as misleading, arguing that

Cristobal's charges were not dismissed, but in fact, he was convicted of resisting

arrest. Defendants argued that Cristobal had "opened the door" to admission of

his municipal court conviction. The judge disagreed and gave the jury the

following curative instruction: "There was a portion of an answer that Mr.

Polanco gave to the effect that the charges were downgraded and dismissed.

You're to disregard that. That wasn't, wasn't the question that was asked. So

disregard that part . . . of his answer."

      The following day, defense counsel requested the court reconsider its

ruling and admit evidence of Cristobal's conviction of resisting arrest as rebuttal

for his misleading statement regarding the dismissal of his charges. The judge

denied the request, advising he would consider repeating the curative instruction

during the jury charge, and inviting defense counsel to provide a suggested

charge. Defendants did request a repetition of the curative instruction during

the charge conference and the judge acquiesced, giving the jury the following

instruction:

                     There are some things that you should not
               consider, any testimony that I have stricken from the

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                                            5
              record. This means that even though you may
              remember the testimony you are not to use it in your
              discussion or deliberations. Further, if I gave a limiting
              instruction on how to use certain evidence that evidence
              must be considered by you for that purpose only, you
              cannot use it for any other purpose. And also I gave –
              earlier I had – during the course of the trial I indicated
              you are not to consider any testimony about
              downgrading of any charges.

      Defendants argue that Cristobal, a practicing attorney admitted in two

jurisdictions was knowledgeable as to the law and its workings, and "blatantly

lied" to the jury about the disposition of his charges. Because the case hinged

on the credibility of the various witnesses, defendants assert the jury should have

been apprised of Cristobal's misleading statement and his municipal court

conviction.

      We review defendants' contention that the judge erred in denying the

admission of Cristobal's conviction for an abuse of discretion. "When a trial

court admits or excludes evidence, its determination is 'entitled to deference

absent a showing of an abuse of discretion, i.e., [that] there has been a clear error

of judgment.'" Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (quoting

State v. Brown, 170 N.J. 138, 147 (2001)). "Thus, we will reverse an evidentiary

ruling only if it 'was so wide off the mark that a manifest denial of justice




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                                          6
resulted.'" Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)

(internal quotation marks and citation omitted).

       We are not persuaded by defendants' argument. Neither attorney objected

to the proposed juror's question. Although misleading, Cristobal's answer to the

juror question was not without some veracity. The charge for aggravated assault

was dismissed, the remaining charges were downgraded or remanded to

municipal court. He was convicted of resisting arrest for not making his hands

available to the arresting officers. As soon as Cristobal gave his answer, counsel

conferred with the judge at sidebar and he immediately gave the jury a curative

instruction. The jury was instructed a second time during the jury charge to

specifically disregard that testimony. We presume that juries follow the court's

instructions. See Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97

(App. Div. 2013) (citing State v. Feaster, 156 N.J. 1, 65 (1998)). The judge did

not abuse his discretion by refusing to allow the admission of a conviction of a

disorderly persons offense under these circumstances.

      It also was not an abuse of discretion for the judge to decline defendants'

request to instruct the jury with the "false in one, false in all" charge. The judge

advised that the substance of the charge was encompassed in other instructions

given to the jurors. On appeal, defendants argue that Cristobal's comment


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                                         7
concerning the disposition of his charges was a lie about a material fact,

requiring the "false in one, false in all" charge. See State v. Ernst, 32 N.J. 567,

583-84 (1960). We disagree. The model jury charge on credibility instructs the

jury they can "believe everything a witness says or only part of it or none of it."

Model Jury Charges (Civil), 1.12 (L), "Credibility (long version)", (approved

Nov. 1998). It was within the trial judge's discretion to determine whether the

additional "false in one, false in all" charge was supported by the evidence. He

determined the credibility charge had the desired language. We discern no abuse

of discretion in the court's decision not to give the requested instruction.

      Following the verdict, plaintiffs' counsel submitted an application for

counsel fees and costs.     Although defendants state in their appeal that the

requested fees were supported by "nothing more than [plaintiffs' counsel] self-

serving affidavit," the record reflects that in support of their application, counsel

provided a certification, supporting documents, and detailed time records.3

After hearing oral argument and considering the submission, the trial judge

issued a written decision and order on April 13, 2017. He determined that lead

counsel's requested hourly rate of $495 was "higher than warranted under the



3
  In all, 78 pages of documents were supplied to the court in support of the fee
application.
                                                                             A-3270-16T3
                                         8
circumstances" and instead granted a lodestar hourly rate of $455. In addition,

the judge denied any reimbursement for costs because they had not been

adequately documented by plaintiffs. We discern no abuse of discretion in the

award of counsel fees. See Litton Indus. v. IMO Indus., Inc., 200 N.J. 372, 386

(2009) (holding an award of counsel fees will be reversed "only in the rarest of

occasions, and then only because of a clear abuse of discretion.") (quoting

Packard-Bamberger Co. v. Collier, 167 N.J. 427, 444 (2001)).

      Affirmed.




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