In the Matter of John Restrepo, Department of Corrections ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2951-14T4
APPROVED FOR PUBLICATION
IN THE MATTER OF JOHN RESTREPO,
DEPARTMENT OF CORRECTIONS. March 27, 2017
____________________________________ APPELLATE DIVISION
Submitted December 13, 2016- Decided March 27, 2017
Before Judges Fisher, Leone, and Vernoia.
On appeal from the Civil Service Commission,
CSC Docket No. 2014-2092.
Sciarra & Catrambone, attorneys for
appellant John Restrepo (Charles J. Sciarra,
of counsel; Christopher A. Gray, on the
briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey
Department of Corrections (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Christopher M. Kurek, Deputy Attorney
General, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey Civil
Service Commission (Todd A. Wigder, Deputy
Attorney General, on the statement in lieu
of brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Appellant John Restrepo appeals the February 4, 2015
decision of the Civil Service Commission (Commission)
terminating his employment with the Department of Corrections
(DOC). His appeal raises the issue of whether the timeliness of
Commission decisions in disciplinary cases involving law
enforcement officers and firefighters is governed by the recent
legislation addressing such cases, L. 2009, c.16 (2009 Act), or
by the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to
-15.
We hold that the 2009 Act governs. Under the 2009 Act, the
Commission's decision was timely. Moreover, the decision was
not arbitrary, capricious, or unreasonable. Accordingly, we
affirm.
I.
We derive the following facts from the findings and
evidence before the Administrative Law Judge (ALJ) and the
Commission.
Restrepo worked for the DOC for approximately six years.
He was commended for "a job well done in dealing with the
terrible impact of Hurricane Sandy" in Fall 2012 and for finding
two shanks during a cell search in June 2012. Restrepo's record
was free from disciplinary infractions.
On December 22, 2013, Restrepo was a senior corrections
officer (SCO) at Northern State Prison (Prison). He was
assigned to the Prison's Housing Unit F-300, East Side (F3E).
F3E consists of a housing wing comprised of two floors and forty
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prison cells, with two prisoners assigned to each cell. F3E
also encompasses a "sally port," a secure entryway into F3E
which is monitored by the officer on duty in F3E. The Local
Control Point (LCP) is located on the other side of the "sally
port." In the LCP, on-duty corrections officers can monitor who
enters the East Side and West Side wings and control the opening
and closing of the cell doors in those wings. A restroom is
located in the LCP, and this is where on-duty officers may use
the bathroom. The LCP is separate from F3E and therefore not
part of Restrepo's post in F3E.
Two separate physical altercations between inmates broke
out in F3E while Restrepo was on duty on December 22.
Lieutenant Andre Fleming, Restrepo's supervisor, investigated
the altercations and testified to the following.
The first physical altercation occurred between 6:28 a.m.
and 7:36 a.m., when several inmates gained access to another
inmate's cell. Restrepo was not at his post in F3E when this
altercation arose.
The second altercation occurred around 12:18 p.m., when
some of the inmates involved in the first altercation began
fighting. Restrepo was at his post for this altercation and was
able to break up and report the fight.
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When Lieutenant Fleming inquired into Restrepo's earlier
absence, Restrepo submitted a statement that he was sick and
using the restroom in the LCP. Restrepo also submitted a
doctor's note dated December 21, 2013, saying he visited a
doctor and was treated for a stomach virus on that date.
Lieutenant Fleming reviewed a security video from F3E. The
video showed Restrepo was at his post and performed his early
morning inmate count. Restrepo left his post in F3E at 6:28
a.m. and returned at 7:36 a.m., according to the timestamp on
the video. Thus, Restrepo was absent from his post for sixty-
eight minutes. He did not call for relief during this period.
Fleming testified that for an officer to properly obtain relief
from his post, the officer should notify his supervisor to
request the relief and the supervisor will send someone to
temporarily relieve the officer from his post.
Security Major Michael Chrone testified the Prison Custody
Post Orders (Post Orders) and the DOC's Law Enforcement
Personnel Rules & Regulations (DOC Rules) explicitly provide
instructions for what an officer needs to do before leaving his
post. The Post Orders provide: "Housing Unit officers are not
to leave their assigned post unless properly relieved by another
officer or permission is granted from the Shift Commander." The
DOC Rules provide: "Except as predetermined by emergency
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response procedures, an officer assigned to a post shall not
leave that post without permission of the supervisor, or until
properly relieved."
