Stephen Margiotta v. New Jersey Department of Education, Office of Student Protection. 01/12/2022, (#2-22)

2-22
New Jersey Commissioner of Education
Final Decision
Stephen Margiotta,
Petitioner,
v.
New Jersey Department of Education, Office of
Student Protection,
Respondent.
Synopsis
Petitioner appealed the decision of the respondent New Jersey Department of Education, Office of Student
Protection (OSP), disqualifying him from employment with any educational institution under the
supervision of the Department of Education. Petitioner had been involved in a motor vehicle accident in
2017, in which his car hit a guardrail, struck two trees, and struck another vehicle. Petitioner contended
that he had been unable to breathe, blacked out, and has no memory of the accident. A person in the
other vehicle died as a result of the crash. Petitioner subsequently pled guilty to reckless vehicular
homicide, a crime of the third degree in violation of N.J.S.A. 2C:11-5(b)(5), for failure to maintain a lane.
The ALJ found, inter alia, that: the statute governing disqualification, N.J.S.A. 18A:6-7.1(c)(1), disqualifies
individuals who are convicted of “a crime involving the use of force or the threat of force to or upon a
person or property including, but not limited to, robbery, aggravated assault, stalking, kidnapping, arson,
manslaughter and murder.”; petitioner’s conduct in failing to maintain a lane did not involve force or the
threat of force, nor was it a gross deviation from the standard of conduct that a reasonable person would
observe in a similar situation. The ALJ concluded that the petitioner should not be disqualified from
employment in public education.
Upon review, the Commissioner concurred with the ALJ that petitioner’s conviction for reckless vehicular
homicide for failure to maintain a lane does not warrant disqualification from employment in public
education. The Commissioner found that while petitioner’s conduct might be considered reckless under
N.J.S.A. 2C:11-5(b)(5) with regard to his failure to maintain a lane, it does not demonstrate force or threat
of force by petitioner and is not on the same level as the crimes enumerated in N.J.S.A. 18A:6-7.1(c)(1), i.e.
robbery, aggravated assault, stalking, kidnapping, arson, manslaughter and murder. Accordingly, the OSP’s
decision to disqualify petitioner from public education employment was reversed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It
has been neither reviewed nor approved by the Commissioner.

OAL Dkt. No. EDU 11575-19
Agency Dkt. No. 157-7/19
New Jersey Commissioner of Education
Final Decision
Stephen Margiotta,
Petitioner,
v.
New Jersey Department of Education, Office of
Student Protection,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed, as have the exceptions filed by the New Jersey Department of
Education, Office of Student Protection (OSP), pursuant to N.J.A.C. 1:1-18.4. The petitioner did
not file a reply.
In this matter, petitioner challenges his permanent disqualification from employment
with an educational institution under the supervision of the Department of Education.
Petitioner was involved in a motor vehicle accident on September 23, 2017, in which his car hit
a guardrail, struck two trees, and struck a vehicle. Petitioner contends that he felt like he could
not breathe, took a deep breath, and then does not remember the accident. A person in the
other vehicle died as a result of the crash. In June 2019, petitioner pled guilty to reckless
vehicular homicide, a crime of the third degree, in violation of N.J.S.A. 2C:11-5(b)(5), for failure
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to maintain a lane.1 Petitioner also pled guilty to assault by auto, a crime of the fourth degree,
in violation of N.J.S.A. 2C:12-1(c)(1), which is not a disqualifying offense. On June 18, 2019, the
OSP sent a permanent disqualification notice to petitioner, which petitioner appealed.
Following a hearing, the Administrative Law Judge (ALJ) found that petitioner should not
be disqualified from employment in public education. The statute governing disqualification,
N.J.S.A. 18A:6-7.1(c)(1), disqualifies individuals who are convicted of “a crime involving the use
of force or the threat of force to or upon a person or property including, but not limited to,
robbery, aggravated assault, stalking, kidnapping, arson, manslaughter and murder.” The ALJ
found petitioner’s conduct in failing to maintain a lane did not involve force or the threat of
force, nor was it a gross deviation from the standard of conduct that a reasonable person would
observe in a similar situation.
In its exceptions, the OSP argues that by pleading guilty to reckless vehicular homicide in
the third degree, petitioner conceded that he was reckless in failing to maintain a lane. The
OSP notes that the Commissioner has previously determined that a third-degree crime
involving the use of force, even when caused by recklessness, falls within the purview of the
disqualification statute. As such, the OSP argues that petitioner recklessly operated a motor
vehicle by failure to maintain his lane, and the force associated with the impact caused a death,
such that his conduct warrants permanent disqualification from teaching.
As a threshold matter, when there is a challenge to a disqualification determination by
the Office of Student Protection, the Commissioner is not legally mandated to give deference to
1 N.J.S.A. 2C:11-5(b)(5) provides that: “Reckless Vehicular homicide is a crime of the third degree if the defendant
proves by a preponderance of the evidence that the defendant did not commit any conduct constituting driving a
vehicle or vessel recklessly other than failing to maintain a lane in violation of R.S.39:4-88.”

