Tuckerton Police Cpl. Justin Cherry’s Disciplinary Hearing Held

By PAT JOHNSON | Aug 28, 2019
Photo by: Pat Johnson Tuckerton Police Cpl. Justine Cherry with his wife Michele outside the borough hall on day two of his disciplinary hearing.

Tuckerton — The disciplinary hearing for Tuckerton Police Cpl. Justin Cherry, suspended without pay since April 2014, began on Wednesday, Aug. 21, and continued Friday, Aug. 23, in front of hearing officer Bonnie R. Peterson. Tuckerton Police Chief Brian Olsen brought 15 charges of official misconduct against Cherry stemming from a Jan. 29, 2014, incident involving a pursuit of Wendy Tucker from Tuckerton through three other police jurisdictions to end in Barnegat, where he released his K-9 officer, Gunner, on the suspect.

Cherry is still a police officer in Tuckerton and wants his suspension lifted and back pay that may have accumulated into an estimated $400,000. He was exonerated of all charges on May 2 of this year, when the Ocean County Prosecutor’s Office failed to make its criminal case of assault stemming from the incident. Cherry’s attorney, Tracy L. Riley, of Riley and Riley, Marlton, was now back in municipal court with her client to defend him against the disciplinary charges that could lead to his dismissal from the force.

Although the prosecutor’s case in Superior Court dismissed the disciplinary charges, it did so without prejudice, which means Cherry could be held accountable in the future.

Tuckerton hired Cherry in October 2005.

Tuckerton’s attorney, Ian Goldman of LSPG Legal Group in Jackson, said that during the discovery process of the trial in Superior Court, new facts came to light, and they form the basis of the current disciplinary charges. Goldman started Wednesday morning’s testimony by calling Police Chief Olsen as a witness.

Olsen was a Tuckerton detective when the incident with Cherry occurred; the Tuckerton police chief at that time was Michael Caputo, who has since retired. Olsen was hired as chief of police on Aug. 24, 2017.

The 15 disciplinary charges brought by Chief Olsen fall into three categories of violation of Tuckerton’s police procedures: policies regarding pursuit, the K-9 policy, and rules and regulations concerning truthfulness.

Olsen was asked to outline his procedure for arriving at the 15 charges.

His investigation began on May 20, 2019, when the Ocean County Prosecutor’s Office notified him that the criminal aspect of the case was over and that if Tuckerton wanted to pursue disciplinary charges, he could make an appointment to look over and copy information from the prosecutor’s discovery process and investigation.

Olsen did obtain information, such as Cherry’s incident report, Cherry’s pursuit report and K-9 report – all required by law. He also copied Barnegat police Sgt. Richard Cassidy and patrol officer Richard Carr’s incident reports, Stafford Officer Keith Oler’s reports and the Ocean County prosecutor’s internal affairs interviews with the Barnegat and Stafford officers and statements from other officers on the scene.

He also took copies of the motor vehicle reports of both Barnegat and Stafford PDs.

After reviewing these reports, he prepared the disciplinary charges that were then sent to Cherry.

Olsen referred to some of these documents to outline the events of Jan. 29, 2014.

At 9:14 p.m. Cpl. Cherry and Cpl. John Sanzari arrived at the apartment of Leonard Hart in the Village on the Green complex on the corner of Route 9 and Meadow Lane. Hart had requested the officers to remove Tucker, his ex-girlfriend, who had become an “unwanted guest.”

At that time Hart also informed the officers that her driver’s license was suspended and that she had driven there. The officers confirmed that, and Tucker was told not to drive home, but to take the bus.

Cherry watched her walk to the bus stop near the apartments, at which point Sanzari left, but Cherry stayed in the vicinity on Meadow Lane.

At 9:45 Cherry saw Tucker pull out onto Route 9 in her car and, without signaling, take a left onto Cable Drive. Cable Drive is in Tuckerton’s jurisdiction for two-tenths of a mile; then it enters Little Egg Harbor.

Cherry followed Tucker with his siren and flashing lights to get her to pull over, but she continued to drive and took a right onto Railroad Avenue, again without signaling. Cherry followed her to the intersection with Parkertown Drive, where she ran through the flashing red light. At this point the officer of the day, Sanzari, told Cherry he might want to terminate the pursuit and mail the vehicle summonses to Tucker, but Cherry replied he now had a case of eluding an officer.

According to Olsen, on Cherry’s own incident report he stated that was where he terminated the pursuit, but in reality he continued to pursue Tucker past the intersection with Thomas Avenue in Eagleswood Township, a jurisdiction patrolled by the New Jersey State Police. His radio transmission indicated that both Tucker and Cherry took a right on Mill Road to enter Route 9, but a second later transmission stated he followed her to Sprague Avenue, where she ran a red light. Then on Cox Avenue they both took the right, and both turned left to enter Route 9 heading to Stafford Township. At this point, Cherry was 3 miles outside Tuckerton’s jurisdiction.

