IN THE MATTER OF FRANKLIN HERNANDEZ, CITY OF PERTH AMBOY (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3957-17T1
IN THE MATTER OF
FRANKLIN HERNANDEZ,
CITY OF PERTH AMBOY.
___________________________
Argued July 9, 2019 – Decided November 15, 2019
Before Judges Nugent and Accurso.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2018-1058.
Charles J. Uliano argued the cause for appellant
Franklin Hernandez (Chamlin Rosen Uliano &
Witherington, attorneys; Charles J. Uliano, of counsel;
Andrew Thomas Walsh, on the brief).
Michael Scott Williams argued the cause for
respondent City of Perth Amboy (Cruser, Mitchell,
Novitz, Sanchez, Gaston & Zimet, LLP, attorneys;
Michael Scott Williams, of counsel and on the brief).
Debra Allen, Deputy Attorney General, argued the
cause for respondent Civil Service Commission (Gurbir
S. Grewal, Attorney General, attorney; Debra Allen, on
the statement in lieu of brief).
PER CURIAM
Appellant Franklin Hernandez, a former City of Perth Amboy police
officer, appeals from the final decision of the Civil Service Commission
(Commission) that upheld his removal from office. The City removed
Hernandez after learning that while serving a tour of duty in the military,
Hernandez pled guilty to "Assault Consummated by a Battery" for "grasping" a
former girlfriend where her neck and shoulder met and attempting to force her
out of a nightclub.
The New Jersey Code of Criminal Justice, specifically N.J.S.A. 2C:39-7,
Certain Persons Not to Have Weapons, prohibits people from purchasing,
owning, possessing, or controlling a firearm if they have "been convicted in this
State or elsewhere of a disorderly persons offense involving domestic violence."
N.J.S.A. 2C:39-7(b)(2). The City removed Hernandez on the ground that his
conviction was a disorderly persons offense involving domestic violence, he was
thus prohibited by the Certain Persons statute from carrying a weapon in New
Jersey, and he could not perform his duties as a police officer if he could not
carry a weapon. Because the Commission's final decision was not arbitrary,
capricious, or unreasonable, we affirm.
The material facts are not in dispute. Hernandez was both a police officer
with the City of Perth Amboy police department and a member of the New Jersey
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Army National Guard. In May 2014, Hernandez received orders mobilizing him
to active duty and he was deployed to Qatar.
Although "fraternization" between Non-commissioned Officers and
Junior Enlisted Soldiers was prohibited, in September 2014, Hernandez, a
sergeant, began a dating, romantic relationship with a Specialist (SPC). Despite
being ordered by his superiors to terminate the relationship, Hernandez
continued dating the SPC until she terminated the relationship three months
later, in December. The next week, on Christmas Eve, Hernandez encountered
the SPC at a club at their camp. The ensuing incident involving Hernandez and
the SPC is described in a stipulation Hernandez entered into as part of his guilty
plea:
[They] exchanged greetings, wishing each other a
Merry Christmas, but then engaged in a verbal dispute
regarding whether [the SPC] . . . was seeing other
persons. Sergeant Hernandez turned around and
grasped with his hand the area on [the SPC's] body
where her neck and shoulder met. Sergeant Hernandez
did not have [the] . . . permission to touch her there in
that manner. In a sworn statement to Military Police
[the SPC] stated that SGT Hernandez forcefully
grabbed her by the back of her neck and tried to take
her out of the . . . club. She stated that before he
grabbed her, she had agreed to talk with SGT
Hernandez outside of the club so as not to create a
scene. She stated that she asked SGT Hernandez to let
her tell her friends where she was going and to let her
get her purse that she had left with another Solider.
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[The SPC] . . . stated that SGT Hernandez told her "no,"
to get her purse only, and to leave with him now. It was
at this moment that she stated SGT Hernandez grabbed
her neck and tried to take her out of the club. [The SPC]
stated that she told SGT Hernandez he was hurting her
and to let go of her. She further stated that SGT
Hernandez did not let go of her, and it was not until she
asked him three times to remove his hand and two other
Soldiers came to intervene that he finally removed his
hand from her neck.
Hernandez pled guilty to violating the Uniform Code of Military Justice
(UCMJ), Article 128, "Assault Consummated by a Battery." Hernandez also
pled guilty to two other charges not relevant to this appeal.
In August 2017, after Hernandez had returned to his employment with the
City of Perth Amboy Police Department, he was served with a Preliminary
Notice of Disciplinary Action (PNDA). The PNDA specified four general
charges for major discipline under N.J.A.C. 4A:2-2.3(a): (3) inability to perform
duties; (5) conviction of a crime; (6) conduct unbecoming a public employee;
and (12) other sufficient cause. In the PNDA section concerning incidents
giving rise to the charges, the PNDA contained the following information:
Mr. Hernandez pleaded guilty to the crime of "assault
consummated by a battery" pursuant to Article 128 of
the UCMJ with the victim being a fellow soldier to
whom Mr. Hernandez had been in a "romantic
relationship." As such, Mr. Hernandez is in violation
of N.J.A.C. 4A:2-2.3(a)(5)(6) and (12).
