                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3099-11T3

                                        APPROVED FOR PUBLICATION

IN THE MATTER OF FREDDIE B.                   March 14, 2014
FRAZIER, DEPARTMENT OF
CORRECTIONS.                              APPELLATE DIVISION
________________________________

         Argued Telephonically      January    24,   2014      –
         Decided March 14, 2014

         Before Judges Fisher,1 Koblitz and O'Connor.

         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).

    The opinion of the court was delivered by

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

1
  Judge Fisher did not participate in oral argument.               He joins
the opinion with counsel's consent. R. 2:13-2(b).
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.

    This     is   the    thirteenth     year    of   litigation,    and   third

appeal, in this matter.           Frazier was arrested in 1999.       Although

indicted for much more serious crimes2, 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

2
  He was indicted for third-degree theft, N.J.S.A. 2C:20-3 and
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a).



                                        2                             A-3099-11T3
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

(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           (internal        quotation         marks
               omitted).]

Although       reversing       his     removal,         we    remanded       because       his

conviction might warrant other disciplinary action.                           Id. at 520.

       The     DOC    then    amended        its    PNDA,     claiming       Frazier       was

disqualified         from    possessing      a     firearm    under    the     New     Jersey

analog    to    the     Lautenberg      Amendment,           the    2004    amendment       to

N.J.S.A. 2C:39-7(b)(2), and the Civil Service Commission agreed,

finding that he was prohibited under State law from carrying a

firearm.       We again reversed, determining that the last-minute




                                              3                                      A-3099-11T3
addition of the New Jersey law to the PNDA was procedurally

improper.      After the second reversal, the DOC served a new PNDA

on Frazier, again alleging that he could not perform his job

because the 2004 New Jersey law prohibited him from possessing

or    using    a   firearm    due    to    a    disorderly      persons     conviction

involving domestic violence.               It is this determination that we

now affirm.

       Our    role    in     reviewing      a     final    administrative         agency

decision is limited.           In re Taylor, 158 N.J. 644, 656 (1999).

We must defer to a final agency decision unless it is arbitrary,

capricious, unsupported by substantial credible evidence in the

record, or in violation of the express or implicit legislative

policy.       Id. at 656-57.        We must determine whether an agency's

findings      could    have    been       "'reached       on   sufficient       credible

evidence present in the record' considering 'the proofs as a

whole,' with due regard to the opportunity of the one who heard

the   witnesses       to   judge    of    their    credibility."          Id.    at   656

(quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).                            If

we find sufficient credible evidence in the record to support

the agency's conclusions, then we must affirm even if we would

have reached a different result.                    Clowes v. Terminix Int'l,

Inc., 109 N.J. 575, 588 (1981).                 Despite high deference, we must

set aside a decision if an independent review of the record




                                            4                                   A-3099-11T3
satisfies us that the finding was clearly mistaken or erroneous,

L.M. v. Div. of Med. Assist. & Health Servs., 140 N.J. 480, 490

(1995).

                                        I

    Frazier argues that this most recent PNDA is barred by res

judicata,      collateral      estoppel     and      the    entire    controversy

doctrine.      He    also   claims   that     the    PNDA   seeks    to   illegally

impose    an   ex   post    facto   penalty    and   also    fails    because    the

statute has an exemption for law enforcement officers while on

duty.     None of the issues raised by Frazier was raised in the

administrative proceedings.           Our Supreme Court has stated that

appellate courts "will decline to consider questions or issues

not properly presented to the trial [forum] when an opportunity

for such a presentation is available 'unless the questions so

raised on appeal go to the jurisdiction of the trial [forum] or

concern matters of great public interest.'"                    Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973) (internal citations

omitted).      Although raised on appeal for the first time, given

the complicated procedural history and significant ramifications

for Frazier and others, we will address these issues in the

interest of justice.

    Frazier claims that our 2011 decision gave finality to his

claim that the DOC could not remove him based on N.J.S.A. 2C:39-




                                        5                                  A-3099-11T3
7(b)(2),        asserting   we     determined         in    that       opinion    that      the

evidence presented failed to establish his conviction involved

domestic violence.           Although he raised that argument                          in his

second appeal, we reversed based on a procedural defect.                                      We

stated that Frazier was "arrested as a result of an incident

involving        his    girlfriend"       and       declined      to    address       whether

Frazier's conviction was one involving domestic violence.                                   The

principles of collateral estoppel and res judicata do not assist

Frazier     because      neither    we,       nor    any    other      court     or   agency,

determined his conviction did not involve domestic violence.                                  To

the contrary, in his first appeal Frazier conceded the incident

involved his "live-in girlfriend."                         Frazier, supra, 392 N.J.

Super. at 518.          Having conceded that fact in 2007 in this same

litigation, he cannot now raise the issue as unproven.

                                              II

       Frazier also argues that applying the 2004 amendment to a

1999      conviction     violates       the     United      States      and    New     Jersey

constitutional prohibitions against ex post facto laws.                                    U.S.

Const. art. 1, § 9, cl. 3; U.S. Const. art. 1 § 10, cl. 1; N.J.

Const. art. IV, § 7, P 3; see Doe v. Portiz, 142 N.J. 1, 42-43

n.10 (1995) (explaining that New Jersey interprets its ex post

facto clause consistent with federal law).                          For a criminal law

to   be    ex    post   facto,     it   must:         (1)    be     "retrospective"          in




                                              6                                       A-3099-11T3
applying     to        events     occurring       before           its   enactment        and    (2)

disadvantage "the offender affected by it."                                   State v. Natale,

184 N.J. 458, 491 (2005) (internal citations and quotation marks

omitted).         N.J.S.A. 2C:39-7(b)(2), the applicable part of the

"Certain Persons Not to Have Weapons" statute, states that a

person "having been convicted" of a "disorderly persons offense

involving domestic violence, whether armed or not armed . . .

who purchases, owns, possesses or controls a firearm is guilty

of a crime of the third degree."

