Opinion
DOCKET NO. A-2076-13T3
08-07-2015
ALBERTO SANCHEZ, Plaintiff-Appellant, v. TOWN OF MORRISTOWN, MORRISTOWN POLICE DEPARTMENT, POLICE OFFICER SGT. ROBERT HOLTZ, POLICE OFFICER YEISON DELOSSANTOS, POLICE OFFICER DET. STUART GREER, POLICE OFFICER MICHAEL MOLNER, Defendants-Respondents.
Nusbaum, Stein, Goldstein, Bronstein & Kron, P.A., attorneys for appellant (Robert D. Kobin, on the brief). Kaufman, Semeraro & Leibman, LLP, attorneys for respondents (Mark J. Semeraro and R. Scott Fahrney, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Hayden and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2501-11. Nusbaum, Stein, Goldstein, Bronstein & Kron, P.A., attorneys for appellant (Robert D. Kobin, on the brief). Kaufman, Semeraro & Leibman, LLP, attorneys for respondents (Mark J. Semeraro and R. Scott Fahrney, on the brief). PER CURIAM
Plaintiff appeals from the trial court's grant of summary judgment, dismissing his false arrest and false imprisonment claims based in the common law, the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-2, and federal Civil Rights Act, 42 U.S.C.A. § 1983. Having considered plaintiff's arguments in light of the record and applicable principles of law, we affirm.
I.
Plaintiff's complaint arises out of his arrest in the early morning hours of September 5, 2009 for conspiracy to commit burglary. N.J.S.A. 2C:5-2(a)(2) (conspiracy); and N.J.S.A. 2C:18-2(a)(1) (burglary).
It is undisputed that sometime around 1:00 a.m., Consuelo Bonilla was startled by a Hispanic man in a black t-shirt reaching into her second-floor bedroom through a window that opened onto the fire escape. Bonilla saw the man reach into her purse. She asked him what he was doing. He said he was looking for someone. He put the purse down. Bonilla recognized the intruder — later identified as Renan Castro-Lainez — as one of the three men who resided in the two-bedroom apartment on the third floor. She heard him retreat up the fire escape.
Minutes later, Bonilla discovered that $1590 in rent money, along with some additional personal money, was missing from her purse. Bonilla lived in the four bedroom apartment with her mother, her boyfriend, and two others. She informed her apartment-mates of the intruder. Some searched outside the house and found no one.
Accompanied by a male apartment-mate, Bonilla went upstairs to the third-floor apartment. The apartment consisted of two bedrooms, a bathroom, and a kitchen. The entrance door, which was located on the second floor, was unlocked. She entered the apartment and knocked on the door of the bedroom closest to the entrance, which various witnesses described as the "rear bedroom". Castro-Lainez exited the room. Bonilla demanded that he return her money. He refused. She said she was going to call the police, and Castro-Lainez told her to go ahead. Bonilla testified that she saw "[a]bout two" other men in Castro-Lainez's room; she could recognize one man — whom she identified as from Honduras — but not plaintiff. The door to the second bedroom — the "front bedroom" — remained closed during her interaction with Castro-Lainez.
Bonilla returned to her apartment, and her male apartment-mate called 911 at around 1:56 a.m. Within five minutes, four Morristown police officers — Sergeant Robert Holtz, Detective Stuart Greer, and Police Officers Yeison De Los Santos and Michael Molnar — responded to the scene.
The officers first interviewed Bonilla, who related the details of the burglary. At some point, De Los Santos — the only Spanish speaker among the officers — Greer, and Molnar went upstairs with Bonilla. Holtz climbed up the fire escape to the third floor, entering the apartment through the kitchen window. Bonilla positively identified Castro-Lainez as the person who entered her bedroom. He was arrested and later charged with burglary, and conspiracy to commit burglary.
The parties dispute the events on the third floor involving plaintiff. The officers and Bonilla testified in deposition that cash was found on the floor of plaintiff's room. An officer said it was roughly $800. Defendant possessed slightly under $800 in his pocket. Unable to explain the presence of the money on the floor of his room, plaintiff was arrested.
Plaintiff contends that he did not participate in, or know about the burglary, nor did he assist Castro-Lainez after the fact. He testified in deposition that he recently had taken a room in the house in Morristown to be closer to his job. He moved from Bethlehem, Pennsylvania, where he had shared an apartment with his sister, and often returned to visit. Plaintiff was born in Puerto Rico; spoke English; maintained a bank account; and owned a car for which he took out a loan. In deposition, he stated that the $800, which he kept in the sweat pants that he slept in, was his own money — his weekly pay of less than $600 plus money he had saved from the previous week. He intended to use $500 cash to pay his rent the next day, and use roughly $300 to buy a money order to make a car payment. As for the cash on the floor of his apartment, plaintiff testified he did not see it, and had no knowledge of it. He challenges the other witnesses' claim that it was there at all.
