                                NOT FOR PUBLICATION WITHOUT THE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-1911-17T1

SCOTT DIROMA,

          Plaintiff-Appellant,

v.

SHARON LONGINETTI,

     Defendant-Respondent.
__________________________________

                    Argued October 24, 2018 – Decided November 5, 2018

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Special Civil Part, Passaic County, Docket
                    No. DC-003755-17.

                    Scott DiRoma, appellant, argued the cause pro se.

                    Christopher C. Josephson, Deputy Attorney General,
                    argued the cause for respondent (Gurbir S. Grewal,
                    Attorney General, attorney; Melissa Dutton Schaffer,
                    Assistant Attorney General, of counsel; Christopher C.
                    Josephson, on the brief).

PER CURIAM
      Plaintiff Scott DiRoma appeals from a November 9, 2017 order granting

defendant Sharon Longinetti summary judgment dismissing DiRoma's

defamation complaint. We affirm.

      The following facts are taken from the record. In 2008, DiRoma was

convicted of first-degree armed robbery, second-degree eluding a law

enforcement officer, fourth-degree unlawful possession of an imitation firearm,

and two counts of fourth-degree resisting arrest. DiRoma was sentenced to five

years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and five

years of mandatory parole supervision upon release from prison.

      DiRoma's convictions and sentence arose from two incidents, which led

him to enter a plea under two indictments. The first incident occurred in

November 2008, when police arrested DiRoma after he attempted to flee from

them in a stolen vehicle. Police searched the vehicle and seized a backpack

containing bolt cutters, a flat pry bar, a screwdriver multi-tool, and an adjustable

wrench.    As a result, DiRoma was charged with eluding, resisting arrest,

receiving stolen property, and possession of burglary tools.

      In March 2009, DiRoma entered a bowling alley in Green Brook

brandishing an imitation firearm and ordered the manager to open the safe. He

left with a large sum of money and attempted to flee the police, but was


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                                         2
apprehended, arrested, and charged with armed robbery, unlawful possession of

a firearm, and resisting arrest. DiRoma's plea and sentence followed.

      DiRoma was released from prison in May 2013. On April 1, 2016, a

parole officer visited DiRoma's residence and discovered an air pump wedge-

type locksmith tool on his bed. The officer confiscated the locksmith tool after

conferring with his supervisor, Longinetti. On April 7, 2016, the officer visited

DiRoma's residence and confiscated other tools commonly used to commit

burglary, namely, three metallic tools with hooks (Slim Jims), nine metallic rods

with hooks, and one plastic wedge.

      DiRoma met with his parole officer and Longinetti at the Newark parole

office on April 7, 2016. Longinetti advised DiRoma the tools were confiscated

because DiRoma had "a history of burglary." Longinetti sent DiRoma an email

the following day, in pertinent part, advising:

            I told you the tools were confiscated, specifically an
            AIR WEDGE HUK lock pick, [three] Slim Jims, [nine]
            metal rods with hooks and one plastic wedge, were
            taken due to the fact that I had made a determination
            that they are detrimental to your rehabilitation . . . due
            to the fact that your criminal history includes arrests for
            [r]obbery, [b]urglary[,] and [p]ossession of [b]urglary
            [t]ools[,] and the confiscated tools could be used to
            commit burglaries. In addition, when you were asked
            by parole officers the reason for possessing such tools,
            you could not offer a valid explanation, in that your first


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                                        3
            response was "I'm the kind of guy that likes tools," and
            your response was to offer no explanation.

      On August 23, 2016, the Division of Parole (Division) imposed a special

condition on DiRoma which prohibited him from "possessing burglary tools

such as Slim Jims, metal rods with hooks at the end, lockpick wedges or similar

such tools or devices." The Division concluded "DiRoma ha[d] a history of

[b]urglary, [r]obbery, and being in possession of [b]urglary [t]ools[.]

[T]herefore[,] these tools are deemed detrimental to DiRoma's rehabilitation."

      In April 2017, DiRoma filed a Law Division complaint alleging

defamation against Longinetti. Specifically, the complaint alleged Longinetti's

statement DiRoma had a "history of burglary" was false and defamatory. The

complaint also alleged DiRoma was damaged because Longinetti's statement

was in part "justification for [the Board's imposition of] special conditions" on

him. The complaint alleged that as a result DiRoma was "subject to increased

monitoring by the . . . [parole] [b]oard, causing [him] embarrassment and

distress." The complaint further alleged Longinetti's statement deprived him of

his property, namely, the confiscated tools.

      Following the filing of her answer, Longinetti filed a motion for summary

judgment.    The motion judge granted the motion concluding Longinetti's

statement was substantially true because DiRoma had been charged with a

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                                        4
higher graded crime than burglary, namely, robbery. The judge also noted

DiRoma had been previously charged with possession of burglary tools. This

appeal followed.

      Our review of an order granting summary judgment is de novo. Graziano

v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). "[W]e review the trial

court's grant of summary judgment . . . under the same standard as the trial

court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,

224 N.J. 189, 199 (2016). The court considers all of the evidence submitted "in

the light most favorable to the non-moving party," and determines if the moving

party is entitled to summary judgment as a matter of law. Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995). The court may not weigh the

evidence and determine the truth of the matter. Ibid. If the evidence presented

"show[s] that there is no real material issue, then summary judgment should be

granted." Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258

(App. Div. 1987) (citing Judson v. Peoples Bank & Tr. Co. of Westfield, 17 N.J.

67, 75 (1954)). "[C]onclusory and self-serving assertions by one of the parties

are insufficient to overcome [summary judgment]." Puder v. Buechel, 183 N.J.

428, 440-41 (2005).




                                                                        A-1911-17T1
                                       5
      On appeal, DiRoma argues the motion judge provided insufficient

reasoning to dismiss his complaint.       He argues Longinetti's statement was

defamatory because he was never convicted of burglary or the possession of

burglary tools. Plaintiff also seeks the assignment of his case to a different judge

in the event of remand because he asserts the motion judge was committed to

his findings.

            To succeed in [a] defamation action, [a plaintiff] must
            prove three essential facts: (1) that defendant[] made a
            false and defamatory statement concerning [the
            plaintiff]; (2) that the statement was communicated to
            another person (and not privileged); and (3) that
            defendant[] acted negligently or with actual malice.
            See DeAngelis v. Hill, 180 N.J. 1, 13 (2004). . . .

            A defamatory statement, generally, is one that subjects
            an individual to contempt or ridicule, Id. at 13-14
            (citing Lawrence v. Bauer Publ'g & Printing Ltd., 89
            N.J. 451, 459 (1982)), one that harms a person's
            reputation by lowering the community's estimation of
            him or by deterring others from wanting to associate or
            deal with him, Ward v. Zelikovsky, 136 N.J. 516, 529
            (1994) (citing Restatement (Second) of Torts § 559
            (1977)).    To determine whether a statement is
            defamatory, a court looks "to the fair and natural
            meaning [to be given to the statement] by reasonable
            persons of ordinary intelligence."         Romaine v.
            Kallinger, 109 N.J. 282, 290 (1988) (quotation
            omitted). A statement falsely attributing criminality to
            an individual is defamatory as a matter of law. Id. at
            291 (citations omitted).

                   ....

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                                         6
            In a defamation action, truth is not only a common-law
            defense, but also "absolutely protected under the First
            Amendment." Ward, 136 N.J. at 530, 643 (citation
            omitted); see also Senna v. Florimont, 196 N.J. 469,
            496 (2008) (noting that under either actual-malice or
            negligence standard, truth is defense of constitutional
            magnitude in defamation case). Truth may be asserted
            as a defense even when a statement is not perfectly
            accurate.

            The law of defamation overlooks minor inaccuracies,
            focusing instead on "substantial truth." Masson v. New
            Yorker Magazine, Inc., 501 U.S. 496, 516 (1991). . . .
            A court must consider a statement as a whole to
            determine the impression it will make on a reader.
            "Minor inaccuracies do not amount to falsity so long as
            'the substance, the gist, the sting, of the libelous charge
            be justified.'" Masson, 501 U.S. at 517 (citations
            omitted)[.]

            [G.D. v. Kenny, 205 N.J. 275, 292-94 (2011).]

      Summary judgment in Longinetti's favor was properly granted because

her statement DiRoma had a history of burglary was substantially true and

therefore not defamatory. DiRoma's criminal history included a first-degree

armed robbery conviction, which is a higher degree crime than burglary. Indeed,

pursuant to N.J.S.A. 2C:18-2(b), burglary is ordinarily a third-degree crime and

cannot exceed a second-degree offense.

      Longinetti's statement was not defamatory because it did not damage

DiRoma's reputation as both Longinetti and the other Parole Board employees


                                                                          A-1911-17T1
                                        7
had knowledge of his criminal history. Moreover, DiRoma was not damaged by

the Board's imposition of special conditions because, regardless of Longinetti's

statement, there was an independent basis for the imposition of special

conditions based on the discovery of the tools and DiRoma's criminal record .

Indeed, DiRoma provided no valid reason for possession of the tools confiscated

from his bedroom. As the Board's decision noted, DiRoma was a grocery store

employee, and was enrolled in college computer science courses. As a result,

the Board stated:

            The Board finds that nothing in the record suggests that
            you have engaged in any type of legitimate "mechanical
            work" while under supervision and that your
            employment is at [a grocery store]. Additionally, the
            Board finds that your chosen course of study while
            attending school was computer science, a field that does
            not require the use of such tools. Therefore, the Board
            finds your contention to be without merit.

      We agree. The Board had a clear basis on which to impose special

conditions, and confiscate DiRoma's tools. N.J.A.C. 10A:71-6.4 states:

            (a) An offender granted parole shall comply with the
            following general conditions of parole:

                    ....

            (19) Submit to a search conducted by a parole officer,
            without a warrant of the offender's . . . place of
            residence . . . within the offender's control at any time
            a parole officer has a reasonable, articulable basis to

                                                                         A-1911-17T1
                                       8
            believe that the search will produce contraband . . . and
            permit the confiscation of any contraband.

Under this regulation, the Board's valid actions did not damage DiRoma.

      Finally, we note DiRoma was previously charged with possession of

burglary tools, and his parole officer subsequently found him in possession of

burglary tools. Contrary to DiRoma's argument, we do not consider the link

between the prior charge and the subsequent discovery of these tools to be so

attenuated. Therefore, summary judgment in Longinetti's favor was appropriate.

      Affirmed.




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