3
her staff, but instead determines if the finding was legally appropriate. It is important to
recognize that a decision by the OSP, or any office within the Department, is not akin to the
appellate review of a final agency decision, which is entitled to an arbitrary, capricious or
unreasonable standard of review. Moreover, where the Department of Education has limited
the scope of review of a subordinate office or division, it has done so by regulation, i.e. appeals
filed under N.J.A.C. 6A:4 challenging a decision of the State Board of Examiners
revoking/suspending a certificate, or a decision of the School Ethics Commission. See, Board of
Trustees of the Passaic County Elks Cerebral Palsy Center v. New Jersey Dept. of Educ.,
Office of Fiscal Accountability and Compliance, Commissioner’s Decision No. 334-14, dated
August 14, 2014 (finding that a decision of the Office of Fiscal Accountability and Compliance is
not given deference by the Commissioner); Jessica Walder v. New Jersey Department of
Education, State Board of Examiners, Commissioner’s Decision No. 503-14, decided
December 29, 2014 (finding that the Commissioner does not give deference to a decision of the
State Board of Examiners denying a request for issuance of a certificate). Therefore, the
appropriate standard of review of the OSP’s June 18, 2019 decision to disqualify petitioner from
teaching is whether the decision is consistent with the applicable statutory and regulatory
provisions.
Upon review, the Commissioner agrees with the ALJ that petitioner’s conviction for
reckless vehicular homicide for failure to maintain a lane does not warrant disqualification from
employment in public education. Pursuant to N.J.S.A. 18A:6-7.1(c)(1), an individual shall be
permanently disqualified from public education employment if he or she is convicted of “[a]
crime involving the use of force or the threat of force to or upon a person or property including,

4
but not limited to, robbery, aggravated assault, stalking, kidnapping, arson, manslaughter, and
murder.” Petitioner’s conviction for reckless vehicular homicide in the third degree means that
petitioner “did not commit any conduct constituting driving a vehicle or vessel recklessly other
than failing to maintain a lane.” N.J.S.A. 2C:11-5(b)(5). While such a determination is very fact
specific, the Commissioner finds that petitioner’s conduct in failing to maintain a lane fails to
rise to the level of “force or threat of force” as required by N.J.S.A. 18A:6-7.1(c)(1).
The OSP relies on two cases that are distinguishable from the present matter. First, in
Erin Markakis v. New Jersey Department of Education, Office of Criminal History Review,
Commissioner’s Decision No. 369-11, decided September 1, 2011, the petitioner pled guilty to
third degree assault by auto in violation of N.J.S.A. 2C:12-1(c)(2) after she drove with a blood
alcohol level of .197% (more than twice the legal limit), crossed over the center line of the road
into oncoming traffic, crashed into a vehicle containing a woman and three young children,
which vehicle then collided with a third vehicle containing only the driver. All five individuals
were injured in the crash. The Commissioner in that case agreed with the ALJ that:
Petitioner was convicted of a crime, the elements of which are
driving recklessly while intoxicated, and in the course of so doing,
causing serious bodily injury. A third degree crime of assault by
auto involving drunk driving and a resulting serious injury can be
deemed to be on the same level as the crimes enumerated as
representative of those that are automatic disqualifiers. These
crimes also clearly involve the use of force or threat of force.
There is no indication in this case that the petitioner intended to
use force or threat of force, but she did act recklessly in using
force upon another person or property.
[Id. at 3.]