Major Chrone added, through his twenty-one-year career in
corrections, "[he] was always instructed . . . to call for []
relief . . . . either via phone or via radio for your sergeant
to get you relieved to the use the restroom, meal break, so on
and so forth." Restrepo was equipped with a radio, on which he
could have called a supervisor and requested relief by another
officer so he could use the restroom.
The DOC issued a preliminary Notice of Disciplinary Action
against Restrepo charging him with neglect of duty, N.J.A.C.
4A:2-2.3(a)(7), and other violations. The preliminary notice
advised Restrepo removal was a possible punishment for his
charged offenses. After a hearing, a final Notice of
Disciplinary Action was issued, removing Restrepo from his
position effective February 21, 2014.
Restrepo simultaneously appealed the decision to the
Commission and the Office of Administrative Law (OAL) pursuant
to N.J.S.A. 40A:14-202(d). After a hearing, the ALJ issued his
initial decision on November 25, 2014. He made the following
factual findings:
SCO Restrepo admitted to leaving his post in
the F3E unit for a period of 68 minutes on
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December 22, 2013 to use the bathroom in the
LCP. Both the Custody Post Orders and [DOC
Rules] provide that any time an officer
needs to leave his assigned post, it is
necessary to contact the officer's
supervisor to request permission to be
properly relieved. As a result, during his
absence, three inmates entered the cell of
another inmate and began to fight. This
fight was not reported, and was not
discovered until Lt. Fleming conducted his
investigation and reviewed the video
surveillance of the F3E unit for December
22, 2013. Later that same day, the same
exact inmates were involved in a second
fight, which was seen and reported by SCO
Restrepo. The second fight may have been
prevented had SCO Restrepo been on his
assigned post and either witnessed the first
altercation or his presence may have
prevented the [first] fight from occurring
in the first place. By failing to contact a
supervisor prior to leaving his post, SCO
Restrepo failed and neglected his duties to
protect the inmates whom he was responsible
to oversee. This failure resulted in
inmates fighting, which created a danger to
all of the inmates in the F3E unit. SCO
Restrepo violated [the Post] Orders and the
[DOC Rules] when he went to the bathroom
without first obtaining permission or being
properly relieved.
The ALJ found Restrepo's argument that he was allowed to be
in the bathroom for more than an hour was "at best pretextual
and in the context of a prison environment simply unconvincing"
and "casts doubt with respect to [his] ability to exercise good
judgment." The ALJ found Restrepo neglected his duty in
violation of N.J.A.C. 4A:2-2.3(a)(7).
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The ALJ also found Restrepo's negligent dereliction was
serious. Nonetheless, the ALJ recommended the Commission modify
the discipline to a six-month suspension because removal was too
harsh of a punishment when considering "the absence of any prior
discipline."
On February 4, 2015, the Commission issued a four-page
final administrative action. The Commission adopted the factual
findings of the ALJ, agreed with the ALJ regarding the charges,
but disagreed with the ALJ's modification of the penalty,
finding Restrepo's misconduct was "egregious" and "created an
extreme safety issue." Restrepo appeals.
II.
"Appellate courts have a 'limited role' in the review of
[Commission] decisions." In re Stallworth, 208 N.J. 182, 194
(2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579
(1980)). "An appellate court affords a 'strong presumption of
reasonableness' to an administrative agency's exercise of its
statutorily delegated responsibilities." Lavezzi v. State, 219
N.J. 163, 171 (2014) (citation omitted). "In order to reverse
an agency's judgment, an appellate court must find the agency's
decision to be 'arbitrary, capricious, or unreasonable, or []
not supported by substantial credible evidence in the record as
a whole.'" Stallworth, supra, 208 N.J. at 194 (quoting Henry,
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supra, 81 N.J. at 579-80) (alteration in original). We must hew
to that standard of review.
III.
Restrepo first argues the decision of the Commission was
untimely, and therefore the decision of the ALJ recommending a
six-month suspension should be deemed final under N.J.S.A.
