NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4157-15T4
NEW JERSEY MOTOR
VEHICLE COMMISSION,
Petitioner-Respondent,
v.
GERARD J. REDMOND,
Respondent-Appellant.
____________________________
Argued September 18, 2017 – Decided October 16, 2017
Before Judges Sabatino and Whipple.
On appeal from New Jersey Motor Vehicle
Commission.
James N. Butler, Jr. argued the cause for
appellant.
Jennifer R. Jaremback, Deputy Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Ms. Jaremback, on the
brief).
PER CURIAM
Respondent, Gerard J. Redmond, appeals from a final decision
of the Commissioner of Motor Vehicle (Commissioner) suspending his
driver's license after a motor vehicle accident involving a
fatality. We remand for the following reasons.
On May 8, 2011, respondent was stopped at a traffic light at
an intersection in Jackson Township when a large insect entered
his passenger side window and startled him. When he tried to swat
the insect, his foot slipped off the brake, and respondent's
vehicle entered the intersection, where it collided with a vehicle
operated by the decedent. The decedent had the green light as he
was travelling through the intersection.
A Jackson police officer arrived at the scene and interviewed
both drivers. The officer described both individuals as alert,
calm, and able to answer questions. Respondent reported no injury
to the officer, described the accident, and was issued a summons
for failure to observe a traffic control device. N.J.S.A. 39:4-
81. The officer testified the decedent, an elderly man, complained
of lower back pain. The decedent was taken to the hospital, where
he died six weeks later.
The death certificate issued contemporaneously with the
decedent's death listed respiratory failure caused by bi-lateral
pneumonia as the cause of death. However, in 2014, the decedent's
estate obtained opinions from three medical experts and secured
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an amendment to the certificate, listing the cause of death as a
motor vehicle accident. Decedent's estate has since filed suit
against respondent.
After the Jackson police learned of decedent's death, they
referred the case to the fatal accident unit of the State Police.
On February 24, 2015, the State of New Jersey Motor Vehicle
Commission (the Commission) suspended respondent's license,
pursuant to N.J.S.A. 39:5-30, for sixteen months because his
actions in failing to observe a traffic control device contributed
to a fatality. Respondent appealed the suspension, and the matter
was heard in the Office of Administrative Law.
At the outset of the hearing, the Administrative Law Judge
(ALJ) granted the decedent's daughter leave to participate,
limited to reading an impact statement. At the close of the
hearing, she read the impact statement into the record and
disclosed that the decedent had contracted MRSA during the hospital
stay.
After considering the testimony of the officer and
respondent, and reviewing the medical reports, the ALJ determined
respondent caused the motor vehicle accident with the decedent.
The discussion then turned to the cause of the decedent's death.
The ALJ found no reason to reject the amended death
certificate and accepted the motor vehicle accident as the cause
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of death. The ALJ concluded respondent contributed to the fatality
and affirmed the suspension, while modifying it to six months
because of respondent's good driving record.
Respondent appealed the decision to the Commission. The
Commission issued a Final Decision on May 27, 2016, upholding the
ALJ's determination and suspension. Respondent was granted a stay
of the suspension pending this appeal, which followed.
On appeal, respondent argues the ALJ committed reversible
error in determining the decedent's death was a result of the
accident and abused her discretion by imposing a suspension.1
1
We note respondent's amended notice of appeal (NOA) only lists
the April 14, 2016 order of the ALJ and not the final decision of
the Commission, however, respondent does discuss the final
decision in his case information statement. Rule 2:5-1(f)(3)(A)
provides, "it is only the judgments or orders or parts thereof
designated in the [NOA] which are subject to the appeal process
and review." Pressler & Verniero, Current N.J. Court Rules, cmt.
6.1 on R. 2:5-1 (2011). Nonetheless, we may consider orders not
referenced in the NOA if the civil case information statement
(CIS) places the adversary on notice of the intended scope of
appeal. See Ahammed v. Logandro, 394 N.J. Super. 179, 187-88
(App. Div. 2007). We may also consider an order not identified
in the NOA where "the basis for the motion judge's ruling on [an
order and subsequent order] may be the same. In such cases, an
appeal [from the subsequent order] may be sufficient for an
appellate review of the [earlier order], particularly where those
issues are raised in the CIS," Fusco v. Board of Education of
Newark, 349 N.J. Super. 455, 461 (App. Div.), certif. denied, 174
N.J. 544 (2002), by "clearly indicat[ing]" the earlier order is
"one of the primary issues presented by the appeal." Synnex Corp.
v. ADT Sec. Servs., Inc., 394 N.J. Super. 577, 588 (App. Div.