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The Commissioner finds that this matter is readily distinguishable from the present matter
because the reckless behavior in driving with a blood alcohol content of more than twice the
legal limit and causing injury is significantly different than petitioner’s reckless conduct in failing
to maintain a lane after blacking out, causing a fatal accident.
Second, in Olivia Howard v. New Jersey Department of Education, Office of Criminal
History Review, et al., Commissioner’s Decision No. 355-01, decided October 1, 2001, the
petitioner was applying for certification and was disqualified based on a former conviction from
1991 for death by auto, then a crime of the third degree, which is substantially equivalent to
second-degree death by vehicular homicide. In the Howard case, after meeting at a
construction site to discuss their financial difficulties, petitioner and her husband argued in
Howard’s car; when her husband left the vehicle and walked away, Howard drove after him,
catching the passenger door in a construction fence and breaking one of the door hinges. In re
Howard, 143 N.J. 526, 528 (1996). She continued to drive after her husband, going the wrong
way down two one way streets, before pulling into a parking lot where she left the car to seek
help from her husband in dealing with the broken door. Ibid. Receiving no help, petitioner got
back in the car, hit the gas and reached to close the door at the same time. Ibid. In so doing,
petitioner ran over her husband, who died from his injuries later that day. Ibid. The
Commissioner adopted the Initial Decision, which found that the petitioner’s conduct clearly
involved force and she disregarded a substantial and unjustifiable risk that her conduct could
injure or kill her husband. In the instant matter, the Commissioner finds that petitioner blacked
out while driving and failed to maintain his lane, whereas Howard hit the gas and reached to

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close the door at the same time, knowing that her husband was near the car, thereby causing a
homicide while driving in a clearly reckless manner.
The Commissioner does not find the OSP’s exceptions to be persuasive. While
petitioner’s conduct may be per se reckless under N.J.S.A. 2C:11-5(b)(5) with regard to his
failure to maintain a lane, such conduct does not demonstrate force or threat of force by
petitioner and is not on the same level as the crimes enumerated in N.J.S.A. 18A:6-7.1(c)(1),
which are robbery, aggravated assault, stalking, kidnapping, arson, manslaughter and murder.
Petitioner explained that he could not breathe and then did not remember failing to maintain
his lane and making impact with the other vehicle. Given the unique circumstances in this
matter, petitioner’s conduct in failing to maintain his lane does not warrant disqualification
under N.J.S.A. 18A:6-7.1(c)(1).
Accordingly, the Initial Decision of the OAL is adopted as the final decision in this matter.
The OSP’s June 18, 2019 decision to disqualify petitioner from employment is hereby reversed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.
January 12, 2022
January 12, 2022

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
DISMISSAL
OAL DKT. NO. EDU 11575-19
AGENCY DKT. NO. 157-7/19
STEPHEN MARGIOTTA,
Petitioner,
v.
DEPARTMENT OF EDUCATION, OFFICE OF
STUDENT PROTECTION,
Respondent.
______________________________________
John Paul Velez, Esq. for petitioner (Arbore, Velez, LLC)
Jaclyn M. Frey, Deputy Attorney General., for respondent (Andrew J. Bruck,
Acting Attorney General of New Jersey)
Record Closed: October 4, 2021 	Decided: October 14, 2021
BEFORE KIMBERLY A. MOSS, ALJ:
Petitioner, Stephen Margiotta (Margiotta or petitioner), appeals Department of
Education Office of Special Education (DOESP or respondent) decision disqualifying him
from employment for his conviction for vehicular homicide for failure to maintain lane.