52:14B-10 of the APA or N.J.S.A. 40A:14-204 of the 2009 Act. We
must first determine which of those statutory schemes applies
here.
Cases involving the Commission have long been considered
under the APA. The APA provides that, in contested cases, after
the ALJ issues a recommended report and decision, the head of
the agency is required to "adopt, reject or modify" the ALJ's
recommendations "no later than 45 days after receipt of such
recommendations." N.J.S.A. 52:14B-10(c). "Unless the head of
the agency modifies or rejects the report within [the forty-
five-day] period, the decision of the [ALJ] shall be deemed
adopted[.]" Ibid. However, "for good cause shown, upon
certification by the [OAL] director and the agency head, the
time limits herein may be subject to a single extension of not
more than 45 days. Any additional extension of time shall be
subject to, and contingent upon, the unanimous agreement of the
parties." Ibid.; see N.J.A.C. 1:1-18.8(e).
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In 2009, our Legislature enacted the 2009 Act, entitled "An
Act Concerning the Suspensions of Certain Law Enforcement
Officers and Firefighters," largely codified at N.J.S.A. 40A:14-
200 to -212. It defines "Law enforcement officer" and "Law
enforcement agency" to include those statutorily empowered to
act for the "detention, or rehabilitation of persons violating
the criminal laws of this State." N.J.S.A. 40A:14-200. The
parties do not dispute the 2009 Act applies to DOC officers.
The 2009 Act provides that an officer appealing imposition of
discipline "shall file his appeal simultaneously with [the OAL]
and [the Commission]" to facilitate the timely rendering of a
final determination. N.J.S.A. 40A:14-202(d). "Within 45 days
of receiving [the ALJ's] decision, the commission shall complete
its review and issue its final determination." N.J.S.A. 40A:14-
204. "[H]owever, the commission, at its discretion, may extend
its review period by no more than an additional 15 days." Ibid.
The Commission may obtain a second extension "for good cause" if
it gives "written notice to the Chief Administrative Law Judge"
and the parties and the Chief ALJ decides "the review period
shall be extended." Ibid. If the Commission fails to issue its
final decision within the deadline or extended deadline, "the
recommended decision of the administrative law judge shall be
deemed to be final." Ibid.; see N.J.A.C. 4A:2-2.13(f).
9 A-2951-14T4
Thus, the APA and the 2009 Act require conflicting
procedures to request an extension. Under the APA, a single
forty-five-day extension may be awarded only if there is good
cause shown, and any subsequent extensions may only be granted
on unanimous consent of the parties. N.J.S.A. 52:14B-10(c). By
contrast, the 2009 Act grants the Commission discretion to give
itself one fifteen-day extension, and any subsequent extensions
may be granted by the Chief ALJ upon a showing of good cause.
N.J.S.A. 40A:14-204.
"It is a well established precept of statutory construction
that when two statutes conflict, the more specific controls over
the more general." N.J. Transit Corp. v. Borough of Somerville,
139 N.J. 582, 591 (1995); accord Bergen Cty. PBA Local 134 v.
Donovan, 436 N.J. Super. 187, 199 (App. Div. 2014); see Williams
v. Am. Auto Logistics, 226 N.J. 117, 126 (2016) (following "the
oft-stated principle of statutory construction that a specific
statutory declaration prevails over a more general one"). The
APA's provisions govern administrative procedures generally. By
contrast, the 2009 Act specifically governs disciplinary
proceedings when the review involves a law enforcement officer
or a firefighter. Thus, in a disciplinary proceeding involving
a law enforcement officer or firefighter as defined in the 2009
Act, the specific procedures in the 2009 Act govern over
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inconsistent procedures generally applicable under the APA. See
N.J. Transit, supra, 139 N.J. at 591; see also NYT Cable TV v.
Homestead at Mansfield, 214 N.J. Super. 148, 162 (App. Div.
1986), aff’d, 111 N.J. 21 (1988).
IV.
The Commission did not make its final determination within
the forty-five-day timeline set forth in the APA and the 2009
Act. The Commission requested and received two extensions and
issued its decision prior to the expiration of the second
extension. Because the Commission's second extension was not
based on "the unanimous agreement of the parties," it would not
have been proper under N.J.S.A. 52:14B-10(c), and the
Commission's decision would have been untimely under the APA.
