NEW JERSEY MOTOR VEHICLE COMMISSION v. NIRAJ R. JIVANI

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5345-07T25345-07T2

NEW JERSEY MOTOR VEHICLE

COMMISSION,

Petitioner-Respondent,

v.

NIRAJ R. JIVANI,

Respondent-Appellant.

______________________________________________

 

Submitted April 22, 2009 - Decided

Before Judges Cuff and Fisher.

On appeal from the New Jersey Motor Vehicle Commission, Agency No. 12851.

Dominic J. Cerminaro & Associates, attorneys for appellant (Warren L. Fink, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Judith Andrejko, Deputy Attorney General, on the brief).

PER CURIAM

Due to appellant's atrocious driving record, the New Jersey Motor Vehicle Commission (MVC) served notices of proposed suspensions, which, if sustained, would result in a 2340-day suspension of appellant's driving privileges. Appellant retained counsel and requested a hearing.

On the day of the scheduled administrative hearing, the parties entered into a consent order that: (1) suspended appellant's driving privileges for 1195 days; (2) required a one-year probationary period following restoration; (3) imposed a $250 per year surcharge for a three-year period; and (4) dismissed the remaining charges.

Appellant appealed the consent order, arguing he did not receive a fair hearing because the stipulation of settlement was not preceded by a voluntary waiver of his right to a hearing and because he was denied the effective assistance of counsel. We find insufficient merit in those arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). We add only the following brief comments.

In his first argument, appellant claims he was "forced to accept" the stipulation of settlement. The record does not support that claim. Instead, the transcript of the hearing reveals only that appellant, under oath, acknowledged in response to the questions of the administrative law judge (ALJ) that he freely and voluntarily entered into the settlement. Appellant's own sworn testimony at the hearing demonstrates the frivolity of his current argument that he was coerced:

THE COURT: . . . Now, Mr. Jivani, you know what you face here today, we've had lengthy discussions, and you heard me read the nine scheduled suspension notices; is that correct?

MR. JIVANI: Yup.

THE COURT: And you're here today with counsel, . . . is that correct?

MR. JIVANI: Yes, sir.

THE COURT: And you've conferred with him about this matter and he has represented you throughout and you have accepted his advice; is that correct?

MR. JIVANI: Yes.

THE COURT: Okay. Now you have signed this consent order, stipulation of settlement, and you realize that effective today your driving privileges will be suspended for this 1195 days; is that correct?

MR. JIVANI: Mm-hm.

THE COURT: All right. Now you've entered into this settlement voluntarily, of your own free act and deed; is that correct?

MR. JIVANI: Yes.

THE COURT: Okay. And on the advice of counsel; is that correct?

MR. JIVANI: Yes.

THE COURT: After having had certainly a full discussion I have here 11:15 I kind of began this, it's now almost 1:15 and this is what you want to do. You realize you're giving up your right to a hearing before me to have me decide the case; is that correct?

MR. JIVANI: (Out of microphone range)

THE COURT: . . . You realize by entering into this settlement you're giving up your right to a hearing and have me hear your case; is that correct?

MR. JIVANI: Mm-hm.

THE COURT: Mm-hm? Yes?

MR. JIVANI: Yes.

THE COURT: And that's what you want to do?

MR. JIVANI: Yes.

THE COURT: Okay. What I'm --

MR. JIVANI: The last question means like if I want a hearing I can't have it?

THE COURT: You know full well what I'm saying; by signing this settlement agreement you're waiving your right to have me hear the case and decide the case.

MR. JIVANI: (Out of microphone range)

THE COURT: Yes, you're giving up your right to a hearing, right? You understand that?

MR. JIVANI: Yes.

THE COURT: All right, okay, and that's what you want to do; is that correct?

MR. JIVANI: Yes.

Although it is certainly true, as appellant argues, that a coerced waiver of a hearing should not be upheld, there is utterly no evidence in this record -- just appellant's unsupported contentions in his appellate brief -- that the agreement was anything other than a product of his own free and voluntary act.

In his second argument, appellant contends he was denied the effective assistance of counsel. In disposing of this argument, we need not determine whether the suspension of appellant's driving privileges in this instance generated the right to counsel guaranteed by the federal and state constitutions. We acknowledge that the constitutional right to counsel extends beyond criminal proceedings, see Division of Youth and Family Services v. B.R., 192 N.J. 301, 305-07 (2007); Pasqua v. Council, 186 N.J. 127, 141-49 (2006), and will assume for present purposes only that it attached to the proceedings commenced against this appellant. Nevertheless, appellant has not demonstrated how his counsel was negligent or how any alleged negligent advice led to this settlement, which appellant endorsed when questioned by the ALJ.

In his appellate brief, appellant argues that he had retained a particular attorney who became unavailable on the date of the hearing and was replaced by an associate whose performance, according to appellant, "was simply unreasonable" because he could not secure an adjournment of the hearing. We reject this argument. Counsel's inability to convince the ALJ to exercise his discretion in favor of an adjournment did not fall below the "objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), nor has appellant shown that it was reasonably probable that, but for this denial of an adjournment, the outcome of the hearing would have been different, id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

 
Affirmed.

The record indicates that by the time of the hearing in question, appellant had accumulated at least fifty-seven points as a result of twenty-one convictions of speeding and careless driving over a four-year period.

We note that appellant is seeking our review of a consent order. It is well established that an order "entered with the consent of the parties is ordinarily not appealable for the purpose of challenging its substantive provisions." Pressler, Current N.J. Court Rules, comment 2.2.3 to Rule 2:2-3 (2009). See also Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950); O'Loughlin v. Nat'l Cmty. Bank, 338 N.J. Super. 592, 602 (App. Div.), certif. denied, 169 N.J. 606 (2001). However, considering MVC's failure to raise the issue, as well as the fact that appellant challenges the circumstances surrounding the order's entry and not the terms of the order itself, we deem it appropriate to consider the merits of appellant's arguments.

(continued)

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A-5345-07T2

May 4, 2009