Plaintiff testified that he returned to his room from Bethlehem between 10:30 and 11:00 p.m., and went to sleep between 11:30 and midnight. He awoke to the sound of knocking. He saw De Los Santos searching in the bathroom. De Los Santos asked him if he lived there; plaintiff said he did; and De Los Santos asked him to go to the other room. Plaintiff complied, closing his room door behind him.
Plaintiff stated that he joined Castro-Lainez and Castro-Lainez's roommate, Armando, in the other bedroom, along with four police officers. The other two residents did not speak English. Bonilla was ushered into the room, positively identified Castro-Lainez, and then left. Plaintiff and Armando were then placed in the kitchen. De Los Santos then asked plaintiff if the officers could search his room.
Plaintiff testified that he consented, so long as he could be present. When plaintiff opened his room's door, De Los Santos told him he had to go back, and threatened him with arrest if he did not. Plaintiff testified:
I went back. I had — hadn't quite got into the room when he gave — he took three steps into my room, because I saw him with the flashlight, and he took the same threeAn officer asked to see plaintiff's money from his pocket. He complied. De Los Santos counted it. Plaintiff continued to deny any knowledge of the burglary. He was arrested, and the money was retained.
steps back, and he yelled out to the other officers that the money was underneath there. I told him that I wanted to see that money. He told me no. The four of them told me no. So he came out back out. I never saw the money. They put me in my room, and they left the other two in the other room, and then [De Los Santos] was walking back and forth saying, "Hey, that one said that it was you," and so on. So I was telling him no. That's when I told one of the officers who was not wearing a uniform that the money — that the money that I had was 800 dollars and that it was in my pocket.
Although the officers and Bonilla agree that cash was found on plaintiff's floor, they presented differing accounts of its discovery, and the movements of the four officers, the three residents, and Bonilla in the small third-floor apartment. Bonilla explained that the hallway between the two bedrooms was roughly as long as the conference table at which she was deposed.
Bonilla testified that she accompanied the police when they first entered the third-floor apartment. She said they knocked on the open door of the same room where she previously confronted Castro-Lainez. He and the same men were in the room. Bonilla positively identified Castro-Lainez as the burglar. Police searched him and arrested him.
She testified that police then knocked on the door to the second room, and announced themselves. After five to seven minutes of knocking, plaintiff — whom Bonilla described as "the man from Puerto Rico" — opened the door slightly. Police asked him if he lived there; the plaintiff said he did, and then turned on the light and opened the door. "When they opened the door, [plaintiff] turns on the light and look at the money on the floor." Bonilla testified that "you could see very clear. Even me, I saw a lot of money." Bonilla said it was "in the middle of the room." Bonilla testified, "I ask him if that was his money. He said no." She said that police asked the same question and got the same answer. They asked him where the money came from, and he said he did not know. She observed a non-uniformed officer retrieve the money. She did not see plaintiff empty his pockets. Bonilla testified that police returned $1590 and the additional money to her at the police station later that day.
Molnar presented a different account. In his deposition, he stated that after the police entered the third-floor apartment with Bonilla, they gathered residents in one room. Bonilla identified Castro-Lainez. Afterwards, Molnar recalled with some uncertainty, the officers "sent her back down to her apartment."
Molnar recalled that Holtz told him that he had seen Castro-Lainez coming from the direction of the other bedroom; the door was open; and one could see a pile of money under the bed. According to Molnar, he also saw the money under the bed. Molnar's first contact with plaintiff was in his room. Molnar said plaintiff was fully dressed with shoes on. He appeared wide awake. An officer collected the money and counted it out in plaintiff's presence.
According to Molnar, plaintiff repeatedly denied knowing about the money. Plaintiff said he went to sleep at 11:00 p.m. and no one else had been in his room. He produced money from his own pocket and said, "'This is my money.'" The officers asked if they could count it, and the total of all the cash was roughly what Bonilla had reported stolen. Based on the discovery of the money, and the observation of Castro-Lainez exiting plaintiff's room, police found cause to arrest him.
Holtz testified that as he came through the kitchen, after entering from the window on the fire escape, he "did notice that the other door was open that belonged to [plaintiff], and it was quite evident you can see the cash right on the floor there . . . ." He said it was "[r]ight next to the bed, maybe even under the bed." He described plaintiff's demeanor as nervous. Holtz said he was told that Castro-Lainez was seen coming from plaintiff's room.
