Tuesday, August 5, 2014

Ocean County judge to review dog bite video

Update: 01/22/17: Ocean County Prosecutor files its appeal brief with the New Jersey Supreme Court.
Update: 06/30/16: Appellate Division affirms trial court's ruling in a 2-1 decision

Update: 10/02/14: Court orders release of video.  Click here.  Prosecutor has, however, appealed the ruling.
Update: 09/15/14:  Oral argument is scheduled for Thursday, September 18, 2014 at  2 p.m. before Judge Grasso in Toms River.  Supplement briefs submitted by the parties are on-line here. The Prosecutor has indicated that OCPO Detective John Halliday will testify at the hearing.
I have previously blogged about my Open Public Records Act (OPRA) case against the Ocean County Prosecutor on June 24, 2014 and July 2, 2014. Today, I report the July 31, 2014 decision that Ocean County Assignment Judge handed down in Paff v. Ocean County Prosecutor's Office, Docket No. OCN-L-1645-14, which I've placed on-line here.

Briefly, this case involves disclosure of a police dash-cam video of a police officer allegedly siccing a police dog on a member of the public. The Tuckerton Police officer in control of the dog, Justin Cherry, has been charged with official misconduct and aggravated assault as a result of the incident.

Judge Grasso scolded the Prosecutor's office for not being fully candid in its response to my request.  In his opinion, the judge wrote:
OPRA contemplates a process whereby the custodian communicates with the requestor so that the requestor can intelligently decide whether to further pursue his or her documents request. Here, the Prosecutor’s Office waited until the return date to advise Paff that the video in question was not a surveillance video, as Paff assumed it was in his submissions, but instead a police dash cam video. It was the Prosecutor’s Office’s responsibility to apprise Paff of information that might help him decide whether to litigate the matter or to abandon it well in advance of the return date. In light of the Prosecutor’s Office’s failure to carry its statutory burden, the court finds that the Prosecutor’s Office improperly denied Paff access to the video.
The judge went on to rule that I am the prevailing party, entitling my attorney, Richard Gutman of Montclair, to be paid his attorney's fees by the Prosecutor's office.

Still, Judge Grasso elected to give the prosecutor another chance to prove that the video recording is exempt as a criminal investigatory record.  He has continued the case for thirty days to allow both lawyers to "submit supplemental briefs, certifications, and evidence on whether the police dash cam video constitutes a criminal investigatory record under N.J.S.A. 47:1A-1.1’s two- pronged analysis."  Judge Grasso also ordered the prosecutor to supply him with a copy of the video for the court's in camera review.

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