OAL DKT. NO. EDU 11575-19
2
On June 19, 2019, defendant sent a permanent disqualification letter to petitioner.
Petitioner filed an appeal of 	the disqualification. The Commissioner 	of 	Education
forwarded the appeal to the Office of Administrative Law (OAL) as a contested matter. A
petition was filed with OAL on August 19, 2019. On August 13, 2019, respondent filed a
motion to dismiss the petition. Petitioner filed opposition to the motion on September 26,
2019. The Motion was denied on October 3, 2019. The hearing was held on May 5, 2021.
The parties closing briefs were filed on October 4, 2021, at which time I closed the record.
FACTUAL DISCUSSION
I FIND the following stipulated FACTS.
1. 	Petitioner received a New Jersey Elementary K-6 teaching certification in or
about 2008.
2. Petitioner was involved in a motor vehicle accident on September 23, 2017.
3. During the motor vehicle accident, petitioner’s vehicle collided with another vehicle,
resulting in the death of the driver and bodily injury to the passenger in the other
vehicle.
4. On or about January 22, 2019, petitioner was charged with reckless vehicular
N.J.S.A. 2C:11-5a, and assault by auto, a crime of the fourth degree, in violation
of N.J.S.A. 2C: homicide, a crime of the second degree, in violation of 12-1c (1).2
5. 	On or about February 19, 2019, petitioner pled guilty to reckless vehicular
homicide, a crime of the third degree, in violation of N.J.S.A. 2c:11-5b (5), and
assault by auto, a crime of the fourth degree, in violation of N.J.S.A. 2C:12-1c (1).
6. 	Under N.J.S.A. 2C:11-5b (5) reckless vehicular homicide is a crime of the third
degree if the defendant proves by a preponderance of the evidence that the
defendant did not commit any conduct constituting driving a vehicle or vessel
recklessly other than failing to maintain a lane in violation of R.S. 39:4-88.
7. 	Under N.J.S.A. 2C:12-1c (1) a person is guilty of assault by auto or vessel when
the person drives a vehicle or vessel recklessly and causes either serious bodily
injury or bodily injury to another. Assault by auto or vessel is a crime of the fourth
degree if serious bodily injury results.

OAL DKT. NO. EDU 11575-19
3
8. 	By 	letter 	dated 	June 	18, 	2019, 	respondent 	notified 	petitioner 	that 	he 	was
permanently 	disqualified 	from 	serving 	in 	any 	position 	with 	any 	educational
institution under the supervision of the Department of Education or with a
contracted service provider under contract with said school or educational facility,
as a result of his conviction for a disqualifying crime.
9. 	On or about June 28, 2019, a judgment of conviction was entered by the Superior
Court of New Jersey, Morris County reflecting the final charges from the guilty plea
and sentencing.
TESTIMONY
James Scaringelli
James Scarigelli (Scaringelli) is an investigator for the DOESP. He has worked
there since October 2008. He previously was a police officer. As an investigator, he
checks the criminal history of employees and prospective employees. This includes
checking fingerprints and determining if there are pending charges or convictions that
would disqualify the person. Anyone who has been fingerprinted since February 2003,
their records are keep by the state police.
The Office of Student Protection receives a notification from the state police if an
employee of the Department of Education or candidate for employment has been
arrested. N.J.S.A. 18A:6-7.1 lists crimes that if convicted, a person is disqualified from
employment 	with 	the 	Department 	of 	Education. 	The 	list 	is 	not 	exhaustive. 	The
determination is next made based on the charge and conviction whether the crime is a
disqualifying charge according to the statute.
The state police notify the DOE of an arrest of an employee. Scaringelli received
the state police notification of arrest for Margiotta, who was charged with vehicular
homicide. The notification lists Margiotta as a substitute teacher. Scaringelli checked with
the Department of Labor for the last eight quarters. He received notification of Margiotta’s
employment status from his employer. He spoke with petitioner and petitioner’s attorney.

