Jorge Cabral, CSC Docket No. 2018-3229

Appellant's argumentJorge Cabral requests reconsideration of the final administrative determination in In ihe Matter of Richard Gizzi, et al., Police Sergeant (CSC, decided April 18, 2018). A copy of that decision is attached hereto and incorporated herein.

As provided in the original decision, the subject examination was a two-part examination, which was administered on October 26, 2017, consisting of a video- based portion, items 1 through 30, and a multiple-choice portion, items 31 through 90. Question 66 indicated that a 15-year-old juvenile was brought into the station by Officer Gomez. The juvenile was involved in a fight and Officer Gomez tells you the juvenile will be charged with simple assault. Officer Gomez is unsure about the procedures for documenting the arrest. The question required candidates to complete the following sentence, “You should inform Officer Gomez that for criminal identification purposes, the juvenile should be...” The keyed response was option ce, “finger printed and photographed.” As indicated in Procedures for Collecting Juvenile Fingerprints and Photographs (February 1998) (Procedures), under the heading, “Responsibilities of a Law Enforcement Agency which Files Delinquency Charges (Charging Agency),” provides that when a juvenile who is 14 or older is charged with an offense that would be a crime! if committed by an adult, the charging agency shall take all reasonable steps to fingerprint the juvenile. See N.J.S.A. 2A:4A-61a(3). However, as also noted in the Procedures:

1 N.dS.A, 2C:1-4a provides that an offense defined by this code or by any other statute of this State, for which a sentence of imprisonment in excess of 6 months is authorized. constitutes a crime within the meaning of the Constitution of this State. Crimes are designated in this code as being of the first, second, third or fourth degree.

Caution: . . . In addition, juveniles who are charged with disorderly persons offenses or petty disorderly persons offenses may not be fingerprinted under N.J.S.A. 2A:4A-61a(3). ..

Given that simple assault is a disorderly persons offense,2 the Division of Test Development and Analytics determined to rekey this item to option b, “photographed only” prior to the lists being issued.

In his request, Cabral maintains that the item was rekeyed based “on the misplaced legal assumption that a simple assault is a disorderly persons offense.” In this regard, he presents that the question “DID NOT indicate where the fight took place and the question did not indicate what was the degree of the crime.” He refers to N.J.S.A. 2C:12-1f which provides:

A person who commits a simple assault as defined in paragraph (1), (2) or (3) of subsection a. of this section in the presence of a child under 16 years of age at a school or community sponsored youth sports event is guilty of a crime of the fourth degree. The defendant shall be strictly liable upon proof that the offense occurred, in fact, in the presence of a child under 16 years of age. It shall not be a defense that the defendant did not know that the child was present or reasonably believed that the child was 16 years of age or older. The provisions of this subsection shall not be construed to create any liability on the part of a participant in a youth sports event or to abrogate any immunity or defense available to a participant in a youth sports event. As used in this act, ‘school or community sponsored youth sports event’ means a competition, practice or instructional event involving one or more interscholastic sports teams or youth sports teams organized pursuant to a nonprofit or similar charter or which are member teams in a youth league organized by or affiliated with a county or municipal recreation department and shall not include collegiate, semi-professional or professional sporting events.

He argues that the question “did not contain any information that could be used to properly determine the grading of the simple assault. Specifically, the question did

* N.J.S.A. 2C:12-la provides that simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense.

not provide any information with respect where the fight took place or under what circumstances .. . Since a simple assault in the presence of a child under 16 years of age at a school or community sponsored youth event is a fourth degree crime according to Title 2C, Officer Gomez would obtain fingerprints and a photograph . .

CONCLUSION

N.J.A.C. 4A:2-1,6(b) sets forth the standards by which the Commission may reconsider a prior decision. This rule provides that a party must show that a clear material error occurred or present new evidence or additional information which would change the outcome of the case and the reasons that such evidence was not presented during the original proceeding.

In the present matter, the appellant has failed to meet the standard for reconsideration. The appellant does not present new evidence or additional information which was not presented at the original proceeding which would change the outcome of the original decision, nor has the appellant proven that a clear material error has occurred in the original decision. Accordingly, based on the record presented, the appellant has failed to support his burden of proof in this matter.

Although the appellant maintains that N.J.S.A. 2C:12-1f would be charged as a “simple assault,” it is noted that the statement which accompanied the introduction of Assembly Bill No. 440,3 which was subsequently codified as N.J.S.A. 2C:12-1f,! provided, in part:

Violent outbreaks at school and youth sports events by parents, including attacks on coaches, players and other spectators, have become more frequent in recent years, resulting in injury and disruption. These outbreaks, in addition to creating an unsafe environment for the children who are present, also promotes violence to children as a means of resolving conflict. It is the sponsor’s view that in order to counter these negative and harmful consequences, stiffer penalties should be imposed for violent behavior committed in the presence of children. Accordingly, this bill classifies simple assault as aggravated assault if the assault is committed in a fight or scuffle which the actor initiated at a school or community sponsored youth sports event, while in the presence of a child under 16 years of age.

(emphasis added).

3 See https://www.njleg.state.nj.us/2002/Bills/A0500/440_S1.PDF. Sce also Senate Bill No. 1198.

1 See P.L. 2002, c. 53, effective August 3, 2002.

As also indicated in the above noted statement, this provision was initially to be included under aggravated assault (2C:12-1b(5)th)) but the Assembly Judiciary Committee subsequently amended the bill to create a new subsection (2C:12-11).

Moreover, it is noted that the Division of Test Development and Analytics contacted Subject Matter Experts (SMEs) regarding this matter and they indicated that when a complaint is signed, the listed charge has to be as specific as possible. In this case, the SMEs noted that if the intent was to charge the juvenile under the Youth Sports provision, you would be required to indicate that specific charge (Assault at a Youth Sports Event 2C:12-1f) on the complaint, and not just Simple Assault 2C:12.5 The SMEs explained that given that N.J.S.A. 2C:12-1f elevates the offense to a fourth degree crime, the specific charge would need to be listed since it determines the procedures for processing the juvenile.

ORDER

Therefore, it is ordered that this request be denied.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.