      The    Eighth         Circuit      decided         a     similar         ex    post       facto

challenge to the Lautenberg Amendment.                               In United States v.

Pfeifer, 371 F.3d 430, 436 (8th Cir. 2004), the court held that

the   Lautenberg         Amendment's         prohibition            on   gun       ownership     and

possession        was    not    applied      ex       post    facto      to    a    defendant      in

possession        of    a   gun    who      had       been    convicted        of    a    domestic

violence misdemeanor prior to the passage of the amendment.                                      The

defendant was convicted of violating a South Dakota statute for

attempting to "cause bodily injury" to his wife seventeen years

before      the     Lautenberg         Amendment's            passage         for     using      and

possessing a firearm.                 Id. at 433-36.                The court, relying on

precedent from other federal circuits, held that the law is "not

retroactive simply because it 'draws upon antecedent facts for

its   operation.'"              Id.    at    436.            The    reasoning        in     Pfeifer




                                                  7                                       A-3099-11T3
upholding      the   defendant's         conviction     applies   here       as   well.

Frazier's disqualification because he is unable to legally use a

firearm does not violate the Ex Post Facto Clause of the state

or federal constitution.

                                           III

      Frazier claims also that the DOC's fragmented litigation

based on the "same identical, exact core facts" serves to bar

the   current    proceeding.         The     entire    controversy     doctrine      is

codified in Rule 4:30A, which provides the "nonjoinder of claims

required to be joined by the entire controversy doctrine shall

result in the preclusion of the omitted claims . . . ."                             Our

Supreme     Court     recognizes      that       the   doctrine   "encompasses         a

mandatory rule for the joinder of virtually all causes, claims

and   defenses       related   to    a    controversy      between     the    parties

engaged in litigation."             Cogdell v. Hospital Ctr., 116 N.J. 7,

16 (1989).      In determining whether a prior claim or a successive

claim constitutes a controversy such that the successive claim

should    be   barred,    "the   central         consideration    is   whether      the

claims against the different parties arise from related facts or

the same transaction or series of transactions."                       DiTrolio v.

Antiles, 142 N.J. 253, 267 (1995).

      While the doctrine is broad, its "boundaries . . . are not

limitless."      Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142




                                            8                                 A-3099-11T3
N.J.   310,      323    (1995).      The   Court    explained       that   the    entire

controversy doctrine does not bar "component claims that are

unknown, unarisen, or unaccrued at the time of the original

action."      Ibid.      Frazier's disqualification under New Jersey law

from possessing a firearm did not arise until 2004 when N.J.S.A.

2C:39-7(b)(2) took effect.                The DOC could not have joined this

claim in its first 2001 PNDA because the New Jersey amendment

did not yet exist.              When the DOC attempted to amend the 2001

PNDA   to   include       N.J.S.A.    2C:39-7(b)(2)        as   a   reason   for       his

removal     in     2008,       we   held    that    such    a   modification           was

procedurally deficient because proper notice had not been given

to Frazier.        Although the DOC could have filed a new PNDA based

on State law sooner, the delay in amending the PNDA does not

constitute a violation of the entire controversy doctrine in

these circumstances.            As the Attorney General notes, for reasons

of safety, a corrections officer must be able to legally possess

a   firearm      to    adequately     perform      his   duties.       Neither       this

requirement nor enforcement of the 2004 criminal statute can be

waived by the DOC.

                                            IV

       Frazier        argues   in   his    final    substantive       argument       that

N.J.S.A.      2C:39-7(b)(2)         contains       an    exemption     codified         in

N.J.S.A. 2C:39-7(b)(3), which reads in pertinent part:




                                            9                                    A-3099-11T3
            A person whose firearm is seized pursuant to
            the "Prevention of the Domestic Violence Act
            of 1991," . . . (2C:25-17 et seq.) . . . who
            purchases, owns, possesses or controls a
            firearm is guilty of a crime of the third
            degree, except that the provisions of this
            paragraph shall not apply to law enforcement
            officers while actually on duty . . .

            [(Emphasis added).]

This provision does not apply to Frazier as he did not have a

firearm    seized    pursuant      to   the    Domestic    Violence     Act.     See

2C:25-21(d).        The Legislature did not exempt law enforcement

officers    from    the    provision      of    N.J.S.A.    2C:39-7(b)(2)       that

prohibits the possession of a firearm by anyone with a criminal

conviction for a domestic violence offense.                     We must interpret

statutes as they are written.                 Hardy ex re. Dowdell v. Abdul-

Matin,     198   N.J.     95,    101    (2009)    (stating       that   "the   best

indicators" of Legislative intent are the "plain words of the

statute").

    We recognize that the DOC should have litigated this matter

more efficiently so that Frazier did not have to endure many

years of litigation.            We also understand that Frazier may well

not have pleaded guilty in 1999 had he known the guilty plea

would cost him his job years later.               However, when enacting the

2004 amendment, the Legislature chose to expand the statute to

prohibit     possession     of     a    firearm    by     any    person,   without

exception, who was convicted at any time of a disorderly persons



                                         10                                A-3099-11T3
offense involving domestic violence.   Our decision gives force

to that intent.

    Affirmed.




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