OAL DKT. NO. EDU 11575-19
4
On June 18, 2019, petitioner informed Scaringelli that he was pleading to vehicular
homicide. Scaringelli confirmed that through Promise Gavel. He reviewed N.J.S.A. 18A:6-
7.1, to determine if the crime was a disqualifying crime. Portion C of the statute states
any crime involving force or the use of force against a person or property is a disqualifying
offense. Scaringelli spoke to his superior Chris Carabela regarding this matter.
A 	letter 	of 	disqualification 	was 	sent 	to 	Margiotta 	on 	June 	18, 	2019. 	The
disqualifying charge was vehicular homicide-result of failure to maintain lane. Petitioner
also plead guilty to assault by auto, but it is not a disqualifying offense. Scaringelli
received the conviction notice from the state police on November 13, 2019.
Scaringelli agrees that reckless can be defined as injuring or creating a risk of
injury to an innocent person when he/she consciously disregards a substantial and
unjustifiable risk that the injury or risk of injury will result from his/her conduct. He agrees
that risk is a gross deviation from a standard of conduct.
N.J.S.A. 18A: 6-7.1 (c) disqualifying crimes lists crimes involving the use of force
or the threat of force to or upon a person or property including, but not limited to, robbery,
aggravated assault, stalking, kidnapping, arson, manslaughter, and murder; the list is not
exhaustive.
Scaringelli knew that there was a change to the vehicular homicide statute N.J.S.A.
2C:11-5(5) in January 2018.He looked at this statute and saw the same reckless element
as the statute had prior to the change. He spoke to his superior Carabelli about the statute
change. They both agreed that a charge petitioner plead guilty to be a disqualifying crime.
Scaringelli believes that petitioner used force when he made impact with the other vehicle
which was the cause of the accident. He did not review the police report and does not
look at the particulars of a charge.
Stephen Margiotta
Stephen Margiotta was last employed as an educator at the College Academy
Charter School from August 2018 to January 2019. He has been employed in education

OAL DKT. NO. EDU 11575-19
5
since 2008. On September 22, 2017, he was employed at the Aberdeen School in
Virginia. He had taken prescription Ambien on September 21, 2017. On September 22,
2017, he drove from Virginia to Scotch Plains, New Jersey to see his parents. He had
worked that day prior to driving to New Jersey. His parents have dementia. He arrived at
approximately eleven P.M. He slept for six to seven hours, then drove to his home in
Midland Park, which took one hour. He was in Midland Park for approximately thirty
minutes. He rested for twenty of those minutes.
As he was driving back to his parents’ home, he was in the left lane of Route 287,
going forty-five miles per hour. He took a deep breath because he felt that he could not
breath and he does not recall the accident. He does recall hitting the guardrail. He was
informed that his car struck two trees and a car. Petitioner was injured because of the
accident. When he was at the hospital, he was informed that there was a fatality.
Petitioner broke three bones in his foot, had a concussion, broke bones in his back and
had a sixteen-inch cut. He was charged with vehicular homicide on January 22, 2019.
Margiotta has had difficulty with sleeping for most of his life. He had a sleep study
done one year after the accident. It was determined that he had sleep apnea. He also
retained an accident reconstruction expert.
Margiotta plead guilty to vehicular homicide as a result of failure to maintain lane.
He was sentenced to three years’ probation and ninety days in the sheriff labor assistance
program.
New Jersey Motor Vehicle Department (Motor Vehicle) sent him a notice of
suspension of 660 days for the vehicular homicide conviction. Due to his injuries petitioner
could not drive after the accident for two years. He had a hearing at Motor Vehicle where
his suspension was reduced to time served. He had to take driver education class and
take the written and rode test before he could get his license back.
Having reviewed the testimony and evidence I FIND the following additional
FACTS:

OAL DKT. NO. EDU 11575-19
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Margiotta had been employed in education since 2008. In September 2017, he
was employed by the Aberdeen School in Virginia. On September 21, 2017, he took a
prescribed Ambien. On September 22, 2017, he taught at the Aberdeen School in
Virginia. After school, he drove from Virginia to Scotch Plane, New Jersey to his parents’
house. He arrived in New Jersey at approximately 11:30 pm on September 22, 2017. He
slept for six hours. On September 23, 2017, Margiotta drove from his parents’ home in
Scotch Planes to his home in Midland Park, New Jersey. The drive took one hour. He
stayed at his Midland Park home for thirty minutes, he rested for twenty minutes of that
time. He then began to drive back to Scotch Planes. He was traveling in he left lane of
Route 287, going forty-five miles per hour. He began to feel like he could not breath and
took a deep breath. He does not remember the accident, although he does remember
hitting the guardrail. Margiotta’s was told that after striking the guardrail, car went across
the road, struck two trees, and struck a vehicle. A person in the other vehicle died as a
result of injuries sustained in the accident. Margiotta broke three bones in his foot, broke
bones in his back, and sustained a concussion among other injuries because of the
accident.
On February 19, 2019, Margiotta plead guilty before the Honorable David Ironson,
J.S.C. in Morris County Criminal Court to Third degree vehicular homicide-result of failure
to maintain lane and fourth degree assault by auto-vessel-reckless serious bodily injury.
On or about June 18, 2019, Margiotta informed Scaringelli that he pled guilty to vehicular
homicide. On June 21, 2019, Margiotta was sentenced by Judge Ironson to three years’
probation and ninety days to be served in the sheriff’s labor assistance program. On June
18, 2019, a permanent disqualification letter was sent to Margiotta by Carl Carabella,
Manager of DOESP.
On or about January 19, 2019, the Motor Vehicle sent Margiotta an Order of
suspension because of his involvement in a fatal accident on September 23, 2017. He
was required to surrender his driver’s license. immediately. The proposed suspension
was 660 days. A hearing was held on the motor vehicle suspension on October 3, 2019.
The result of the DMV hearing was that Margiotta’s driving privileges were suspended for
318 days effective November 7, 2019. In addition, he had to pass the motor vehicle road
and written test.

