NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-0065-16T4
NEW JERSEY MOTOR
Submitted January 8, 2018 – Decided February 14, 2018
Before Judges O'Connor and Vernoia.
On appeal from the New Jersey Motor Vehicle
Mark Koscinski, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Jennifer R. Jaremback, Deputy Attorney
General, on the brief).
Petitioner Mark Koscinski appeals from the June 27, 2016
final decision of respondent Motor Vehicles Commission
(Commission), which increased the amount of a monthly surcharge
payment it imposed after petitioner was convicted of driving
while under the influence of alcohol in Illinois (Illinois
conviction). We affirm.
Petitioner is a resident of New Jersey. In 2008, he was
convicted of driving while intoxicated in New Jersey (New Jersey
conviction), his first conviction for such offense. In 2011,
petitioner was charged in Illinois for the same offense. For
reasons not clear in the record, this charge was not resolved
until April 8, 2015, when he pled guilty to this offense. The
sentence the Illinois court imposed was that he "continue
counseling in New Jersey"1 and pay a fine of $750.
Both New Jersey and Illinois are members of the Interstate
Driver License Compact (Compact),
N.J.S.A. 39:5D-1 to -14 and
N.J.A.C. 13:19-11.1. The compact requires party states to
impose penalties upon licensed drivers who have been convicted
of specific offenses in other states. After receiving a record
of the Illinois conviction, on May 5, 2015, the Commission
issued petitioner a notice of suspension. The noticed stated
the Commission proposed to suspend petitioner's New Jersey
driving privileges for 730 days, the statutorily mandated
The Illinois court does not specify the kind of counseling
petitioner had to continue in New Jersey.
minimum period for a second conviction. See
50(a)(2). Petitioner was also advised of his right to request a
hearing, including the format of the hearing request;
specifically, the notice stated that if he was seeking a
hearing, he was to detail all disputed material facts and
specify all legal issues he wished to raise at the hearing.
Petitioner promptly responded by letter, in which he
requested a hearing, set forth what he perceived were material
issues of fact, and identified the legal issues he deemed
relevant to the proposed suspension of his license. On July 17,
2015, the Commission issued an "Order of Suspension" and "Denial
of Hearing Request/Final Decision," in which it suspended
petitioner's license for 730 days, effective August 17, 2015.
In the order, the Commission denied petitioner's request
for a hearing, finding none of the factual or legal issues
petitioner asserted warranted such a proceeding. The order
further stated it constituted a final decision of the Chief
Administrator of the Commission, and that petitioner had forty-
five days to file a notice of appeal in the Appellate Division.
In a letter dated "July 17, 2018," petitioner asserted he
was making a motion for reconsideration of the order; a complete
copy of the petitioner's letter was not included in the record.
We discern the motion for reconsideration was denied, but the
Commission's decision also was omitted from the record.
Petitioner did not appeal from the July 17, 2015 order or from
the Commission's determination to deny his motion for
In a letter dated June 7, 2016, petitioner informed the
Commission he received a notice the Commission intended to
increase the monthly payment toward the surcharge it imposed as
a result of the Illinois conviction, from eighty-three to
ninety-seven dollars per month.2 In that letter, petitioner
requested a hearing before the Commission because: (1) although
he did not appeal from either the New Jersey or Illinois
convictions, he wanted to challenge both on the ground his sleep
apnea condition caused him to drive while under the influence of
alcohol; (2) he wanted to attack the Illinois conviction on the
ground the prosecution of such matter was impermissibly delayed
for four years; (3) the Commission improperly imposed monetary
penalties and a two-year driver's license suspension "more than
three years after the event"; and (4) the Commission was without
authority to impose a surcharge or any increases on a surcharge
because he had previously paid a fine to Illinois in connection
with the Illinois conviction.
A copy of the notice was not included in the record.
On June 27, 2016, the Commission issued a written decision,
in which it pointed out
N.J.S.A. 17:29A-35 requires an
assessment of $1000 per year for three years when a New Jersey
driver has been convicted of driving under the influence of
alcohol. The Commission further explained petitioner owed $1062
toward the annual surcharge he had been required to pay in 2015;
therefore, the Commission determined to impose a payment plan,
whereby he would be required to pay ninety-seven dollars per
month for the surcharge.
The Commission also informed petitioner it did not have the
authority to change any "court-reported violations" and, thus,
if he questioned the validity of the Illinois conviction, he
would have to submit documentation from an Illinois court
stating he had not been convicted of driving while under the
influence. The Commission did not grant petitioner's request
for a hearing. Petitioner appeals from the June 27, 2016
On appeal, in addition to asserting contentions he did not
raise before the Commission when he challenged the increase in
the surcharge payment, petitioner reprises the arguments he made
before the Commission and further contends the Commission erred
when it failed to grant his request for a hearing.