However, the Commission's second extension was proper, and its
decision was timely, under the 2009 Act.
The ALJ issued his initial decision on November 25, 2014,
and the Commission received it that day. Thus, the initial
deadline for the Commission to issue its final determination was
January 9, 2015. The Commission considered the ALJ's
recommendation in a December 17, 2014 meeting. On December 26,
2014, the Commission issued a one-page letter stating that it
did not adopt the ALJ's recommendation to modify the penalty to
a six-month suspension and that it upheld Restrepo's removal.
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The letter added: "A decision in this matter will be issued in
the near future."
Meanwhile, in a letter dated December 17, 2014, the
Commission issued an "Order of Extension" for a fifteen-day
extension, until January 24, 2015, to issue its final
determination. The order stated there was "good cause" for an
extension because additional time was required "to comply with
certain aspects of [Capone v. N.J. Racing Comm'n, 358 N.J.
Super. 339 (App. Div. 2003).]"1 The order was countersigned by
Laura Sanders, the Acting OAL Director and Chief ALJ, on
December 19, 2014.2
On January 22, 2015, the Commission issued and served a
letter entitled "Order of Extension . . . Second Request,"
1 The Commission apparently believed the extension was governed
by the APA. The Commission cited N.J.S.A. 52:14B-10(c), which
requires "good cause" and "certification by the [OAL] director"
for a first extension. N.J.S.A. 52:14B-10(c).
2 On the Commission's December 17 letter, Restrepo's counsel is
listed as a "CC." The letter also stated there was "unanimous
agreement of the parties." However, Restrepo's counsel argues
he did not receive or consent to the letter. Indeed, the space
for the "Date agency mailed executed order to parties" was left
blank. Service of extension requests and extension orders is
required under both the APA and the 2009 Act. See N.J.A.C. 1:1-
18.8(e); N.J.A.C. 4A:2-2.13(f). Any failure to make service,
and any misstatement of consent, was erroneous. Nonetheless,
the error was harmless and was not "clearly capable of producing
an unjust result," R. 2:10-2, because Restrepo's consent was not
required for a first extension under the APA or the 2009 Act and
because the first extension was not an abuse of discretion under
the 2009 Act.
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requesting a second extension to February 8, 2015, to issue its
final determination. The request explained there was "good
cause" because the Commission's meetings for January 7 and
January 21, 2015, were cancelled due to lack of a quorum, so a
final decision could not be issued.3 On February 3, 2015, the
Chief ALJ issued and served a letter granting the extension.
She found "the quorum problem in January was an unforeseen
circumstance." The Commission issued its final decision on
February 4, 2015, within the second extension period.
Restrepo argues the Commission's determination at its
December 17, 2014 meeting, evidenced in its December 26, 2014
letter, was not the final administrative determination required
by N.J.S.A. 40A:14-204. We agree.
The Commission's December 26 determination contained no
factual findings or conclusions of law and instead merely stated
it rejected the ALJ's recommendation on the penalty. We have
repeatedly warned administrative agencies that
3 The Commission again cited the APA's N.J.S.A. 52:14B-10(c),
which requires "the unanimous agreement of the parties" for a
second extension. The Commission claimed "consent of the
parties is not necessary for this extension request" because
"[a]t its meeting on December 17, 2014, the [Commission] made a
final determination within the required 45 day time frame" and
gave notice of that determination on December 26, 2014. As we
explain in text, the Commission's actions in December 2014 were
inadequate to constitute a final determination. Thus, the
second extension required but lacked the unanimous consent
required under the APA.
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simply notifying a party of its rejection of
an ALJ's initial decision, followed many
months later by issuance of a final decision
containing findings of fact and conclusions
of law, violates N.J.S.A. 52:14B-10(c) and
(d) and could result in the ALJ's initial
decision being "transformed into the
agency's final decision."