OAL DKT. NO. EDU 11575-19
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LEGAL ANALYSIS AND CONCLUSION
N.J.S.A. 2C:11-5 (b)(5) provides:
Reckless Vehicular homicide is a crime of the third degree if the defendant
proves by a preponderance of the evidence that the defendant did not
commit any conduct constituting driving a vehicle or vessel recklessly other
than failing to maintain a lane in violation of R.S.39:4-88.
N.J.S.A. 18A :6-7.1(c) provides:
A facility, center, school, or school system under the supervision of the
Department of Education and board of education which cares for, or is
involved in the education of children under the age of 18 shall not employ
for pay or contract for the paid services of any teaching staff member or
substitute 	teacher, 	teacher 	aide, 	child 	study 	team 	member, 	school
physician, school nurse, custodian, school maintenance worker, cafeteria
worker, school law enforcement officer, school secretary or clerical worker
or any other person serving in a position which involves regular contact with
pupils 	unless 	the 	employer 	has 	first 	determined 	consistent 	with 	the
requirements and standards of this act, that no criminal history record
information 	exists 	on 	file 	in 	the 	Federal 	Bureau 	of 	Investigation,
Identification Division, or the State Bureau of Identification which would
disqualify that individual from being employed or utilized in such capacity or
position. An individual employed by a board of education or a school bus
contractor holding a contract with a board of education, in the capacity of a
school bus driver, shall be required to meet the criminal history record
requirements pursuant to section 6 of P.L.1989, c.104 (C.18A:39-19.1). A
facility, center, school, or school system under the supervision of the
Department of Education and board of education which cares for or is
involved in the education of children under the age of 18 may require
criminal history record checks for individuals who, on an unpaid voluntary
basis, provide services that involve regular contact with pupils. In the case
of school districts involved in a sending-receiving relationship, the decision
to require criminal history record checks for volunteers shall be made jointly
by the boards of education of the sending and receiving districts.
An individual, except as provided in subsection g. of this section, shall be
permanently disqualified from employment or service under this act if the individual’s
criminal history record check reveals a record of conviction for any crime of the first or
second degree; or
c. (1) A crime involving the use of force or the threat of force to or upon a
person or property including, but not limited to, robbery, aggravated assault,
stalking, kidnapping, arson, manslaughter, and murder; or
(2) A crime as set forth in chapter 39 of Title 2C of the New Jersey Statutes,
a third degree crime as set forth in chapter 20 of Title 2C of the New Jersey
Statutes, or a crime as listed below:

