MARKKOSCINSKI v. NEW JERSEY MOTOR VEHICLE COMMISSION

NOT FOR PUBLICATION WITHOUT THE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-0065-16T4

MARK KOSCINSKI,

        Appellant,

v.

NEW JERSEY MOTOR
VEHICLE COMMISSION,

        Respondent.

_____________________________

              Submitted January 8, 2018 – Decided February 14, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from the New Jersey Motor Vehicle
              Commission.

              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).

PER CURIAM

        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.

                                I

     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


1
   The Illinois court does not specify the kind of counseling
petitioner had to continue in New Jersey.

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minimum period for a second conviction.   See 
N.J.S.A. 39:4-

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

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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

reconsideration.

       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.



2
    A copy of the notice was not included in the record.

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    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

determination.

                                  II

    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.

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    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-

11 (1997).

    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.

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    In New Jersey Division of Motor Vehicles v. Egan, 
103 N.J.
 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,

                                  7                         A-0065-16T
4 N.J.S.A. 52:14B-1 to -15, affords licensees an administrative

hearing if there are disputed material facts, see 
N.J.S.A.

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



                                8                        A-0065-16T4
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.

Laurick, 
120 N.J. 1, 11-12 (1990); State v. Ferrier, 
294 N.J.

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).

    Affirmed.




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