[Capone, supra, 358 N.J. Super. at 350
(quoting N.J. Racing Comm'n v. Silverman,
303 N.J. Super. 293, 304 (App. Div. 1997)).]
Nonetheless, "[t]he lack of findings of fact and
conclusions of law in an agency's [summary letter preceding its
final decision] does not automatically require the ALJ's initial
decision to be 'deemed approved.'" Id. at 341. The Commission
recognized its December 26 letter was inadequate and granted
itself a timely initial fifteen-day extension to comply with
Capone. We cannot say this initial extension was an abuse of
discretion.
Furthermore, we have indicated an agency which has issued
an inadequate summary order "should have applied to the Office
of Administrative Law for an additional extension . . . until
the issuance of its final decision." Cavalieri v. Bd. of Trs.
of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 540 (App. Div.
2004); see Penpac, Inc. v. Passaic Cty. Utils. Auth., 367 N.J.
Super. 487, 499 (App. Div.), certif. denied, 180 N.J. 457
(2004). Here, the Commission sought and received from the Chief
14 A-2951-14T4
ALJ a second fifteen-day extension and filed its final
determination within that extension period.
The Commission's lack of quorum constituted good cause for
an extension to render a final determination. Three of the
Commission's five authorized members "shall constitute a
quorum." N.J.S.A. 11A:2-3. A quorum is necessary for the
Commission to render a disciplinary decision. See King v. N.J.
Racing Comm'n, 103 N.J. 412, 418 (1986) (setting aside the
Racing Commission's rejection of the ALJ's recommendation due to
the lack of a "legal quorum"). In King, our Supreme Court held
that "the deemed-approved provision of N.J.S.A. 52:14B-10(c)
should not be invoked" where the Racing Commission tried to act
but lacked a quorum and that "the agency should be permitted to
take remedial steps to cure the deficiency and to issue a
decision." Id. at 421, 423. Therefore, the deemed-approved
provision should not be applied where the agency, rather than
making a decision without a quorum, sought a brief extension to
cure the quorum deficiency and issued a decision within that
extension.
Our Supreme Court in King recognized "a statutory
'automatic approval mechanism should be applied with caution.'"
Id. at 422. The Court "require[s] an agency display of 'bad
faith,' 'inexcusable negligence,' 'gross indifference,' or a
15 A-2951-14T4
complete failure to respond to an ALJ's Initial Decision within
the forty-five day period before that 'decision should be
transformed into the agency's final decision.'" Matturri v. Bd.
of Trs. of the Judicial Ret. Sys., 173 N.J. 368, 379-80 (2002)
(quoting King, supra, 103 N.J. at 421); see also Klusaritz v.
Cape May County, 387 N.J. Super. 305, 314 (App. Div. 2006),
certif. denied, 191 N.J. 318 (2007). Thus, the Chief ALJ
properly found "[t]his is not an instance of agency inattention,
or failure to pursue diligently its obligation to make its
decisions."
Restrepo argues the Commission's final decision was
untimely due to "bad faith, inexcusable negligence, or gross
indifference," and, therefore, the ALJ's recommendation of a
six-month suspension should be deemed the final administrative
determination. King, supra, 103 N.J. at 421. He argues a "lack
of quorum" is not sufficient to show good cause for an
extension. We disagree.
Restrepo alleges that the Commission has been two
commissioners short since 2011, that it could not obtain a
quorum in January 2014 either, and that it would be unfair if it
was unable to obtain a full quorum "if one of these members is
on vacation." However, Restrepo cites no proof for the serious
allegation that the Commission intentionally cancelled its
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January meetings so its members could vacation. In any event,
the Commission's issuance of its December 26 letter, and its
obtaining of a quorum and issuance of Restrepo's final
determination by February 4, belie Restrepo's claim of bad
faith, inexcusable negligence, gross indifference, or a complete
failure to respond in the initial forty-five-day period. See
Cavalieri, supra, 368 N.J. Super. at 539-40 (upholding the
Pension Board's untimely ruling because it "signaled its
intentions to reject the initial decision . . . and issued its
final decision reasonably promptly thereafter"); cf. Silverman,
supra, 303 N.J. Super. at 303 (admonishing the Racing Commission
because it "delayed nine months until it eventually issued its
decision" without seeking any extensions). Accordingly, the
extensions were proper, and the Commission's decision was
timely.