2007).
4 A-4157-15T4
We have a limited role in reviewing administrative agency
decisions. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We
will not overturn such decisions unless they are "arbitrary,
capricious or unreasonable" or "not supported by substantial
credible evidence in the record as a whole." N.J. Soc'y for
Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J.
366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J.
571, 579-80 (1980)); In re Tukes, 449 N.J. Super. 143, 156 (App.
Div. 2017).
N.J.S.A. 39:5-30(a) empowers the Commission to suspend a
motorist's driving privileges for violation of any of the
provisions of the motor vehicle statutes and imposes no limitation
on the length of the suspension. The Commission may rest his or
her decision upon a mere preponderance of the evidence. Cresse
v. Parsekian, 81 N.J. Super. 536, 548-49 (App. Div. 1963), aff'd,
43 N.J. 326 (1964). "In proceedings before an administrative
agency . . . it is only necessary to establish the truth of the
charges by a preponderance of the believable evidence and not to
prove guilt beyond a reasonable doubt." Atkinson v. Parsekian,
37 N.J. 143, 149 (1962) (citations omitted).
Here, the ALJ's findings and conclusions with respect to
respondent's violation are supported by witness testimony and
other evidence presented at the hearing. In its final decision,
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the Commission adopted the ALJ's findings and conclusions in whole,
including the reduction of respondent's license suspension. We
need not discuss whether respondent violated N.J.S.A. 39:4-81,
failure to observe a traffic control, because he pled guilty to
that violation in municipal court. The focus of our discussion
is limited to whether the resulting accident caused the decedent's
death.
Among other things, the ALJ determined (1) respondent
acknowledged failure to observe the traffic light caused the
accident, (2) the decedent passed away because of the accident,
and (3) the unrebutted death certificate indicated the accident
was the cause of death. The ALJ then rejected respondent's
unsupported suggestions that decedent's estate amended the death
certificate to gain advantage in a related civil lawsuit or that
the decedent died because of other conditions contracted in the
hospital.
Based upon our review of the record, we take no issue with
these determinations by the ALJ.
We next consider respondent's argument that the imposition
of a six-month suspension was arbitrary and unreasonable.
Generally, "in reviewing administrative agency decisions, we
accord substantial deference to an agency head's choice of remedy
or sanction, seeing it as a matter of broad discretion, especially
6 A-4157-15T4
where considerations of public policy are implicated." In re
Herrmann, 192 N.J. 19, 34-35 (2007) (quoting Div. of State Police
v. Jiras, 305 N.J. Super. 476, 482 (App. Div. 1997), certif.
denied, 153 N.J. 52 (1998)). Here, the penalty was within the
numerical parameters of the Commissioner's delegated authority
under N.J.S.A. 39:5-30(a). However, in Cresse, we said
The Director must weigh each case
individually, to determine whether a
suspension is required at all for the purposes
above mentioned, and, if so, for how long.
Among other things, he should consider the
facts which constitute the particular
violation; whether the motorist was willful
or reckless, or merely negligent, and, if
merely negligent, how negligent; how long the
motorist has been driving; whether this is his
first offense; whether he has been involved
in any accidents; his age and physical
condition; whether there were any aggravating
circumstances, such as drinking, or, on the
other hand, whether there were extenuating
circumstances. Upon these and all the other
facts and circumstances, he should determine
whether it reasonably appears, as a matter of
prophylaxis and not of punishment, that the
motorist should be kept off the highway, and,
if so, for how long.
[Cresse, supra, 81 N.J. Super. at 549.]
Here the ALJ considered respondent's minimal driving record
and gainful employment, and determined respondent's actions were
not willful or reckless but merely negligent. The decision to
suspend respondent's driving privileges for six months, as a means
of "prophylaxis and not of punishment," was based on respondent's
7 A-4157-15T4
"refus[al] to accept that the accident he caused had effects
subsequent to the incident itself." This finding stemmed from
respondent's legal argument he should not be subject to suspension
based upon a death certificate amended three and one half years
after decedent's death. Based on our review of the record, we do
not consider this an appropriate aggravating factor, and consider
the imposition of a term of suspension for six months on that
basis an abuse of discretion. We thus remand the matter to the
Commission to determine anew on proper factors whether a suspension
is required, and if so, for how long.
Remanded for reconsideration of the term of suspension,
consistent with this opinion. We do not retain jurisdiction.
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