IN THE MATTER OF FREDDIE B. FRAZIER, DEPARTMENT OF CORRECTIONS
Argued Telephonically: January 24, 2014.
On appeal from the Civil Service Commission, Docket No. 2011-4777.
Mario A. Iavicoli argued the cause for appellant Freddie B. Frazier.
Donna S. Arons, Deputy Attorney General, argued the cause for respondent Civil Service Commission ( John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, and Ms. Arons, of counsel; Nicole P. Colon, Deputy Attorney General, on the brief).
Before Judges FISHER, KOBLITZ and O'CONNOR. The opinion of the court was delivered by KOBLITZ, J.A.D.
[435 N.J.Super. 4] KOBLITZ, J.A.D.
Freddie B. Frazier appeals from a January 11, 2012 final decision of the Civil Service Commission that removed him from his position as a Senior Correction Officer because, having been convicted in 2000 of a disorderly persons offense involving domestic violence, he was statutorily prohibited from possessing or carrying a firearm, which is a requirement of his position. We affirm.
[435 N.J.Super. 5] This is the thirteenth year of litigation, and third appeal, in this matter. Frazier was arrested in 1999. Although indicted for much more serious crimes, he eventually pleaded guilty to simple assault by physical menace, N.J.S.A. 2C:12-1(a)(3). The Department of Corrections (DOC) initially served Frazier with a Preliminary Notice of Disciplinary Action (PNDA) in 2001 based on the Lautenberg Amendment to the federal Gun Control Act, 18 U.S.C.A. § 922(g)(9), which provides that any person convicted of a qualifying domestic violence offense is prohibited pursuant to federal law from possessing a firearm. Frazier was removed from his position, lost his administrative appeals and appealed to us.
Although noting that the " police report of the incident that resulted in the charges . . . shows appellant repeatedly struck his girlfriend with a closed fist and reached for his gun during the assault," we reversed the determination of the Civil Service Commission to remove him from his position because the simple assault provision to which Frazier pleaded guilty did not have " ' as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon' 18 U.S.C.A. § 921(a)(33)(A) . . . ." In re Frazier, 392 N.J.Super. 514, 520, 921 A.2d 479 (App.Div. 2007). In the opinion we noted that Frazier acknowledged the incident was one of domestic violence. We stated that
the victim, appellant's live-in girlfriend, is conceded to have been a cohabitant who was " similarly situated to a spouse." Consequently, the only issue is whether appellant's conviction satisfied the second criterion of 27 C.F.R. § 478.11 [the administrative regulation implementing the Lautenberg Amendment], that is, whether he was convicted of an offense that has, as an element, the use or attempted use of physical force (e.g., assault and battery), or the threatened use of a deadly weapon.
[ Id. at 518-19, 921 A.2d 479 (internal quotation marks omitted).]
Although reversing his removal, we remanded because his conviction might warrant other disciplinary ...