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In re Commission Proceeding on Revocation of License of Pontoriero

Superior Court of New Jersey, Appellate Division

January 7, 2015

IN THE MATTER OF COMMISSION PROCEEDING ON REVOCATION OF LICENSE OF PASQUALE PONTORIERO

Argued November 18, 2014

Approved for Publication January 7, 2015.

Page 533

[Copyrighted Material Omitted]

Page 534

On appeal from the Waterfront Commission of New York Harbor, Case No. RHA-158.

David C. Stanziale argued the cause for appellant Pasquale Pontoriero ( David C. Stanziale, L.L.C. and Jon S. Deutsch, attorneys; Mr. Deutsch, of counsel; Mr. Stanziale, of counsel and on the briefs).

Phoebe S. Sorial, General Counsel, argued the cause for respondent Waterfront Commission of New York Harbor.

Before Judges YANNOTTI, FASCIALE, and HOFFMAN.

Page 535

[439 N.J.Super. 28] OPINION

HOFFMAN, J.A.D.

Appellant Pasquale Pontoriero appeals from the September 18, 2012 order of the Waterfront Commission of New York Harbor (" Commission" ) revoking his license to work as a hiring agent on [439 N.J.Super. 29] the New Jersey waterfront. For the reasons that follow, we affirm.

I.

The relevant facts are essentially undisputed. The Commission is a bi-state agency charged with enforcing the Waterfront Commission Act, N.J.S.A. 32:23-1 to -225 (the " Waterfront Act" ), which seeks to combat corruption and organized crime on the New Jersey and New York waterfronts. N.J.S.A. 32:23-2; Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 430, 341 A.2d 593 (1975). The Commission licenses and regulates waterfront employees, including hiring agents. N.J.S.A. 32:23-12. Hiring agents select longshoremen for employment, N.J.S.A. 32:23-6, and the record indicates that, although they are regulated by the Commission, they maintain some discretion in their ability to award or deny work. In order to evaluate and administer licenses, the Legislature empowered the Commission to administer oaths and issue subpoenas to compel witness testimony. N.J.S.A. 32:23-10.

The Commission interviewed appellant, under oath, on March 30, 2010. We discern the following facts from that interview, and the record of the administrative hearing that followed. Tino Fiumara and Steven DePiro are members of the Genovese crime family (" Genovese family" ). Fiumara, a capo,[1] had a reputation for ruthlessness and violence, and oversaw the New Jersey waterfront with an " iron grip" until his death in 2010. DePiro began running the Newark ports for Fiumara in 2005.

In 1980 Fiumara was convicted of racketeering, and DePiro was convicted of racketeering in 1999. Both were convicted of

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conspiracy [439 N.J.Super. 30] to commit misprision of a felony in 2003. More recently, in 2011, DePiro was indicted for racketeering and extortion on behalf of the Genovese family. Both men have been the subject of numerous newspaper articles concerning their illegal activities.

Appellant spent time growing up at his grandmother's house in the Ironbound/Down Neck neighborhood of Newark. Appellant began working as a longshoreman on the Newark waterfront in 1995 or 1996. On October 10, 2006, the Commission awarded appellant a permanent license to work as a hiring agent.

In his spare time, appellant served as the secretary and treasurer for the Spilingese Social Club, a known gathering place of the Genovese family. Through social and family contacts, appellant was acquainted with numerous individuals known to be members or associates of the Genovese family, including Fiumara and DePiro. Appellant's father introduced appellant to Fiumara around 1985. Appellant's father also posted bail for Fiumara in 2002. Appellant was generally aware of Fiumara's association with organized crime.

In the summer of 2009, appellant attended a private birthday dinner for Fiumara. Appellant drove his father to the law offices of Fiumara's lawyer, Salvatore Alfano, in Bloomfield. There they met Dan Seratelli, his wife, Anthony Puciarello (Fiumara's cousin), and his wife. A waiting limousine drove the group to a steakhouse in Long Island, New York, where they joined Fiumara and his girlfriend. According to Alfano, when Fiumara saw appellant, he said something to the effect, " I haven't seen you in a long time. You got fat." After dinner, appellant and his father left in the limousine.

Appellant also visited DePiro at his home twice in the four or five months leading up to the March 30, 2010 hearing. Appellant alleged that on both occasions he was nearby buying sausage with his coworker Sal LaGrasso (DePiro's cousin), and, on LaGrasso's request, briefly dropped in on DePiro to catch up. LaGrasso was indicted in 2011, along with DePiro, for extorting money from waterfront employees. While appellant estimated that the visits [439 N.J.Super. 31] lasted less than twenty minutes, surveillance footage revealed that one of those visits lasted approximately one hour. Appellant denied knowing that DePiro was involved with organized crime in any way.