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Pursuant to this conviction, the Middlesex County
Prosecutor's Office advised the City of Perth Amboy
that it considers Mr. Hernandez's conviction to
constitute a domestic violence offense and accordingly
advised that Mr. Hernandez is prohibited from carrying
a service weapon and has ordered that Mr. Hernandez
turn over his personal firearm. N.J.A.C. 4A:2-
2.3(a)(3).
In a note on the last page of the PNDA, the City added:
Failure to inform Police Department of the status of
pending charges of a serious crime while on Military
leave under the Uniform Code of Military Justice.
N.J.A.C. 4A:2-2.3(a)(6) & (7).
Following a hearing, the City served Hernandez with a Final Notice of
Disciplinary Action (FNDA), which documented that four charges enumerated
in N.J.A.C. 4A:2-2.3(a) had been sustained: (1) incompetency, inefficiency or
failure to perform duties; (5) conviction of a crime; (6) conduct unbecoming a
public employee; and (12) other sufficient cause. It also stated:
Mr. Hernandez pleaded guilty to the crime of "assault
consummated by a battery" pursuant to Article 128 of
the UCMJ with the victim being a fellow soldier to
whom Mr. Hernandez had been in a "romantic
relationship." As such, Mr. Hernandez is in violation
of N.J.A.C. 4A:2-2.3(a)(5)(6) and (12).
In a note on the last page of the FNDA, the City added:
Pursuant to this conviction, the Middlesex County
Prosecutor's office advised the City of Perth Amboy
that it considers Mr. Hernandez's conviction to
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constitute a domestic violence offen[s]e and
accordingly advised that Mr. Hernandez is prohibited
from carrying a service weapon and has ordered that
Mr. Hernandez turn over his personal firearm. N.J.A.C.
[4A:2-2.3(a)(3).]
Hernandez filed an administrative appeal. The appeal was heard by an
administrative law judge (ALJ) who decided the matter in a summary decision .
Based upon stipulated facts, the ALJ determined that Hernandez was involved
in a "dating relationship" with the SPC, and that such a relationship fell within
the definition of a "domestic relationship" under New Jersey's Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Concluding
Hernandez had committed an act of domestic violence by assaulting the SPC,
and further concluding Hernandez's conduct constituted a "disorderly persons
offense involving domestic violence" under N.J.S.A. 2C:39-7(b)(2), which
prohibits certain persons from possessing weapons, the ALJ found that
Hernandez was prohibited from carrying a firearm. Consequently, Hernandez
could not perform his duties as a police officer, and the City of Perth Amboy
properly removed him from that position. The ALJ also found Hernandez's
conduct unbecoming a public employee.
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The ALJ did not sustain the charge of conviction of a crime and did not
address the charge that Hernandez had failed to inform the City of the military
charges as the City had offered no evidence concerning that charge.
Hernandez filed exceptions to the ALJ's decision. After independently
evaluating the record, the Commission adopted the ALJ's findings of fact and
conclusion, and thus affirmed the City's action in removing Hernandez. This
appeal followed.
On appeal, Hernandez argues his plea to assault consummated by battery
under the UCMJ was not an act of domestic violence and therefore he is entitled
to the return of his weapon and reinstatement as a police officer. He notes the
UCMJ, Article 128, codified in 10 U.S.C. § 928, Assault Consummated by a
Battery, does not contain an element of domestic violence. Specifically, the
Article declares:
(a) Any person subject to this chapter who attempts or
offers with unlawful force or violence to do bodily
harm to another person, whether or not the attempt or
offer is consummated, is guilty of assault and shall be
punished as a court-martial may direct.
In addition, Hernandez argues that 18 U.S.C. § 922(g)(9), commonly
known as the Lautenberg Amendment to the Federal Gun Control Act of 1968,
18 U.S.C. §§ 921-930, does not prohibit him from possessing a gun. He points
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out that 18 U.S.C. § 922(g)(9) prohibits any person "who has been convicted in
any court of a misdemeanor crime of domestic violence" from possessing a
firearm. Although he concedes that under our decision in State v. Wahl, 365
N.J. Super. 356 (App. Div. 2004), conviction of a disorderly persons offense i s
the equivalent of a "misdemeanor" under 18 U.S.C. § 922(g)(9), he argues that
a misdemeanor crime of domestic violence must be committed by one of the
following persons:
a current or former spouse, parent, or guardian of the
victim, by a person with whom the victim shares a child
in common, by a person who is cohabiting with or has
cohabited with the victim as a spouse, parent, or
guardian, or by a person similarly situated to a spouse,
parent, or guardian of the victim.
