On appeal from a Final Decision of the Division of State Police.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Simonelli.
Appellant Douglas Rettschlag appeals from a May 31, 2007 determination by Major Francis J. White, Commanding Officer of the New Jersey State Police Identification and Information Technology Section, rendered under the authority of Superintendent Colonel Joseph R. Fuentes, that Rettschlag's conviction for fourth degree aggravated criminal sexual contact met the federal definition of a felony and the New Jersey definition of a crime. We affirm.
The facts are undisputed. A grand jury indicted Rettschlag on two counts of third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7), and one count of aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3a. He pled guilty to fourth degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3b. This conviction is reflected as a felony conviction on Rettschlag's New Jersey Criminal History Detailed Record (Criminal History Record).
Rettschlag applied for employment as a truck driver. His application was denied because he had been convicted of a felony. He wrote to the State Police and asked that it reclassify his offense as a misdemeanor.
On appeal, Rettschlag argues that his conviction should be reclassified a misdemeanor because the Code of Criminal Justice treats crimes of the fourth degree as misdemeanors, not felonies, and because his offense was a misdemeanor at common law. We disagree.
Crimes in New Jersey are not designated as either misdemeanors or felonies. Rather, the criminal code designates crimes as first, second, third, or fourth degree. N.J.S.A. 2C:1-4a. Where provisions outside of the criminal code declare an offense to be a misdemeanor, that offense is classified as a disorderly persons offense if the maximum penalty is six months imprisonment or less. N.J.S.A. 2C:1-4c. A fourth degree crime is punishable by a term of imprisonment not to exceed eighteen months. N.J.S.A. 2C:43-6a(4). Offenses that are punishable by imprisonment for more than one year are considered common law felonies. State v. Doyle, 42 N.J. 334, 349 (1964) (citing State v. Smith, 37 N.J. 481, 494 (1962), cert. denied, 374 U.S. 835, 83 S.Ct. 1879, 10 L.Ed. 2d 1055 (1963)); see also Serio v Allstate Ins. Co., 210 N.J. Super. 167, 172-73 (App. Div. 1986) (noting plaintiff who committed a fourth degree offense of death by auto, N.J.S.A. 2C:11-5, could have been found to have committed a crime equivalent to a felony and thus was ineligible for PIP benefits).
Here, appellant pled guilty to a fourth degree crime, which was punishable by a term of imprisonment not to exceed eighteen months. His Criminal History Record accurately designates his fourth degree conviction as equivalent to a common law felony. His legal contentions to the contrary lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
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