In September of 2010, as a result of appellant's testimony, the Commission brought administrative proceedings to revoke, cancel, or suspend appellant's hiring agent license for " association" with Fiumara and DePiro " inimical to the policies" of the Waterfront Act, contrary to N.J.S.A. 32:23-93(6) to -(7) (" the underlying statute" ), and for lack of good character and integrity, contrary to N.J.S.A. 32:23-14(a), -18(a). An Administrative Law Judge (" ALJ" ) presided over the hearings. Appellant moved to stay the proceedings pending the resolution of ongoing criminal investigations, which involved federal and state grand jury subpoenas. The ALJ denied the motion to stay, and held eight hearings between January 19, 2011 and March 7, 2012.

Notwithstanding his prior testimony, appellant invoked his Fifth Amendment privilege against self-incrimination, and refused to answer any questions. Of relevance here, appellant refused to answer questions regarding whether he had ever paid for a position at the waterfront, whether his father was known as " Tino's guy" (referring to Tino Fiumara), and whether he favored hiring particular longshoremen based on Genovese family instructions.

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The Commission presented expert testimony from Robert Stewart, former Chief of the Organized Crime Strike Force for the U.S. Attorney's Newark Office, and an expert on organized crime and the Genovese family. Stewart testified that the sole imperative of the Genovese family is to generate money for the family, and that this goal is inimical to the public interest. The Genovese family extorts money from the waterfront by instructing hiring agents to deny jobs to recalcitrant longshoremen. In this way, hiring agents are the keystone to the Genovese family's waterfront extortion rackets.

[439 N.J.Super. 32] Stewart opined that rumors of associations between waterfront supervisors and organized crime members " spread across the piers like wildfire" in the tight-knit waterfront community. He said, " The piers are rife with gossip about who is who, who is mobbed up, who you should stay away from." Stewart opined that such rumors created the belief that organized crime controlled the industry, strengthening the grip of the Genovese family over the longshoremen. Stewart added that " [t]here [was] no doubt in [his] mind" that meeting with Fiumara and DePiro " create[d] a reasonable belief" appellant was complicit in organized crime.

Alfano and Seratelli testified regarding Fiumara's birthday dinner, corroborating appellant's account. DePiro and Fiumara's girlfriend refused to testify, and the parties stipulated that, if called, they would invoke the Fifth Amendment in response to all questions. Appellant's father also refused to testify, citing poor health.

Appellant presented expert testimony from Michael Levine, a former undercover federal agent, and an expert in organized crime. Levine admitted that the scope of his expertise did not extend to administrative hearings, and that he had evaluated the case from a purely criminal perspective. Levine generally concurred with Stewart's testimony regarding the impact of rumors of associations between waterfront supervisors and organized crime members on the waterfront, and agreed that " wiseguys" publicize their criminal reputation in order to increase their power. Appellant also presented testimony from Jeffrey Schoen, the Commission's Director of Law and Licensing, and two of appellant's supervisors, all of whom testified to appellant's unblemished employment history. Additionally, appellant introduced a letter of good character from Nicholas DiMarzio, the Bishop of Brooklyn.

On August 16, 2012, the ALJ issued an extensive written opinion finding that all charges against appellant had been " established by a clear preponderance of the evidence." In interpreting the underlying statute, the ALJ adopted the Commission's definition of " association" : " to keep company, as a friend, companion or [439 N.J.Super. 33] ally." As for the definition of " inimical" contained within the same statute, the ALJ turned to the definition developed by the New Jersey Casino Control Commission (" CCC" ) under the New Jersey Casino Control Act, N.J.S.A. 5:12-1 to -233 (" CCA" ): " adverse to the public confidence and trust in the credibility, integrity and stability of casino gaming operations and in the strict regulatory process created by the [CCA]." Application of Bayshore Rebar, Inc., CCC 08-0318-SI at 52, initial decision, (March 23, 2010); accord Div. of Gaming v. Staluppi, 94 N.J.A.R.2d (Vol. 1) 31, 36 (CCC).

Next, the ALJ found that the Waterfront Act does not require proof that the association was for a criminal purpose, or that appellant knew or should have known of Fiumara and DePiro's criminal history. In particular, the ALJ ...


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