[18 U.S.C. § 921(a)(33)(A)(ii).]
Hernandez also notes that the term "intimate partner" is defined in 18
U.S.C. §921(a)(32) and "means with respect to a person, the spouse of the
person, a former spouse of the person, an individual who is a parent of a child
of the person, and an individual who cohabitates or has cohabited with the
person." He argues that a dating relationship is not included within any of these
definitions, and thus it was not illegal to possess a weapon under the Federal
Gun Control Act. He also argues that any suggestion by the ALJ to the contrary
is misplaced.
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We affirm, substantially for the reasons expressed by the ALJ in his initial
decision, which the Commission accepted and adopted. We add the following
comments.
Hernandez argues that to constitute a "misdemeanor crime of domestic
violence" under 18 U.S.C. § 922(g)(9), the predicate misdemeanor must identify
as an element of a crime a domestic relationship between the aggressor and the
victim. The United States Supreme Court has expressly rejected the argument
and held "the domestic relationship, although it must be established beyond a
reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be
a defining element of the predicate offense." United States v. Hayes, 555 U.S.
415, 418 (2009).
Hernandez does not directly dispute that his conviction of assault
consummated by a battery is an act of domestic violence under the PDVA,
N.J.S.A. 2C:25-19(2). Nor does he dispute that assault consummated by a
battery is the equivalent of a "disorderly persons offense involving domestic
violence" under N.J.S.A. 2C:39-7(b)(2), which in New Jersey prohibits a person
guilty of such offense from possessing a firearm. Rather, he emphasizes that his
conviction is not a "misdemeanor crime of domestic violence" under 18 U.S.C.
§ 922(g)(9). He then merely asserts, in conclusory fashion, that "any attempt to
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pursue 'domestic violence' charges or compel the surrender of [his] weapons
. . . is subject to federal preemption." In support of that proposition, he cites to
Wahl, 365 N.J. Super. at 356, though acknowledging through a parenthetical
explanation that Wahl held the "federal doctrine of preemption was inapplicable
in domestic violence weapons forfeiture proceeding, in which defendant had
been convicted of disorderly persons offense of simple assault."
In 18 U.S.C. § 927, Congress provided:
No provision of this chapter shall be construed as
indicating an intent on the part of the Congress to
occupy the field in which such provision operates to the
exclusion of the law of any State on the same subject
matter, unless there is a direct and positive conflict
between such provision and the law of the State so that
the two cannot be reconciled or consistently stand
together.
Hernandez does not explain why the ALJ's conclusion was wrong or why
New Jersey's Certain Persons statute "is directly and positively in conflict" with
the Federal Gun Control Act "so that the two cannot be reconciled or
consistently stand together." Rather, he makes a bald assertion and supports it
by citation to a case that arguably supports the contrary proposition.
Parties to an appeal are required to make a proper legal argument,
"[s]upporting [their] legal argument with appropriate record reference [s] . . . .
[and] provid[ing] the law." State v. Hild, 148 N.J. Super. 294, 296 (App. Div.
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1977); see also Sackman v. N.J. Mfrs. Ins. Co., 445 N.J. Super. 278, 297-98
(App. Div. 2016). Counsel are required to "present [a] reasonably competent
analysis of the law as it relate[s] to the facts of th[e] case. Sackman, 445 N.J.
Super. at 298-99. An argument based on conclusory statements is insufficient
to warrant appellate review. Nextel of N.Y., Inc. v. Bd. of Adjustment, 361 N.J.
Super. 22, 45 (App. Div. 2003).
These observations notwithstanding, under the narrow facts of this case
we do not find an irreconcilable conflict between the Federal Gun Control Act
and N.J.S.A. 2C:39-7(b)(2). The purpose of both statutes is to protect domestic
violence victims and to keep guns out of the hands of those who have perpetrated
acts of domestic violence. Hernandez assaulted a woman with whom he had
been in a dating, romantic relationship. His emotional attachment was so
significant that he was willing to violate the prohibition against dating a junior
officer and disregard a direct command from a superior to end the relationship.
When the SPC ended the relationship, Hernandez resorted to violence when he
saw her at a club. Under these circumstances, we do not find that the Federal
Gun Control Act and New Jersey's Certain Persons Not to Have Weapons Statute
cannot consistently stand together.
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The ALJ's and Commission's decisions are supported by sufficient
credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). The
Commission's final determination is not arbitrary, capricious or unreasonable.
Karins v. Atl. City, 152 N.J. 532, 540 (1998). Hernandez's arguments to the
contrary are without sufficient merit to warrant further discussion. R. 2:11-
3(e)(1)(E).
Affirmed.
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