Stafford Township had been advised by dispatch that Cherry and Tucker were heading their way. Stafford Police Officer Keith Oler observed them both going 60-plus mph through the intersection with Bay Avenue, a 35 mph zone. Cherry no longer had his lights or siren going, but was only about three car lengths behind her.

Oler passed Cherry on Route 9 as they both followed Tucker to the boundary with Barnegat. Oler noted that Tucker was “all over the road.” Oler had his lights on, but Tucker still refused to pull over. Stafford’s officer of the day advised Oler to stop following Tucker as “she’s going home, let Barnegat know.” Oler turned around at the intersection with Gunning River Road after talking with a Barnegat officer, but Cherry continued to follow without lights or siren.

Barnegat police stopped traffic on West Bay Avenue at the intersection with Barnegat Boulevard, but were advised Tucker had already pulled into the Barnegat police station.

The pursuit ended when Tucker pulled into a parking space at a strip mall adjacent to the Barnegat Township police station. Two Barnegat police officers, Sgt. Richard Cassidy and Cpl. Richard Carr, approached Tucker’s car with their guns drawn and ordered her out of the car. As they opened the car door, they holstered their guns, and Cassidy pulled Tucker from the car onto the pavement, where she was lying face down when Cherry released his K-9, Gunner, who proceeded to bite at her jacket and back. This was captured on Barnegat police car video.

Olsen stated the dog engaged the suspect for 15 seconds before a command was given and it was 28 seconds before the dog released.

Charges Against Cherry
In Three Categories

Prosecuting attorney Goldman then took Olsen through the three categories of charges, starting with the pursuit.

According to Tuckerton’s rules and regulations, an officer may only pursue a suspect 1 mile into another jurisdiction before handing them over to the officers in that jurisdiction. When determining whether to pursue a suspect, an officer must also weigh the risks to the public, property, the suspect and himself. These standards are given to every officer when they join the force and are required to be read and signed off on, said Olsen.

In the case of Wendy Tucker, Olsen said that while she was in Tuckerton’s jurisdiction, the traffic violation of driving with a suspended license does not meet the criteria for initiating a pursuit. These are both Tuckerton PD guidelines and the state attorney general’s guidelines.

Cherry’s pursuit report stated the traffic violations were driving with a suspended license, eluding a police officer in the third degree, reckless driving, failure to signal, no insurance and resisting arrest, and was signed by him and initialed by Sgt. Chris Anderson, Olsen said.

Olsen said the disciplinary charges included a risk to the public when initiating the pursuit and, when told to terminate pursuit by the officer of the day, Cherry did not.

Cherry also told dispatch that he had terminated his pursuit at Parkertown Drive in Little Egg Harbor although he actually continued to Barnegat, a distance of 13 miles, and violated the rules on jurisdiction.

Cherry already knew the identity of the suspect, and the only reason to pull her over was a suspended driver’s license, and at that point she did not pose any danger to anyone.

Hearing officer Peterson asked if training on pursuit is given to officers in the Tuckerton police department. Olsen said it’s an in-house training by computer.

Goldman then showed the video of Tucker’s capture taken from the Barnegat patrol car that showed Carr and Cassidy removing her from the car, her sprawled on the ground and the police dog on her back.

This led to more charges: A K-9 handler should only use that amount of force necessary to effect a lawful arrest. The video shows Carr and Cassidy had taken her out of the car, her hands were at her side, and at no time did the Barnegat police officers ask Cherry to assist them or release their K-9, said Olsen.

Another charge is based on Cherry’s failure to announce that he was going to release his K-9. And at no time was Tucker told she was under arrest and to stop resisting. K-9 Gunner was also not given any command to desist even when her hands were in view, showing she did not have a weapon.

Cherry also did not take photographs of injuries of the suspect, as required by the K-9 officer rules and regulations.

Peterson asked, “Were there injuries?”

Olsen said yes, the prosecutor’s office had photos of Tucker’s back.

In the last group of charges, dealing with truthfulness, the report filled out by Cherry stated the suspect posed an immediate threat to law enforcement and it was unknown whether she had a weapon and she refused to bring her hands out from under her as she lay on the ground.

Olsen said that in Tuckerton, 15 minutes before the pursuit, Cherry had met Tucker in Hart’s apartment and did not pat her down or was not concerned with her having a weapon.

Olsen said the video also showed that her hands were at her side and that Barnegat officers did not have much of a chance to handcuff Tucker before Cherry released Gunner.

In the truthfulness charges, Olsen stated Cherry had altered his report to say he was traveling at 35 mph in Stafford.

After a short break, Cherry’s attorney, Riley, was able to cross-examine Olsen. She started with asking him how he had obtained his reports from the prosecutor’s office and had he traveled to Toms River three times and also talked with Internal Affairs Officer John Haliday. Olsen said he had free rein to go through three boxes of discovery documents to find the reports he used to prepare his charges.

Riley asked if Olsen had prepared an investigative report and kept a log of his reports. Olsen said no. She asked if anyone at the prosecutor’s office had talk about the Cherry case that the prosecutor’s had recently lost in court.

Olsen said one of the officers, he couldn’t remember who, had apologized for the handling of the case that resulted in the exoneration of Cherry.