OAL DKT. NO. EDU 11575-19
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Recklessly endangering another person N.J.S.2C:12-2
Terroristic threats N.J.S.2C:12-3
Criminal restraint N.J.S.2C:13-2
Luring, enticing child into motor vehicle, structure, or isolated area
P.L.1993, c.291 (C.2C:13-6)
Causing or risking widespread injury or damage N.J.S.2C:17-2
Criminal mischief N.J.S.2C:17-3
Burglary N.J.S.2C:18-2
Usury N.J.S.2C:21-19
Threats and other improper influence N.J.S.2C:27-3
Perjury and false swearing N.J.S.2C:28-3
Resisting arrest N.J.S.2C:29-2
Escape N.J.S.2C:29-5
Bias intimidation N.J.S.2C:16-1; or
(3) Any crime of the fourth degree involving a victim who is a minor; or
(4) Conspiracy to commit or an attempt to commit any of the crimes described in
this act.
Recklessly endangering another person N.J.S.2C:12-2 was repealed in January
2016, prior to the accident in this case.
The New Jersey Model Criminal Jury Charge for vehicular homicide define
reckless as:
A person acts recklessly when he/she consciously disregards a substantial
and unjustifiable risk that death will result from his/her conduct. The risk
must be of such a nature and degree that, considering the nature and
purpose of the defendant's conduct and the circumstances known to
him/her, disregard of the risk involves a gross deviation from the standard
of conduct that a reasonable person would observe in the defendant's
situation.
In other words, in order for you to find that the defendant drove a vehicle [or
vessel] recklessly, the State must prove beyond a reasonable doubt that the
defendant was aware he/she was operating a vehicle [or vessel] in such a manner
or under such circumstances as to create a substantial and unjustifiable risk of
death to another. The State must also prove beyond a reasonable doubt that the
defendant consciously disregarded this risk and that the disregard of the risk was
a gross deviation from the way a reasonable person would have conducted
himself/herself in the situation.

OAL DKT. NO. EDU 11575-19
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Recklessness is a condition of the mind that cannot be seen and that can often be
determined only from inferences from conduct, words, or acts. It is not necessary for the
State to produce a witness to testify that the defendant stated that he/she acted with a
particular state of mind. It is within your power to find that proof of recklessness has been
furnished beyond a reasonable doubt by inferences that may arise from the nature of the
facts and circumstances surrounding the conduct in question.
In Markakis v. N.J. State Dept of Educ., Office of Crim Hist Rev. OAL DKT. No.
EDU 	13275-10 	Initial 	Decision 	(June 	11, 	2011) 	adopted 	Comm’r 	Final 	Decision
(September 1, 2011) Markakis was driving with a blood alcohol of 197 which is twice the
legal limit. While driving, she crossed over the center lane into oncoming traffic and
collided with a sport utility van.
Markakis was convicted of a crime, the elements of which are driving recklessly
while intoxicated, and in the course of so doing, causing serious bodily injury. A third-
degree crime of assault by auto involving drunk driving and a resulting serious injury can
be deemed to be on the same level as the crimes enumerated as representative of those
that are automatic disqualifiers. These crimes also clearly involve the use of force or threat
of force. There is no indication in this case that the petitioner intended to use force or
threat of force, but she did act recklessly in using force upon another person or property.
This can be distinguished from the present case because Markakis was driving
while intoxicated and Margiotta was not driving while intoxicated.
In Olivia C. Howard v. Carl H. Carabelli OAL Dkt EDU 10197-00 Initial Decision
(August 13, 2001) adopted Comm’r Final Decision (October 1, 2021) the petitioner
applied for a teaching certificate. A criminal record check revealed that on February 15,
1991, petitioner was convicted by a jury of death by auto, N.J.S.A. 2C:11-5, then a crime
of the third degree. In 1995, this statute, entitled death by vehicular homicide, was
changed to raise the crime to a second-degree offense. It defines criminal homicide as
vehicular homicide when it is caused by driving a vehicle or vessel recklessly. The facts
in that matter were:

