NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1869-08T21869-08T2

MARCELLO BUSTAMANTE,

Plaintiff-Appellant,

v.

BOROUGH OF PARAMUS, POLICE

DEPARTMENT OF THE BOROUGH OF

PARAMUS, DOUGLAS EHRENBERG,

ROBERT GLEASON, CHRIS TSENTAS,

MICHAEL CEBULSKI, CRAIG MCELLEN,

Individually and as Agents for

the Borough of Paramus Police

Department,

Defendants-Respondents.

___________________________________________________

Argued December 15, 2009 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Bergen County, Law Division, Docket No. L-2168-07.

Leonard S. Miller argued the cause for appellant (Leonard S. Miller, P.A., attorneys; Leslie E. Rice, on the brief).

Ruby Kumar-Thompson argued the cause for respondent Douglas Ehrenberg (Thomas B. Hanrahan & Associates, attorneys; Mr. Hanrahan, of counsel and on the brief; Ms. Kumar-Thompson, on the brief).

Zisa & Hitscherich, attorneys for respondent Chris Tsentas (Robert J. Hitscherich, on the brief).

Breslin & Breslin, P.A., attorneys for respondent Borough of Paramus and Police Department of Borough of Paramus; Ganz & Sivin, LLP, attorneys for respondent Robert Gleason; Law Offices of John L. Schettino, attorneys for respondent Michael Cebulski; and Carl M. Losito, attorney for respondent Craig McEllen, join in the brief of respondent Douglas Ehrenberg.

The opinion of the court was delivered by

MESSANO, J.A.D.

Plaintiff Marcello Bustamante appeals from the dismissal of his complaint with prejudice for "failure to state a claim upon which relief can be granted," Rule 4:6-2(e), and the denial of his motion to amend the complaint. We have considered the arguments raised in light of the record and applicable legal standards. We affirm the denial of plaintiff's motion to amend his complaint; we reverse the dismissal of the complaint with prejudice, and remand the matter to the trial court for further proceedings consistent with this opinion.

I.

On the evening of January 31 and into the early morning hours of February 1, 2006, plaintiff and his friend, Konstadinos Peppas, were at Houlihan's Restaurant in Paramus. The manager of the restaurant summoned the police, claiming the men were both "heavily intoxicated[] and acting up." When police arrived, they confronted the two men. A struggle ensued and plaintiff was ultimately arrested.

On August 29, 2006, the Bergen County grand jury indicted plaintiff and Peppas for two counts of fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and one count of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). The victims of the assaults were alleged to be Paramus police officers, Douglas Ehrenberg, in one count, and Craig McEllen in the other. The indictment also named Paramus police officers "R. Gleason," "C. Tsentas," and "Michael Cebulski" as those whose arrest plaintiff resisted.

During preliminary proceedings in the criminal case, plaintiff sought access to the personnel files of the five officers, indicating that he intended to assert "as a defense to the charges[,] . . . both self-defense and resistance to excessive force . . . ." On January 2, 2007, plaintiff appeared in Superior Court, and, pursuant to a plea bargain reached with the State, was prepared to plead guilty to the disorderly persons offense of resisting arrest as amended, N.J.S.A. 2C:29-2(a)(1); the other charges were to be dismissed. Plaintiff intended to apply to the Pre-Trial Intervention Program (PTI), however, and defense counsel, the prosecutor, and the judge noted that PTI was unavailable if plaintiff pled guilty to a disorderly persons offenses. See Pretrial Intervention Programs, Pressler, Current N.J. Court Rules, comment on R. 3:28, Guideline 2 at 1063 (2010) ("Any defendant accused of crime shall be eligible for admission into a PTI program.") (emphasis added); see also State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004) ("PTI is a diversionary program designed to 'augment the options of prosecutors in disposing of criminal matters . . . .'") (quoting State v. Brooks, 175 N.J. 215, 223 (2002) (emphasis added)).

As a result, defendant entered a guilty plea to fourth-degree resisting arrest as amended. See N.J.S.A. 2C:29-2(a)(2) ("[A] person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest."). In response to questioning by his attorney, plaintiff admitted that he had "attempted to prevent [his] lawful arrest by officers that had entered th[e] restaurant." The judge explained that if plaintiff was "thrown out of PTI," he would be placed on probation pursuant to the plea bargain. Defendant entered the PTI program, a one-year "order of postponement" of the criminal charges was filed, plaintiff successfully completed PTI, and the indictment was dismissed on February 29, 2008.

On March 26, 2007, plaintiff filed his complaint against defendants Borough of Paramus, Police Department of the Borough of Paramus, police officers Ehrenberg, McEllen, Cebulski, Robert Gleason, and Chris Tsentas (collectively, defendants). In the first count, plaintiff claimed defendants had committed an "assault and battery[,]" further alleging that the "attack . . . continued while [he] was handcuffed and in police custody." In count two, plaintiff alleged defendants "act[ed] under color of law" in violation of 42 U.S.C.