Greer testified in deposition that Molnar or Holtz advised him that there was cash on the floor in the bedroom. He walked over and saw cash in front of and underneath the bed. Greer confirmed that plaintiff claimed he was sleeping and knew nothing about the money on the floor. Greer testified that plaintiff was dressed in street clothes, including a white t-shirt and shoes.
However, Greer's report prepared shortly after the arrest presented a different account. He wrote that upon his arrival in the apartment, three men were gathered in the rear bedroom. He stated that Holtz saw Castro-Lainez and plaintiff both walking from plaintiff's bedroom. Castro-Lainez was questioned in his room, while plaintiff and the other man were placed in the kitchen. At that point, plaintiff produced the money in his pocket, and then accompanied the officer back to his room.
De Los Santos testified that he entered the third-floor apartment, accompanied by Molnar, Bonilla, and perhaps others. After another resident opened the door, he saw Castro-Lainez coming from the area of plaintiff's bedroom. Bonilla positively identified him. De Los Santos asked him where he was coming from, and Castro-Lainez answered that he was visiting and drinking with his friend in his room. De Los Santos arrested Castro-Lainez, placed him in handcuffs and patted him down.
De Los Santos did not see plaintiff in the hallway. He approached plaintiff's room with Molnar. De Los Santos saw some money "not under the bed, but kind of like in front — some under and maybe a couple of dollars sticking out." De Los Santos returned to the kitchen.
Plaintiff was incarcerated on $10,000 all cash bail, which he posted after three days in custody. The State administratively dismissed the complaint warrant against plaintiff two months later. The prosecutor explained, "Sanchez's involvement cannot be proven." By that point, Castro-Lainez had pleaded guilty to criminal trespass. The prosecutor explained at Castro-Lainez's sentencing that "there were significant proof issues." He was sentenced to time served of forty-nine days, and transferred to the custody of the Bureau of Immigration and Customs Enforcement.
Plaintiff filed his civil complaint in September 2011. He alleged that the four officers subjected him to false arrest and false imprisonment under common law, the NJCRA and section 1983. After a period of discovery, the court granted the defendant officers' motion for summary judgment. Citing Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000), Judge Rosemary E. Ramsay held that probable cause to arrest is an absolute defense to a claim of false arrest or false imprisonment; moreover, defendants would be immune if they reasonably believed that probable cause existed. Viewing the facts in the light most favorable to plaintiff, the court held there was probable cause, or at least defendants reasonably believed that probable cause existed, to arrest him.
Plaintiff also alleged various counts against the Town of Morristown and the Police Department of Morristown. Plaintiff did not oppose the public entities' motion for summary judgment, which is not before us on appeal.
This appeal followed. Plaintiff argues that the court made impermissible credibility judgments, and failed to resolve disputed facts in his favor. He contends the court erred in finding probable cause existed to arrest him.
II.
We review the trial court's grant of summary judgment de novo applying the standard set forth in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995) and Rule 4:46. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non- moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. Judgment shall be granted if the motion record evidence shows "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).
We must be mindful that not every factual dispute is "genuine." In evaluating a motion for summary judgment to determine the presence of a genuine issue of material fact, the court must consider both the allocation of the burden of persuasion, and the standard of proof. "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
A court must be "guided by the same evidentiary standard of proof — by a preponderance of the evidence or clear and convincing evidence — that would apply at the trial on the merits[.]" Brill, supra, 142 N.J. at 533-34. "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Id. at 540. "[W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986) (emphasis added); see also Liberty Surplus Ins. Co. v. Nowell Amoroso, P.A., 189 N.J. 436, 444-46 (2007).
We must apply this standard in deciding the critical question on appeal: whether defendants had probable cause to arrest plaintiff, or reasonably believed they had probable cause to arrest. The presence of probable cause is the critical issue because, as the trial court correctly observed, proof of probable cause is an absolute defense to a claim of false arrest under section 1983. Wildoner, supra, 162 N.J. at 389; Bayer v. Twp. of Union, 414 N.J. Super. 238, 262 (App. Div. 2010). The same defense applies to plaintiff's common law or NJCRA claim. See, e.g., Morillo v. Monmouth Cnty. Sheriff's Officers, ___ N.J. ___, ___ (2015) (slip op. at 14) (noting that "[F]or purposes of analyzing the qualified-immunity defense" the analysis under both 42 U.S.C.A. § 1983 and the NJCRA "is the same"); Martin v. Unknown U.S. Marshals, 965 F. Supp. 2d 502, 548 (D.N.J. 2013) (interpreting the NJCRA "analogously to [a] 42 U.S.C.[A.] § 1983" claim and noting that the standard for probable cause is the same under both New Jersey and federal law).