“So you picked the documents that supported your charges?” asked Riley.

“Yes,” said Olsen.

Was he aware there was a second incident report filled out by Cherry? Olsen said yes, but the only difference was a note, he thought added by Cherry, stating that Tucker had previously been arrested four times for eluding and was on three years’ probation.

Riley then asked about the training officers receive in specific areas, including eluding and the use of force. The state Attorney General’s office requires training in these areas twice a year.

Olsen was not chief of police at the time and not subject to these questions, so Riley said she would have former Chief Caputo testify. Riley attempted to have a computer printout of test scores relating to training in 2013 and 2014 admitted into to evidence that had been obtained by Sgt. Chris Anderson, but Peterson said the document was not admissible because there was no trail of who had obtained the document and where it had come from. Riley said she would have Anderson at a future hearing date.

Riley also found that Olsen had not reviewed Wendy Tucker or Lenny Hart’s statements. Hart had given a statement to the prosecutor’s office on Feb. 6, 2014, on Tucker’s demeanor, saying he thought she was angry and it looked like she was “on something.”

Olsen said Cherry’s incident report gave no indication that Tucker was under the influence, and he did not charge her with that. “I would assume he would charge her if she was.”

Riley said that on Cherry’s report, he had checked off a box “possible narcotics.”

Riley asked Olsen if he knew that at the time of the incident Tucker was homeless. He said no and that it wouldn’t change his charges against Cherry.

Did he know that Cherry had inquired of the prosecutor’s office what degree of eluding he should charge Tucker with and was told third degree, when it could be a second-degree crime and then would be pursuit-able? Olsen said yes.

Stafford and Barnegat Officers
Called to Testify

Riley then brought up a term used by police, “a continuum in the use of force.” Barnegat Police Sgt. Richard Cassidy best described that when he was called as a witness on the second day of Cherry’s defense, Friday, Aug. 23.

First, though, was Stafford Officer Keith Oler’s testimony on what he recalled when Tucker and Cherry came through the intersection of Route 9 and Bay Avenue. He said he couldn’t recall if they were exceeding the speed limit at that point, but later, Tucker was speeding in excess of 70 mph in the vicinity of Gunning River Road in Barnegat and operating in a reckless manner. Oler put his sirens and lights on, and other drivers pulled off the side of the road. Cherry was not pursuing her at this point, said Oler; he was following behind without his siren or lights on.

Oler later wrote Tucker tickets for speeding, failure to maintain a lane, operating a vehicle in a reckless manner and a suspended license. None are criminal charges. He wrote the tickets at the hospital later that evening.

When Cassidy testified, he had to refresh his memory from his own report.

Riley asked, “When you pointed your gun at Tucker, you were utilizing constructive force? You had given her lawful orders to get out of the car and she was sitting in her car and the car is running. Carr had commanded her to get out of the car; this is failure to comply. She is resisting arrest. Now you put your hand on her – that is the next level of force. You are attempting to be reasonable, but she resists, and that requires you to increase the level of force – he was having trouble and you had to help. You used force to remove her from the vehicle?”

“We don’t know what’s in that car – could be a weapon,” said Cassidy.

“You have had numerous dealings with her,” said Riley. “She eluded you by foot one time, and one time she escaped from your department. So you know who you are dealing with. When you put your hands on her and ripped her out of the car – isn’t an officer permitted to use physical force and mechanical force? Mechanical force can be a baton, or (pepper) spray or the use of a K-9; as long as it’s justified, it’s permissible. You did not have control over Tucker, so mechanical force was warranted,” Riley suggested. “The AG’s use of force policy means you are required to submit a form, and did you?”

“Yes,” said Cassidy.

The form shows he checked off “under the influence,” and “refused to comply with officer’s commands.”

“When you took her out of the car, you were standing at her head?” Riley asked.

“Yes, Justin saw us and approached with a K-9. He could not see what I could see.”

“At no point in time did you say, ‘Stop’?”

“I don’t know what Officer Cherry saw; did he see a weapon? I didn’t know,” said Cassidy. “I always knew her to be intoxicated or on narcotics. I don’t know what she’s capable of.”

Cassidy also related that he stepped back when Cherry released the dog because he did not want to get bitten.

He stated he didn’t recall if he could see both of Tucker’s hands, and Cherry had shouted, “Show me your hands, stop resisting!”

The K-9 was taken off Tucker by Cherry when Cassidy said “something like, stop.”

Cassidy did not write any tickets about the incident because he said the initiating officer usually does and at this point it was Tuckerton’s collar. He was asked by his Captain Dugan to write a memo dated Feb. 4, 2014, describing the incident. “And that’s the only documentation you have?” asked Riley.

“Yes,” said Cassidy.

“Did you review the motor vehicle recording? Is that standard?”

Cassidy said yes. “Everything happened too fast to recollect,” he said.

The next date to continue the hearing is Friday, Aug. 30, when Cherry’s defense will call members of the county prosecutor’s Internal Affairs office to testify.

patjohnson@thesandpaper.net

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