In the Matter of the Expungement Petition of D.H. (A-82-09)
In the context of an expungement application and in order to give full expression to the Legislature’s will, a mandatory order of permanent forfeiture of public employment must be severed from – and preserved from the expungement of – the conviction that originally triggered the order of forfeiture.
State v. Brian M. Yohnnson (A-37-09)
State v. O’Neill does not apply in this case, where police did not use a “question-first, warn-later” approach and defendant said nothing relevant to the crimes being investigated before receiving proper warnings. Under the familiar totality of the circumstances test, defendant’s waiver of his rights was knowing, voluntary, and intelligent.
State v Enright __ NJ Super. ___ (App. Div 2010)
A-4630-08T4 10-04-10
After defendant's conviction and sentence in the municipal court as a third-time DWI offender, he obtained a post-conviction order from a different municipal court in which his second DWI conviction had occurred confirming that conviction but directing that no court could use it to enhance his sentence on a subsequent DWI conviction. The Court held that the municipal court order was an erroneous application of State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), and that on de novo review of the third DWI conviction, the Law Division correctly declined to follow the municipal court's order.
PER CURIAM
Gregory Bass (Bass) appeals from a final decision of the New Jersey Motor Vehicle Commission (Commission), which indefinitely suspended his passenger-carrying endorsement (passenger endorsement) on his commercial driver's license (CDL). On appeal, defendant claims that he did not receive a fair hearing, and that the Commission abused its discretion when it suspended his passenger endorsement. After reviewing the record, the briefs, and the applicable law, we affirm.
On September 3, 2008, the Commission sent a "scheduled suspension notice" to Bass advising him that his New Jersey passenger endorsement was scheduled to be suspended on October 3, 2008, because he had a disqualifying criminal record. Pursuant to N.J.A.C. 13:21-14.5(a), every driver of a bus must "be of good character." The Commission is authorized to "revoke or suspend the bus driver license of any person arrested for, charged with, or indicted for any crime or other offense" if the Commission determines the bus driver "is of bad character or is morally unfit . . . or is a potential danger to his or her passengers or to other motorists or to himself or herself." N.J.A.C. 13:21-14.5(c)(13). The same regulation provides that a bus driver has a disqualifying criminal record if:
He or she has been convicted of . . . any of the following:
(1) An offense involving the manufacture, transportation, possession, sale or habitual use of a "controlled dangerous substance" as defined in the "New Jersey Controlled Substance Act";
. . . .
(3) A crime or other offense involving the use of force or the threat of force to or upon a person or property, such as armed robbery, assault and arson;
(4) Any crime or other offense indicative of bad moral character;
(5) He or she fails to notify the Motor Vehicle Commission that he or she has been arrested for, charged with, indicted for, convicted of, or forfeited bond or collateral upon any crime or other offense within 14 days after the date of such event.
[N.J.A.C. 13:21-14.5(c)(12).]
The suspension notice stated Bass could either accept the suspension or request a hearing. On September 16, 2008, Bass requested a hearing, which took place before an Administrative Law Judge (ALJ) on May 19, 2009. We have not been provided with a transcript of the administrative hearing, but the ALJ's written decision included the following:
From June 14, 1985 through September 21, 1992, [Bass] was convicted of weapons possession twice, burglary twice, and cocaine possession, all of which constituted felonies.
[Bass] was arrested for assault in 1995, 1999, 2003, and 2006. One such charge was dismissed.
At the OAL hearing [Bass] claimed that the most recent assault charge arose out of an episode of domestic violence. He testified that the victim was a corrections officer whom he had been dating. She allegedly filed charges claiming that he threatened her but that the arrest was dismissed as she failed to appear at the court hearing. Also, the dispute arose out of her dating another officer who was suspended.
[Bass] has worked for a company known as Whole Foods. He submitted a letter of recommendation from the company. In addition, [Bass] submitted a "To Whom It May Concern" letter dated April 23, 2009, from his current employer Lifestar Response of New Jersey stating that he has a full-time job with the company as a mobility assistance vehicle technician. At the OAL hearing, he testified that he drives a fifteen passenger vehicle for senior citizens.
. . . .
The crimes for which [Bass] was arrested and/or convicted involve moral turpitude. [Bass] has a history of violence which could make him a danger to bus passengers or other members of the public. [Bass] presented himself as the victim of what might be characterized as an evil woman. However, his explanations are no justification for repeated acts of violence. Also, [Bass] presented no evidence of rehabilitation which could belie the Commission's concerns.
[Citations to Exhibits omitted.]
Based on these findings and conclusions, the ALJ indefinitely suspended the passenger endorsement on Bass's CDL. That decision was affirmed by the Commission on August 20, 2009, but the Commission stayed the suspension pending resolution of this appeal.
Defendant argues on appeal that "his civil and constitutional rights" have been violated and that the ALJ's decision "was only a pretext for unlawful discrimination in violation of the anti-discrimination laws." However, there is no evidence in the record before us to support those claims.
Our scope of review of an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). "[A]n appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).
In the present matter, the Commission's decision is authorized by statute, N.J.S.A. 39:3-10.1, and by regulation, N.J.A.C. 13:21-14.5(a) and (c). Moreover, the decision is supported by substantial credible evidence and is neither unfair nor unreasonable.
Affirmed.