We do not address any contentions that were not made before
the Commission. "Generally, an appellate court will not
consider issues, even constitutional ones, which were not raised
below." State v. Galicia,
210 N.J. 364, 383 (2012). As for the
remaining arguments, all are without merit.
Our role in reviewing a decision of the Commission is
limited. In the absence of a "a clear showing that it is
arbitrary, capricious, unreasonable or not supported by credible
evidence in the record as a whole[,]" the decision will be
sustained. Klusaritz v. Cape May County,
387 N.J. Super. 305,
313 (App. Div. 2006); Brady v. Bd. of Review,
152 N.J. 197, 210-
We reject petitioner's argument the Commission was without
authority to impose a surcharge or an increase in the surcharge
because he had previously paid a fine to the Illinois court in
connection with the Illinois conviction. The Compact provides
for party states to impose penalties upon licensed drivers who
have been convicted of specific offenses in other states. When
a New Jersey driver has been convicted of driving under the
influence of alcohol in another state,
N.J.S.A. 39:5D-4 directs
the Commission to "give the same effect to the conduct reported
. . . as it would if such conduct had occurred in the home
state," New Jersey.
In New Jersey Division of Motor Vehicles v. Egan,
350, 357 (1986), our Supreme Court reviewed the policy of the
Director of the Division of Motor Vehicles to exercise the
discretion granted by
N.J.S.A. 39:5D-4 to "uniformly impos[e]
New Jersey's more stringent penalty instead of being reduced to
'the least common denominator of other States[.]'" The Court
noted the "legislative policy of exacting stringent penalties
for drunk-driving offenses has never been stronger[,]" and
concluded the "Director's administrative policy of imposing
these home state penalties furthers this legislative policy" and
was not an abuse of discretion. Ibid.
Accordingly, petitioner was subject to punishment in both
Illinois and New Jersey for driving while intoxicated. State,
Div. of Motor Vehicles v. Pepe,
379 N.J. Super. 411, 418 (App.
Div. 2005). The fact the Illinois court imposed a sentence did
not preclude the Commission from imposing applicable mandatory
sanctions and penalties for petitioner's second driving while
intoxicated conviction. Thus, the Commission had the authority
to impose the surcharge and any increases on such surcharge.
We also reject petitioner's contention the Commission erred
when it declined petitioner's request to hold a hearing, so that
he could collaterally attack the New Jersey and Illinois
convictions. Although the Administrative Procedure Act,
4 N.J.S.A. 52:14B-1 to -15, affords licensees an administrative
hearing if there are disputed material facts, see
52:14B-11, by the same token, a contested case hearing is not
required where the material facts are not in dispute. Pepe,
379 N.J. Super. at 419 (noting if there are no disputed issues of
fact, a hearing is unnecessary).
Here, petitioner failed to identify any material facts that
were in dispute, including the existence of the New Jersey and
Illinois judgments of conviction. A hearing is not required
when, as was the case here, "the agency is required by any law
to revoke, suspend or refuse to renew a license, as the case may
be, without exercising any discretion in the matter, on the
basis of a judgment of a court of competent jurisdiction[.]"
N.J.S.A. 52:14B-11; Tichenor v. Magee,
4 N.J. Super. 467, 470-71
(App. Div. 1949) (holding a hearing is not required when out-of-
state conviction was undisputed).
Petitioner argues that, had the Commission conducted a
hearing, he would have successfully convinced it to overturn the
New Jersey and Illinois convictions, once the Commission was
made aware his sleep apnea condition caused him to drink alcohol
and drive. We decline to delve into the many deficiencies of
this argument. Suffice it to say there is no serious dispute
the administrative hearing petitioner sought was not the
appropriate forum in which to challenge these convictions.
Finally, petitioner contends the four-year delay between
being charged with the subject offense in Illinois in 2011 and
disposition of this matter in 2015 precluded the Commission from
taking any action against him. We reject this premise as
unsupported by any statutory, regulatory or decisional
authority. To the extent such delay impacts the Illinois
conviction, petitioner's recourse is to challenge such
conviction in Illinois, not in New Jersey. See, e.g., State v.
120 N.J. 1, 11-12 (1990); State v. Ferrier,
Super. 198, 200 (App. Div. 1996); Tichenor,
4 N.J. Super. at 471
(where driver did not appeal Maryland conviction for drunk
driving, he cannot "assert" invalidity of the same in a
reciprocal suspension proceeding by New Jersey).
To the extent we have not addressed any argument petitioner
advances, it either is due to the fact such argument is not
properly before us or is devoid of sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).