"Probable cause exists if at the time of the arrest the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Connor v. Powell, 162 N.J. 397, 409 (internal quotation marks and citation omitted), cert. denied, 530 U.S. 1216, 120 S. Ct. 2220, 147 L. Ed. 2d 251 (2000). Probable cause is "more than mere suspicion but less than legal evidence necessary to convict." Sanducci v. City of Hoboken, 315 N.J. Super. 475, 480 (App. Div. 1998). "In determining whether probable cause existed, a court should consider the totality of the circumstances, including the police officer's common and specialized experience. Bayer, supra, 414 N.J. Super. at 263 (internal quotation marks and citations omitted).
If a plaintiff alleges false arrest, and the officer has charged the plaintiff with more than one offense, it suffices as a defense if probable cause existed to arrest for one offense, but not the other offenses. See Edwards v. City of Philadelphia, 860 F.2d 568, 575 (3d Cir. 1988). Also, "it is irrelevant to the probable cause analysis what crime a suspect is eventually charged with," if the objective facts support probable cause to arrest for any offense. Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005); see also Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994). "The relevant inquiry in determining objective reasonableness is whether a reasonable officer, in view of well-established law and the information the officers possessed, could have believed that probable cause existed to arrest plaintiff." Connor, supra, 162 N.J. at 411.
The Wildoner Court found that "'a law enforcement official can defend a section 1983 claim by establishing either that he or she acted with probable cause, or[,] even if probable cause did not exist, that a reasonable police officer could have believed in its existence.'" Wildoner, supra, 162 N.J. at 386 (quoting Kirk v. City of Newark, 109 N.J. 173, 184 (1988)); see also, Morillo, supra, slip op. at 18; Bayer, supra, 414 N.J. Super. at 262. The Court also recognized the use of the summary judgment procedure is favored so as to give meaning to the grant of qualified immunity:
We also recognized that the Supreme Court has interpreted Section 1983 "to limit the rights of plaintiffs and to encourage disposition of the actions as a matter of law, at least when these actions arise out of an alleged unlawful arrest, search, or seizure by a law enforcement officer." [Kirk, supra, 109 N.J. at 179]. QualifiedSee also Morillo, supra, slip op. at 18 ("Procedurally, the issue of qualified immunity is one that ordinarily should be decided well before trial, and a summary judgment motion is an appropriate vehicle for deciding that threshold question of immunity when raised.").
immunity "is an immunity from suit rather than a mere defense to liability" that is effectively lost if the case is allowed to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411, 425 (1985); see also Kirk, supra, 109 N.J. at 182 (holding that in the future we expect that similar cases will be determined by motions for summary judgment). For that reason, a defendant's entitlement to qualified immunity is a question of law to be decided early in the proceedings as possible, preferably on a properly supported motion for summary judgment or dismissal.
[Wildoner, supra, 162 N.J. at 386-87.]
However, while the court determines whether the probable cause existed or whether an officer would reasonably have believed it existed, the court does not decide disputed issues of fact relevant to that decision.
[T]he judge must decide whether probable cause existed, and if not, whether the executive official could reasonably have believed in its existence. Where historical or foundational facts that are critical to those determinations are disputed, the jury should decide those disputed facts on special interrogatories. The jury's role should be restricted to the who-what-when-where-why type of historical fact issues. Based on the jury's factual findings, the
trial judge must then make the legal determination of whether qualified immunity exists.
[Schneider v. Simonini, 163 N.J. 336, 359 (2000) (internal quotation marks and citation omitted), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001).]
Thus, the issue presented is whether there is a genuine issue of material fact regarding the presence of probable cause, or the reasonable belief that probable cause existed. Applying the foregoing standards, we are persuaded no genuine issue existed.
Plaintiff does not dispute the essential fact that Bonilla was the victim of a burglary by a man on the fire escape; and Bonilla recognized, and later identified that man as plaintiff's apartment-mate, Castro-Lainez. The critical issue of fact is whether roughly $800 was found on the floor of plaintiff's room. If a jury were to find that fact, then under the totality of the remaining circumstances, there is no genuine question that probable cause existed to arrest plaintiff. There was no dispute that plaintiff possessed almost $800 in his pants in the early morning hours. The two sums totaled the amount that was, without dispute, taken from Bonilla.