OAL DKT. NO. EDU 11575-19
10
On July 3, 1989, the Howards met to discuss some of their financial
difficulties. Using Mrs. Howard's car, they drove to a construction site so
they could talk. An argument ensued. Mr. Howard, who was in the front
passenger seat, exited the car. When Mrs. Howard backed up the car to
follow her husband, the passenger door "flew open" and became caught in
some fencing at the construction site. The door hinge broke, and the door
dragged on the ground as Mrs. Howard drove.
Mrs. Howard followed her husband as he walked away. After going the
wrong way down two one-way streets, Mrs. Howard pulled into the driveway
of a health clinic. When Mr. Howard approached the car, she got out to seek
his assistance with the door. Having had no success, Mrs. Howard got back
into the car, hit the gas, and reached for the door at the same time. She ran
over her husband, who died later that day as a result of his injuries. In re
Howard 143 NJ 526 (1986).
In that matter, the Court stated that although respondent characterizes this
tragedy as an accident, she was convicted of criminal homicide caused by
driving a vehicle recklessly. N.J.S.A. 2C:11-5. Under this statute, a person
acts 	recklessly 	when 	she 	consciously 	disregards 	a 	substantial 	and
unjustifiable risk that her driving will result in someone's death. The disputed
conduct must involve a gross deviation from the standard of conduct that a
reasonable person would observe in the actor's situation. N.J.S.A. 2C:2-2b
(3). Thus, despite her contention to the contrary, the jury found that
respondent disregarded a substantial and unjustifiable risk that her conduct
would kill her husband. Ibid. It was determined that Howard’s crime involved
the use of force and threat of force upon a person.
In the Howard matter Howard hit the gas and reached to close the door at the
same time knowing that her husband was near the car causing the homicide. Driving in
this manner is clearly reckless.

OAL DKT. NO. EDU 11575-19
11
In the case at bar, an issue is whether failure to maintain lane is a use of force or
threat of force. The crimes listed in N.J.S.A.18A:6-7.1. (c) robbery, aggravated assault,
stalking, kidnapping, arson, manslaughter, and murder are crimes where physical force
or intimidation or threats of the use of force are listed. Margiotta while he was driving had
difficulty breathing. He remembers hitting a guardrail and being informed that his vehicle
struck two tree and a car and that there was a fatality.
Reckless vehicular homicide because of failure to maintain lane does not involve
a gross deviation from the standard of conduct that a reasonable person would observe
in the actor's situation.
I CONCLUDE that Margiotta did not use force or threat of force and his conduct of
failure to maintain lane is not a gross deviation from the standard of conduct that a
reasonable person would observe in the actor's situation.
Accordingly, it is ORDERED that respondent’s decision to disqualify Margiotta from
employment for his conviction for vehicular homicide for failure to maintain lane is hereby
REVERSED.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified, or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. If the Commissioner of the Department of Education
does not adopt, modify, or reject this decision within forty-five days and unless such time
limit is otherwise extended, this recommended decision shall become a final decision in
accordance with N.J.S.A. 52:14B-10.

OAL DKT. NO. EDU 11575-19
12
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked “Attention: 	Exceptions.” 	A copy of any exceptions must be sent to the
judge and to the other parties.
DATE 	KIMBERLY A. MOSS, ALJ
Date Received at Agency: 	October 14, 2021
Date Mailed to Parties: 	October 14, 2021
ljb

OAL DKT. NO. EDU 11575-19
13
WITNESESES
For Petitioner
None
For Respondent
James Scaringelli
EXHIBITS
For Petitioner
P-1 	Not in Evidence
P-2 	Pro Se Petition of Appeal Dated June 28, 2019
P-3 	New Jersey Police Crash Investigation Report
P-4 	Not in Evidence
P-5 	Not in Evidence
P-6 	Waiver and Accusation
P-7 	New Jersey Judiciary Plea Form
P-8 	Not in Evidence
P-9 	Judgement of Conviction
P-10 	NJDMV Order of Suspension Dated January 9, 2019
P-11 	NJDMV Hearing and Petition Dated October 3, 2019
P-12 	NJDMV Order of Suspension dated November 7, 2019
P-13 	Not in Evidence
P-14 	Not in Evidence
P-15 	Not in Evidence
P-16 	Not in Evidence
P-17 	Not in Evidence
P-18 	Not in Evidence
P-19 	Not in Evidence
P-20 	Not in Evidence
P-21 	Not in Evidence
P-22 	Not in Evidence
P-23 	Not in Evidence

OAL DKT. NO. EDU 11575-19
14
P-24 	Not in Evidence
P-25 	Not in Evidence
P-26 	Not in Evidence
For Respondent
R-1 	New Jersey State Police Arrest Notification
R-2 	New Jersey Promise Gavel Charge/Disposition
R-3 	June 18, 2019, Permanent disqualification letter from Carl H. Carabelli to
Petitioner
R-4 	New Jersey State Police State Conviction Notification
R-5 	Same as Exhibit P-9