V.
Restrepo next argues the decision to uphold his removal was
arbitrary and capricious because the Commission did not follow
the principles of progressive discipline.
Courts "'accord substantial deference to an agency head's
choice of remedy or sanction.'" In re Herrmann, 192 N.J. 19,
34-35 (2007) (citations omitted). "A reviewing court should
alter a sanction imposed by an administrative agency only 'when
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necessary to bring the agency's action into conformity with its
delegated authority. The Court has no power to act
independently as an administrative tribunal or to substitute its
judgment for that of the agency.'" Id. at 28 (citation
omitted).
Progressive discipline was first endorsed by our Supreme
Court in West New York v. Bock, 38 N.J. 500, 523-24 (1962).
Progressive discipline has been used in two ways. "First,
principles of progressive discipline can support the imposition
of a more severe penalty for a public employee who engages in
habitual misconduct." Herrmann, supra, 192 N.J. at 30. "The
second use to which the principle of progressive discipline has
been put is to mitigate the penalty for a current offense"
where, as here, an employee has little or no record of
misconduct. Id. at 32.
However, neither this court nor our Supreme Court "regard[]
the theory of progressive discipline as a fixed and immutable
rule to be followed without question." Carter, supra, 191 N.J.
at 484. In particular, "progressive discipline is not a
necessary consideration when reviewing an agency head's choice
of penalty when the misconduct is severe, when it is unbecoming
to the employee's position or renders the employee unsuitable
for continuation in the position." Herrmann, supra, 192 N.J. at
18 A-2951-14T4
33. Moreover, "[i]n matters involving discipline of police and
corrections officers, public safety concerns may also bear upon
the propriety of the dismissal sanction." Carter, supra, 191
N.J. at 485.
Here, Restrepo was away from his post for approximately
sixty-eight minutes and notified no one at the Prison he would
be gone or where he was going. He did so in direct violation of
the Post Orders and the DOC Rules, which forbid an officer from
leaving his post without calling for relief. Further, Restrepo
left an entire housing wing containing scores of prisoners
unobserved for over an hour, and the prisoners took advantage of
his absence to start a fight that engendered another fight.
Correctional facilities, if not run properly, "have a capacity
to become 'tinderboxes.'" Bowden v. Bayside State Prison, 268
N.J. Super. 301, 306 (App. Div. 1993), certif. denied, 135 N.J.
469 (1994). That potential was certainly displayed here.
Restrepo's misconduct put lives in danger and could have been
easily avoided by making a radio call to request relief from
another officer. The DOC determined Restrepo's actions to be so
egregious and severe that they warranted removal. "The
appraisal of the seriousness of [the officer's] offense and
degree to which such offenses subvert discipline . . . are
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matters peculiarly within the expertise of the corrections
officials." Ibid.
The Commission agreed with the DOC that Restrepo's conduct
was egregious, finding his absence for "over an hour created an
extreme safety issue for other inmates and for correctional
personnel."
The Commission has de novo review over public employee
disciplinary matters. Henry, supra, 81 N.J. at 579; see
N.J.S.A. 11A:2-19. Courts on the other hand "have a limited
role in reviewing a decision of an administrative agency" and
will overturn the decision only if it is "arbitrary, capricious
or unreasonable or it is not supported by substantial credible
evidence in the record as a whole." Henry, supra, 81 N.J. at
579-80 (applying that standard to the Commission's decision
regarding the penalty for a corrections officer who fell
asleep). Ultimately, the "question for the courts is 'whether
such punishment is "so disproportionate to the offense, in the
light of all the circumstances, as to be shocking to one's sense
of fairness."'" Carter, supra, 191 N.J. at 484 (citation
omitted). Here, the Commission's decision was supported by
credible evidence and was not arbitrary, capricious, or
unreasonable. Removal does not shock our sense of fairness.
20 A-2951-14T4
Restrepo cites DOC Human Resources Bulletin 84-17, but it
states removal is a potential disciplinary measure for a first
offense for leaving the assigned work area, or other neglect of
duty, if it creates a danger to persons or property. Therefore,
removal, though not automatic, is warranted where the conduct is
egregious, as it is here.
Restrepo's remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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