Consistent with Wright, we need not address whether these facts supported a finding of probable cause that plaintiff committed the crime of conspiracy. See Wright, supra, 409 F.3d at 602. The facts just stated supported a finding of probable cause that plaintiff committed the crime of theft by receiving stolen property. N.J.S.A. 2C:20-7. A person commits that crime if "he knowingly receives . . . property of another knowing that it has been stolen, or believing that it is probably stolen." Ibid. Theft of over $500 is a third-degree offense. N.J.S.A. 2C:20-2(b)(2)(a).
It also would be of no moment that plaintiff could present an innocent explanation for the presence of the money on the floor, for example, that Castro-Lainez stashed it there, while plaintiff slept, in the moments after the initial confrontation with Bonilla. The fact that innocent explanations may be proffered for a suspect's conduct does not necessarily vitiate probable cause. Illinois v. Gates, 462 U.S. 213, 244 n.13, 103 S. Ct. 2317, 2335 n.13, 76 L. Ed. 2d 527, 552 n.13 (1983) (stating "[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts"); United States v. Funches, 327 F.3d 582, 587 (7th Cir. 2003) ("Of course, the mere existence of innocent explanations does not necessarily negate probable cause."); cf. State v. Arthur, 149 N.J. 1, 11 (1997) (stating "simply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt").
A court must determine whether the evidence of criminal behavior is sufficient to create probable cause, notwithstanding possible innocent explanations. Determination of the issue requires a weighing of the totality of the circumstances. See State v. Pineiro, 181 N.J. 13, 28-29 (2004) (applying the totality of the circumstance test in the probable cause context). In this case, the police officers could reasonably have concluded that even if it was conceivable that Castro-Lainez put the money in plaintiff's room without his knowledge, it was more likely that plaintiff was aware of it. And, if plaintiff was aware, then there would have been probable cause to arrest — especially if one credits the testimony that plaintiff was dressed in street clothes, and Castro-Lainez was seen walking from plaintiff's room and admitted that he had just visited with plaintiff.
Thus, to succeed in establishing the absence of probable cause, plaintiff must persuade a jury that the four police officers and Bonilla all falsely asserted that over $800 was found on the floor. Plaintiff relies on his claim that the money was not present, although he testified at deposition that he was not able to look into the room when De Los Santos entered. He also points to the inconsistencies in the various accounts of the officers and Bonilla. He argues that, extending him all favorable inferences, a jury might disregard the defendants' accounts because of those inconsistencies.
Although there are numerous inconsistencies in the accounts of the four officers and Bonilla, these witnesses agreed on several salient facts: roughly half the money taken from Bonilla's purse was found on the floor of plaintiff's room; all the other witnesses stated they saw the money on the floor; the money on the floor, plus the money plaintiff had in his pocket, equaled the total amount taken. In his deposition, plaintiff stated that he was not permitted to enter his room when police saw the money; so he could not say it was not there, although he claimed he knew nothing about it. There was also evidence that Castro-Lainez was coming from plaintiff's room when the police arrived. De Los Santos claimed he saw Castro-Lainez coming from plaintiff's room, and explained that he was visiting his friend. Greer and Molnar testified that Holtz saw Castro-Lainez come from plaintiff's room; but Holtz testified that he learned that from someone else.
We are unpersuaded that a rational factfinder could conclude by a preponderance of the evidence that the four officers and Bonilla lied or were grossly mistaken about the presence of the money on the floor. We reach that conclusion without usurping the fact-finder's role to assess the competing credibility of witnesses. "That the trier of fact makes determinations as to credibility does not require a court to turn a blind eye to the weight of the evidence; the opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Triffin v. Am. Int'l Grp., Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (internal quotation marks and citation omitted).
We recognize that personal animus is not an essential element of a claim that police fabricated evidence, notwithstanding that defendants place great weight on the lack of evidence of personal animus toward plaintiff. Police may be motivated simply by a desire to incriminate a person they strongly believe is guilty; or by a desire to persuade a reluctant witness to testify. See Halsey v. Pfeiffer, 750 F.3d 273, 288-96 (3d Cir. 2014) (discussing fabrication of evidence). --------
Plaintiff faces an unbridgeable logical gap between the inconsistencies in account, and an assertion that the discovery of the cash on the floor was fabricated. The evidence was "one-sided" in favor of a finding that the cash of over $800 existed. Plaintiff does not dispute that the cash allegedly found on the floor was returned that morning to Bonilla, along with the money from plaintiff's pocket. Plaintiff provides no plausible alternative explanation for the source of the cash.
In sum, we conclude that plaintiff has not presented a genuine issue of material fact regarding the presence of probable cause to arrest him. As a result, his claims were properly dismissed and summary judgment granted to defendants.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION