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2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
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Tuesday, August 12, 2014

STATE OF NEW JERSEY VS. ARMANDO CARREON A-5501-12T1


STATE OF NEW JERSEY VS. ARMANDO CARREON
          A-5501-12T1
This appeal requires us to consider whether a never- licensed driver may be fined and sentenced to a custodial term under the penalty provisions of N.J.S.A. 39:3-10. Because we agree that the statute allows a fine or imprisonment but not both, even for drivers, who, like defendant, have never been licensed, we reverse defendant's sentence and remand to the Law Division for resentencing. 

Sunday, August 10, 2014

STATE OF NEW JERSEY VS. DONNA JONES A-0793-13T1


STATE OF NEW JERSEY VS. DONNA JONES
          A-0793-13T1
We granted the State leave to appeal from an order that suppressed the results of a blood sample taken without a warrant prior to Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), and now reverse. Defendant caused a multiple vehicle accident, resulting in personal injuries that required hospitalization. Emergency personnel took approximately thirty minutes to extricate the unconscious defendant from her vehicle and the police investigation took several hours.
It is undisputed that the blood sample was obtained consistent with New Jersey law that existed at the time. We need not decide whether McNeely should be applied retroactively because the facts support a warrantless blood sample even if McNeely applies. Although McNeely rejected a per se exigency rule, it adhered to the totality of the circumstances analysis set forth in Schmerber v. California, 384 U.S. 757, 771-72, 86 S. Ct. 1826, 1836, 16 L. Ed. 2d 908, 920 (1966), stating the metabolization of alcohol was an "essential" factor in the analysis. Further, the Court noted that the facts in Schmerber which, like here, included an accident, injuries requiring hospitalization, and an hours-long police investigation, were sufficient to justify a warrantless blood sample. 

STATE OF NEW JERSEY VS. ALFRED J. SMITH A-0173-12T3


STATE OF NEW JERSEY VS. ALFRED J. SMITH
          A-0173-12T3
In this pre-State v. Henderson, 208 N.J. 208 (2011) matter, we reversed the denial of defendant's motion to suppress an out-of-court eyewitness identification following a show-up and vacated defendant's conviction. We determined police failed to properly comply with the recording requirements of State v. Delgado, 188 N.J. 48, 63 (2006). Specifically, they did not detail the out-of-court identification procedures or preserve the language exchanged between police and the witness prior to the show- up. More important, the motion judge made flawed factual findings following the Wade hearing and we found no support in the record for the conclusion the victim's identification of defendant was reliable. The victim's description of the man who mugged her was he was "tall and black." Scrutinizing the totality of the facts and circumstances, we rejected as unfounded the motion judge's finding that the victim had the ability to perceive and accurately identify defendant as her attacker.

IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF P.H. A-1345-13T4


IN THE MATTER OF THE EXPUNGEMENT APPLICATION OF
          P.H.
A-1345-13T4
We consider the application of the expungement statute, N.J.S.A. 2C:52-1 to -32, where petitioner was charged with a fourth degree offense but ultimately agreed to a violation of a statute for which he paid a civil penalty. Petitioner requested expungement of all criminal records, which was granted by the trial judge; records of the civil violation and the file of the NJSPCA were not subject to expungement.
The State appealed, advancing numerous reasons for reversal, primarily arguing the final disposition controls whether expungement relief is available. Maintaining the initial criminal charges were part of the same file that was disposed of through a plea agreement allowing defendant to pay a civil penalty, the State asserts expungement cannot be permitted. We disagreed and concluded petitioner was not convicted and the final disposition was not a plea agreement. Rather, the criminal charges were dismissed. Accordingly, expungement was permitted under N.J.S.A. 2C:52-6(a). 

STATE OF NEW JERSEY VS. CALVIN PRESLEY, ET AL. A-4816-12T2

STATE OF NEW JERSEY VS. CALVIN PRESLEY, ET AL.
          A-4816-12T2
In State v. McCann, 391 N.J. Super. 542 (App. Div. 2007), we announced a prospective "bright-line rule" that called for invalidating search warrants issued by a judge who was bound to recuse himself or herself based on a prior relationship. Upon being advised he had prosecuted one of the defendants when he was an assistant prosecutor, the trial judge recused himself. So, the question here is not one of recusal but of remedy. Defendants here ask us to apply McCann to the following facts: the judge prosecuted only one of the defendants; no defendant alleges the judge was biased or aware of the disqualifying facts when he issued the warrants or that there was insufficient probable cause for their issuance; and finally, the defendant prosecuted by the judge withheld the disqualifying facts while appearing before the judge on unrelated matters for "strategic" reasons for over a year. We conclude that McCann is distinguishable; the remedy sought by defendants will not serve the interests of the Code of Judicial
page5image19200 page5image19360 page5image19520 page5image19680 page5image19840

Conduct; and the appropriate remedy should be determined by what is "required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice." DeNike v. Cupo, 196 N.J. 502, 519 (2008). 

STATE OF NEW JERSEY VS. TWO THOUSAND TWO HUNDRED NINETY-THREE DOLLARS ($2,293) IN UNITED STATES CURRENCY A-4929-11T3


STATE OF NEW JERSEY VS. TWO THOUSAND TWO HUNDRED
          NINETY-THREE DOLLARS ($2,293) IN UNITED STATES
          CURRENCY
          A-4929-11T3
The State sought forfeiture of monies seized during the execution of a search warrant; defendant filed an answer denying that the monies were subject to forfeiture. The defendant was subsequently indicted, and the State obtained a stay of the civil forfeiture proceedings pending resolution of the criminal case. Defendant was found guilty by a jury and sentenced. While still incarcerated, he moved in the Special Civil Part for the return of the monies seized. He requested oral argument on the motion.
The notice of the motion hearing was sent to a post office box at Northern State Prison, the address provided by defendant in his motion papers. However, before the hearing date, the notice was returned to court marked "return to sender, insufficient address, unable to forward." Nevertheless, the matter proceeded on the hearing date with only the prosecutor present.
Without testimony, the judge entered an order denying defendant's motion and ostensibly granting the State a judgment of forfeiture.
We reversed, finding defendant was deprived due process by the Court's failure to provide notice of the hearing. In providing guidance for future proceedings, we commented on the prove of predicate facts necessary before the State may invoke the presumption contained in N.J.S.A. 2C:64-3(j). 

STATE OF NEW JERSEY VS. QUAHEEM JOHNSON A-3363-13T3

STATE OF NEW JERSEY VS. QUAHEEM JOHNSON
          A-3363-13T3
In this case of first impression we held that a trial court improperly terminates a defendant's prosecution, within the meaning of N.J.S.A. 2C:1-9, by accepting a
page6image17888 page6image18048 page6image18208 page6image18368

partial verdict where the jury is deadlocked as to greater, charged offenses, but is unanimous in its finding of guilt as to uncharged, lesser-included offenses.
An indictment charged defendant with various offenses, including murder, felony murder and armed robbery, relating to his committing two separate robberies and killing one of the victims. A jury could not reach a unanimous verdict as to those charges but, as to murder and armed robbery, convicted defendant of uncharged, lesser-included offenses. Despite the jury being deadlocked as to the greater, charged offenses, the trial court accepted the jury's verdict and had it recorded. The State sought thereafter to retry defendant on felony murder, and defendant moved to bar a retrial arguing that double jeopardy principles and the improper termination of his prosecution barred a new trial as to those charges. The trial court agreed with defendant's arguments and granted his motion. We stayed further proceedings and granted the State leave to appeal the trial court's order.
After considering the State's argument in the context of the unusual circumstances of this case, we agreed with the trial court that a retrial on felony murder was barred by the improper termination of defendant's prosecution arising from the taint to the jury's verdict caused by the trial court's (1) acceptance of a partial verdict, (2) its failure to insist on there being a unanimous not guilty verdict before taking the verdict on the uncharged, lesser- included offenses, (3) its failure to review the verdict sheet with the jurors, combined with (4) the apparent confusion caused by the court's initially telling the jury to not inform the court if it was deadlocked. We also again restated our concern about the problems that can be created by accepting partial verdicts before a trial court has conducted the appropriate investigation as to whether a jury's deadlock is intractable. 

STATE OF NEW JERSEY VS. DANIEL A. BORJAS A-6292-11T2

STATE OF NEW JERSEY VS. DANIEL A. BORJAS
          A-6292-11T2
Defendant was found guilty by a jury of three counts of knowingly making false government documents, second- degree offenses proscribed by N.J.S.A. 2C:21-2.1(b), and four counts of knowingly possessing false government documents, fourth-degree offenses proscribed by N.J.S.A. 2C:21-2.1(d). The incriminating items were created or
page7image20080

stored in hard drives on computers at defendant's residence. The items were discovered by law enforcement officers pursuant to a search warrant, although the officers found no printouts of the false items.
We reject defendant's argument that subsections (b) and (d) of N.J.S.A. 2C:21-2.1 are unconstitutionally overbroad because they allegedly infringe too much upon protected forms of expression. In doing so, we do not foreclose a future "as-applied" challenge to the statute by an artist, student, or other person who, unlike the present defendant, makes or stores false images for benign reasons involving constitutionally-protected speech.
Additionally, we reject defendant's argument that the statute is void for vagueness because it lacks an express element requiring the State to prove a defendant's specific intent to use the false items for illicit purposes. We also reject defendant's criticisms of the trial judge's jury instruction defining the term "document" under the statute to encompass items or images stored on a computer. The instruction is consistent with the broader meaning associated with the term "document" in common modern usage.
In an unpublished portion of the opinion, we uphold defendant's seventy-eight-month flat custodial sentence. 

State v. Julie L. Michaels (A-69-12


State v. Julie L. Michaels (A-69-12; 072106)
          Defendant’s confrontation rights were not violated by
          the admission of Dr. Barbieri’s report or his
          testimony regarding the blood tests and his
          conclusions drawn therefrom.  Dr. Barbieri was
          knowledgeable about the testing process, independently
          verified the correctness of the machine-tested
          processes and results, and formed an independent
          conclusion about the results.  Defendant’s opportunity
          to cross-examine Dr. Barbieri satisfied her right to
          confrontation on the forensic evidence presented
          against her.

State v. Reginald Roach (A-129-11

State v. Reginald Roach (A-129-11; 068874)
          Defendant’s confrontation rights were not violated by
          the testimony of the analyst who matched his DNA
          profile to the profile left at the scene by the
          perpetrator.  Defendant had the opportunity to
          confront the analyst who personally reviewed and
          verified the correctness of the two DNA profiles that
          resulted in a highly significant statistical match
          inculpating him as the perpetrator.  In the context of
          testing for the purpose of establishing DNA profiles
          for use in an expert’s comparison of DNA samples, a
          defendant’s federal and state confrontation rights are
          satisfied so long as the testifying witness is
          qualified to perform, and did in fact perform, an
page1image16680 page1image16840 page1image17000

independent review of testing data and processes,
          rather than merely read from or vouch for another
          analyst’s report or conclusions.

State v. Bryden Robert Williams (A-5-12;


State v. Bryden Robert Williams (A-5-12; 070388)
          Defendant’s failure to object to the admission of the
          testimony on confrontation grounds and his decision to
          cross-examine the medical examiner constitute a waiver
          of his right of confrontation.

State v. Fausto Camacho (A-30-13;


 State v. Fausto Camacho (A-30-13; 072525)
          The trial court’s failure to provide a no-adverse-
          inference jury instruction constitutes trial error,
          requiring a harmless-error analysis, and does not
          mandate automatic reversal.  In this case, the error
          was harmless.

State v. Vonte Skinner (A-57/58-12;


State v. Vonte Skinner (A-57/58-12; 071764)
          The Appellate Division correctly reversed defendant’s
          conviction because the violent, profane, and
          disturbing rap lyrics authored by defendant constitute
          highly prejudicial evidence that bore little or no
          probative value as to any motive or intent behind the
          attempted murder offense with which he was charged.

State v. Kevin Gamble (A-53-12;


 State v. Kevin Gamble (A-53-12; 071234)
          Under the totality of the circumstances, which
          provided the officers with a reasonable and
          articulable suspicion that defendant was engaged in
          criminal activity, the investigatory stop and
          protective sweep of the passenger compartment of the
          van were valid.

State v. Yolanda Terry and Teron Savoy (A-71-12; 072775)


 State v. Yolanda Terry and Teron Savoy  (A-71-12;
          072775)
     A confidential marital communication protected under           the marital communications privilege does not lose its           privileged status by virtue of a wiretap under the New           Jersey Wiretapping and Electronic Surveillance Control           Act.  The Court, however, proposes a crime-fraud           exception to the marital communications privilege and,           pursuant to the Evidence Act of 1960, transmits it for           approval by a joint resolution of the Legislature and           for the Governor’s signature.

Thursday, July 31, 2014

DWI Driver cannot be sentenced an 2nd time school zone offender unless he had a prior school zone conviction.

DWI Driver cannot be sentenced an 2nd time school zone offender unless he had a prior school zone conviction.
State vReiner, 180 N.J. 307 (2004)
HELD: Subsection (a)[regular DWI]  and (g)[school zone DWI of N.J.S.A. 39:4-50 are separate offenses; therefore, in order to be sentenced as a second-time offender under subsection (g), there must be another prior school zone conviction against the defendant under that  subsection.   Therefore, the statute must be construed strictly against the State and in favor of Reiner. Under the circumstances here, the more favorable result for Reiner would be to construe subsection (g) as a separate offense that requires other subsection (g) convictions for repeat status to attach. In respect of the subsection (g) offense, Reiner is a first-time offender. He is a repeat offender only under subsection (a).
Supreme Court of New Jersey.
STATE of New Jersey, Plaintiff-Respondent, v. Philip REINER, Defendant-Appellant.

Decided: July 7, 2004

In this appeal we are called on to determine whether the heightened penalties contained in N.J.S.A. 39:4-50(g) (subsection (g)), applicable upon conviction of a second offense of driving while intoxicated (DWI) within 1,000 feet of school property, may be imposed when a defendant's first DWI offense did not occur within 1,000 feet of school property.   The predicate “first offense” here involved a conviction and sentence under N.J.S.A. 39:4-50(a) (subsection (a)).   A divided Appellate Division held that the subsection (g) second-offender penalties applied in the foregoing circumstances.  State v. Reiner, 363 N.J.Super. 167, 182, 832 A.2d 328 (2003).   We now reverse and remand.
I.
A full factual recitation appears in the decision of the Appellate Division.   Id. at 169-72, 832 A.2d 328.   We restate only the basic facts necessary for our disposition.
Prior to the events giving rise to this appeal, defendant, Phillip Reiner, had been convicted of DWI under subsection (a).   On October 10, 2000, the Newton Police Department charged defendant with:  (I) DWI contrary to N.J.S.A. 39:4-50(a);  (II) refusal to submit to a breathalyzer test contrary to N.J.S.A. 39:4-50.2;  (III) driving the wrong way on a one-way street contrary to N.J.S.A. 39:4-85.1;  (IV) failure to stop before turning right on red contrary to N.J.S.A. 39:4-115;  and (V) failure to maintain a lane contrary to N.J.S.A. 39:4-88.1  At a case management conference on October 31, 2000, defendant was advised that the State would be charging him also with DWI within 1,000 feet of school property contrary to subsection (g), as well as with refusal to take a breathalyzer after having been stopped within 1,000 feet of school  property contrary to N.J.S.A. 39:4-50.4 (collectively, the “school zone charges”).
The municipal court rejected a pre-trial contention by defendant that he did not receive adequate notice of the school zone charges against him and three days of trial ensued.   The court found defendant guilty of DWI within 1,000 feet of school property and guilty of all other charges, except refusal to take a breathalyzer after having been stopped within 1,000 feet of school property.   The municipal court sentenced defendant consistent with the penalties for a second-time offender under subsection (g), specifically imposing:  ninety-six hours in jail;  seventy-five days at the Sheriff's Labor Assistance Program (SLAP) for having driven intoxicated in a school zone when children were present;  a four year suspension of driver's license;  sixty days of community service;  and forty-eight hours at the Intoxicated Driver Resource Center.   The court also imposed a $1,500 fine, and other penalties and fees.
The Law Division, on de novo review, similarly held that defendant had adequate notice that he was being charged with DWI in a school zone, and affirmed the municipal court's determination that the second-offense penalties of subsection (g) applied to defendant's current DWI conviction.   The court also affirmed the sentence imposed by the municipal court for defendant's DWI conviction.2
A divided Appellate Division affirmed.  Reiner, supra, 363 N.J.Super. at 182, 832 A.2d 328.   The majority determined that defendant received adequate notice that he was being charged under subsection (g), id. at 174, 832 A.2d 328, and held that defendant should be sentenced as a second-time offender pursuant to subsection (g), even though he had no prior convictions for DWI  within a school zone.  Id. at 175-82, 832 A.2d 328.   There was a dissent in respect of defendant's treatment as a second-time offender under subsection (g).  The dissent found N.J.S.A. 39:4-50 to be vague in respect of whether two convictions under subsection (g) were necessary for a defendant to be sentenced as a repeat offender under the terms of that subsection. Id. at 183-84, 832 A.2d 328 (Fuentes, J.A.D., dissenting).   The dissent reconciled the ambiguity by concluding that subsections (a) and (g) are separate offenses with separate sentencing schemes.  Id. at 182-85, 832 A.2d 328 (Fuentes, J.A.D., dissenting).
Defendant appealed based on the dissent below.   R. 2:2-1(a)(2).   We also granted defendant's petition for certification limited to the question whether defendant had adequate notice of the school zone charges.  178 N.J. 451, 841 A.2d 89 (2004).
II.
A.
 Like all matters that require interpretation of a statute, our goal of implementing the Legislature's intent begins with the text of the statute.   If the meaning of the text is clear and unambiguous on its face, we enforce that meaning.  State v. Brannon, 178 N.J. 500, 505-06, 842 A.2d 148 (2004);  State v. Thomas, 166 N.J. 560, 567, 767 A.2d 459 (2001).   If the language admits to more than one reasonable interpretation, we may look to sources outside the language to ascertain the Legislature's intent.   Brannon, supra, 178 N.J. at 507, 842 A.2d 148;  State v. Pena, 178 N.J. 297, 307, 839 A.2d 870 (2004) (quoting Thomas, supra, 166 N.J. at 567, 767 A.2d 459).   When extrinsic sources cannot clarify the meaning of ambiguous language, we employ the canon of statutory construction that counsels courts to construe ambiguities in penal statutes 3 in favor of defendant.   State v. Livingston, 172 N.J. 209, 218, 797 A.2d 153 (2002);  State v. Valentin, 105 N.J. 14, 18, 519 A.2d 322 (1987).   Thus, we turn first to the operative text.
N.J.S.A. 39:4-50 is entitled “Driving while intoxicated.”   Two subsections concern us.   Subsection (a), which states generally the elements of and punishments for DWI, provides, in relevant part:
Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.10% or more shall be subject:  (1) For the first offense, to a fine of not less than $250 nor more than $400.00 and a period of detainment [pursuant to the Intoxicated Driver Resource Centers] a term of imprisonment of not more than 30 days and [suspension of driving privileges] for a period of not less than six months nor more than one year (2) For a second violation, a person shall be subject to a fine of not less than $500.00 nor more than $1,000.00, and community service for a period of 30 days and imprisonment for a term of not less than 48 consecutive hours nor more than 90 days, and [suspension of driving privileges] for a period of two years.
[N.J.S.A. 39:4-50(a).] 4
Subsection (g), added in 1999, punishes DWI committed within a school zone:
(g) When a violation of this section occurs while:
(1) on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;
(2) driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such;  or
(3) driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution, the convicted person shall:  for a first offense, be fined not less than $500 or more than $800, be imprisoned for not more than 60 days and have his license to operate a motor vehicle suspended for a period of not less than one year or more than two years;  for a second offense, be fined not less than $1,000 or more than $2,000, perform community service for a period of 60 days, be imprisoned for not less than 96 consecutive hours, which shall not be suspended or served on probation, nor more than 180 days, except that the court may lower such term for each day, not exceeding 90 days, served performing community service in such form and on such terms as the court shall deem  appropriate under the circumstances and have his license to operate a motor vehicle suspended for a period of not less than four years
[N.J.S.A. 39:4-50(g).] 5
The parties and opinions below differ in respect of the interrelationship between the foregoing subsections.   The State and Appellate Division majority believe that subsections (a) and (g) are textually linked.   They find that inclusion of the phrase “[e]xcept as provided in subsection (g)” in subsection (a) demonstrates that subsection (g) contains heightened punishments for DWI while in a school zone that are sensible only if subsection (g) is viewed as a sentencing enhancer.   Stated differently, (g) builds on the more general elements of (a).   In addition, the proponents of that view contend that the language, “[w]hen a violation of this section occurs,” (emphasis added), refers to N.J.S.A. 39:4-50 as a whole, and not to subsection (g) in particular.   The State considers the use of the word “section” to exemplify the “tongue-and-groove” approach of the subsections, and the integrated nature of N.J.S.A. 39:4-50 in general.
The contrary view espoused by defendant and the dissent below emphasizes that the use of separate subsections for subsections (a) and (g) evidences a legislative intent to treat them as distinct offenses and that the introductory phrase “[e]xcept as provided in subsection (g)” promotes the notion of separation, rather than integration, of the subsections.  Reiner, supra, 363 N.J.Super. at 183, 832 A.2d 328 (Fuentes, J.A.D., dissenting).   Further, defendant claims that ambiguity arises from two other considerations:  (1) subsection (g) does not specify whether the fact that a DWI offense occurred in a school zone is an element, which must be proved by the State beyond a reasonable doubt, or a sentencing consideration;  and (2) subsection (g) does not state expressly that its penalties apply irrespective of whether any of a defendant's prior DWI convictions were for a school zone offense.   In addition,  we note that subsection (g) has an express internal reference indicating that the provision sets forth a separate offense, i.e., subsection (g) refers to “a prosecution under paragraph (1) of this subsection” when describing the form of map that might be used to establish the school zones within a community.
We mention lastly defendant's argument concerning the disparate penalties occasioned by the State's interpretation of subsections (a) and (g).  Under the State's interpretation, a person first convicted under subsection (g) and then subsection (a) would receive aggregate penalties less grave than a person, such as defendant, convicted first under subsection (a) and subsequently under subsection (g),6 despite engaging in virtually the same conduct-with one DWI offense taking place within a school zone, and one outside a school zone.   The Appellate Division determined that “there is a rational basis for the purportedly disparate sentences, in that when the second offense occurs in a school zone, it can be viewed as an escalating violation.”  Reiner, supra, 363 N.J.Super. at 176, 832 A.2d 328.   However, a person whose first DWI offense occurred in a school zone has shown the same propensity to flout motor vehicle laws, and in an egregious way-by endangering the lives of children.   Punishing both such persons equally would be a rational result as well.
Reasonable arguments have been advanced for both interpretations of the relationship between subsection (g) and subsection (a).  N.J.S.A. 39:4-50 is not a model of clarity.   We find that the reasonableness of each of the results described above supports a conclusion that the statute's meaning is not free from doubt.   Accordingly, we must turn to extrinsic sources for assistance.   Brannon, supra, 178 N.J. at 507, 842 A.2d 148;  Pena, supra, 178 N.J. at 307, 839 A.2d 870.
B.
The Legislature added subsection (g), known as “Filomena's Law,” to N.J.S.A. 39:4-50 in response to the tragic death of Filomena Coppola, a school crossing guard who was struck by a drunk driver while protecting children from the oncoming vehicle.  Reiner, supra, 363 N.J.Super. at 175, 832 A.2d 328.   Filomena's Law initially was proposed in two bills, Senate No. 854 (March 5, 1998) and Assembly No. 1821 (March 16, 1998), with identical provisions calling for increased penalties for DWI within 1,000 feet of any school property.   Those provisions would have added the following language to subsection (a):
When a violation of this section occurs while on or within 1,000 feet of any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, the fine, period of community service, term of imprisonment and period of license forfeiture imposed upon the convicted person shall be double that which would otherwise be imposed under paragraphs (1), (2) or (3) of this subsection.
[N.J. Sen. 854, 208th Leg. (March 5, 1998).] 7
By adding the above paragraph to the end of what was then N.J.S.A. 39:4-50(a)(3), the proposed bills explicitly provided that DWI in a school zone would not be treated as a separate offense, but would merely double automatically the penalties imposed for DWI. Both the language and structure of the proposed bills evinced an intention to treat DWI in a school zone as grounds for enhanced penalties.
Identical Senate and Assembly Statements accompanying those proposed bills described them as doubling the penalties when the DWI was committed in a school zone:
The bill would double the penalties imposed on a person convicted of driving a motor vehicle under the influence of alcohol or drugs while on or within 1,000 feet of any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board.
 Under current law, the penalties for a first drunk driving offense include a fine of $250 to $400, possible imprisonment for up to 30 days and loss of a driver's license for six months to one year. Under the bill, the penalties for a first offense of drunk driving while on or within 1,000 feet of a school property would be a fine of $500 to $800, possible imprisonment for up to 60 days and loss of a driver's license for up to two years.   The penalties for second, third and subsequent drunk driving offenses committed while on or within 1,000 feet of school property also would be doubled.
[Senate Law and Public Safety Committee, Statement to Senate Bill No. 854, at 1 (Oct. 15, 1998);  Assembly Law and Public Safety Committee, Statement to Assembly Bill No. 1821, at 1 (June 1, 1998)(emphasis added).]
However, neither of the proposed bills received the Legislature's approval.   Instead, the Legislature enacted and the Governor signed into law Senate Substitute for Senate No. 854.   L. 1999, c. 185 (the Substitute).   The Substitute expanded the definition of a school zone and included school crossings, whether or not they fall within 1,000 feet of a school.   Id. at § 4. The change concerning school crossings in particular was consistent with the impetus for the law, namely, the death of Ms. Coppola.
The Statement accompanying the Substitute explained the revision as follows:
This substitute creates stiff new penalties for drunk driving and other serious traffic offenses if committed while:  1) on or within 1,000 feet of school property used for school purposes which is owned by or leased to any elementary or secondary school or school board;  2) driving through a school crossing if the municipality, by ordinance or resolution, has designated the school crossing as such;  or 3) driving through a school crossing knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution
Under the substitute, the penalties for a first offense of drunk driving while on or within 1,000 feet of school property or while driving through designated school crossings or school crossings when children are present are a fine of between $500 and $800, a term of imprisonment of 60 days and a period of license suspension of one to two years.   For a second offense, the penalties are a fine of $1,000 to $2000 [sic], community service of 60 days, a term of imprisonment of 96 hours to 180 days and license suspension for a period of not less than four years.   For a third offense under the substitute, the penalties are a fine of $2,000, imprisonment for 180 days and license suspension of 20 years.
[Statement to Senate Substitute to Senate Bill No. 854, at 16 (Aug. 19, 1999)(Statement to Substitute ).] 8
 Notably, the Substitute moved the school zone provisions into a new, separate subsection (g), and revised subsection (a) to begin “[e]xcept as provided in subsection (g).”  L. 1999, c. 185, § 4 (N.J.S.A. 39:4-50(g)).  The Statement accompanying the Substitute does not address that structural change.   Statement to Substitute.   However, consistent with the changes made to the proposed bills by the Substitute, the Statement accompanying the Substitute describes the substance of the penalties for first, second and subsequent DWI school zone offenses and does not simply state that the ordinary DWI penalties will be doubled.  Ibid. In addition, we note that the Statement's reference to “the penalties for a first offense of drunk driving while on or within 1,000 feet of school property,” suggests a legislative view that subsection (g) was to be an offense in and of itself.  Ibid.
Those textual and structural changes-adding a separate subsection (g) for school zone offense and redrafting the new subsection to omit the automatic “doubling” language-support the interpretation advanced by the dissent below and by defendant.   Further, the Statement accompanying the Substitute more persuasively supports interpreting subsection (g) as creating a separate offense, rather than enhancing the penalties for DWI offenses in general.   Whereas the bills as originally proposed would have unambiguously doubled the penalties for any DWI offense occurring in a school zone, irrespective of the number of prior school zone offenses by the defendant, the altered language of Substitute does not support that interpretation.
Finally, we note that a more recent amendment to N.J.S.A. 39:4-50 sheds some light on whether subsections (a) and (g) should be treated as separate offenses, or the same offense but with enhanced penalties for school zone offenses.   In 2001, the Legislature added to N.J.S.A. 39:4-50 a subsection (h), which states:  “A court also may order a person convicted pursuant to subsection a. of this section, to participate in a supervised visitation program as either a condition of probation or a form of community service, giving preference to those who were under the age of 21 at the  time of the offense.”   L. 2001, c. 12, § 1 (N.J.S.A. 39:4-50(h)) (emphasis added).   The phrasing of subsection (h) suggests that subsections (a) and (g) are separate offenses, and that persons are convicted “pursuant to” one “subsection” or the other, and not the “section,” N.J.S.A. 39:4-50, generally.
III.
Examination of the legislative history, and consideration of the possible results attending the differing interpretations to be given to the statute, leads to the conclusion that those extrinsic aids to statutory interpretation do not answer the question whether defendant should be sentenced as a second-time offender under subsection (g).  When the text of a statute and extrinsic aids do not enlighten us satisfactorily concerning the Legislature's intent, our obligation is to construe the statute strictly, against the State and in favor of the defendant.   See Livingston, supra, 172 N.J. at 223, 797 A.2d 153 (observing that Court's holding was “consonant with the rule of strict construction of penal statutes”);  Valentin, supra, 105 N.J. at 18-23, 23, 519 A.2d 322 (analyzing statutory text and legislative history;  holding that statute under construction was “sufficiently ambiguous to preclude its application to th[at] defendant in th[at] context without a clarifying amendment”).
 Under the circumstances presented here, the more favorable result for defendant would be to construe section (g) as a separate offense that requires other subsection (g) convictions for repeat status to attach.   We so hold.   Our construction allows defendant to be charged with and convicted of violating both subsection (a) and subsection (g) as separate offenses.   In respect of the subsection (g) conviction, defendant is a first-time offender.   He is a second offender only under subsection (a) because he previously had been convicted of a subsection (a) offense.9  As explained by the majority below, defendant's conviction under  subsection (a) would merge into his conviction under subsection (g), Reiner, supra, 363 N.J.Super. at 177, 832 A.2d 328 (citing N.J.S.A. 2C:1-8a(1), -8a(4)), because the offenses would “differ only in that [subsection (a) ] is defined to prohibit a designated kind of conduct generally,” N.J.S.A. 2C:1-8a(4), i.e., DWI in general, and subsection (g) is designed “to prohibit a specific instance of that conduct,” i.e., DWI in a school zone.  Ibid.
We note the anomalous sentencing that would result if, on remand, the court were limited to sentencing defendant as a first-time offender under subsection (g), which is the offense that survives our traditional merger analysis.   Subsection (g) carries lesser penalties for defendant's first-time offender status than those to which defendant would be subjected as a consequence of being a second-time offender under subsection (a) for the same DWI incident.   Unlike a first-time-subsection (g) offense, a second-time-subsection (a) offense carries with it mandatory community service and ignition interlock, as well as the potential for a larger fine, more jail time, and a fixed license suspension equal to the longest suspension that may be imposed on a first-time subsection (g) offender.   Because we understand the Legislature to have intended to impose increasingly enhanced penalties for repeat DWI offenders, we construe and interpret N.J.S.A. 39:4-50 to permit sentencing defendant in accordance with the highest penalties that apply to him.   Cf. State v. Dillihay, 127 N.J. 42, 54-55, 601 A.2d 1149 (1992) (merging lesser school zone drug offense with greater non-school zone drug offense, but retaining for sentencing purposes school zone offense's mandatory parole ineligibility period).   Thus, the trial court should sentence defendant in accordance with the heightened penalties that apply as a consequence of being a second-time offender under subsection (a).   We  believe that that application fulfills the legislative intent with regard to the punishment of repeat DWI offenders.
IV.
 Finally, we reject defendant's contention that he did not receive adequate notice that the State would be pursuing school zone charges against him-namely, that his DWI offense occurred within a school zone-substantially for the reasons set forth in the majority opinion of the Appellate Division below.  Reiner, supra, 363 N.J.Super. at 174, 832 A.2d 328.   As noted by the majority, the police report provided to defendant long before his trial noted that the offense for which defendant was charged occurred within a school zone and, thus, that defendant would be subject to prosecution under subsection (g) and N.J.S.A. 39:4-50.4. Ibid. Defendant was advised three weeks after his arrest and two weeks before his first court appearance that the State would be pursuing school zone charges.   Further, defendant's trial did not begin until nearly one year and four months after he was advised of the school zone charges. Under those circumstances, defendant's contention that he did not have adequate notice of the school zone charges is without merit.   Cf. H.E.S. v. J.C.S., 175 N.J. 309, 324, 815 A.2d 405 (2003) (finding due process violation where defendant received domestic violence complaint against him only one day prior to return date and defendant's request for adjournment was denied).
V.
For the reasons stated above, we reverse the judgment of the Appellate Division.   We remand to the Law Division for resentencing of defendant in accordance with the instructions contained in this opinion.
FOOTNOTES
1.   We note that the summons issued for the N.J.S.A. 39:4-50 offense did not specify subsection (a) expressly.   That is the obvious inference, however, in that defendant was served simultaneously with a summons for violation of N.J.S.A. 39:4-50.2, which is a non-school zone offense.
2.   The Law Division correctly merged defendant's convictions for driving the wrong way on a one-way street, failure to stop before turning on red, and failure to maintain a lane into defendant's DWI conviction.   Reiner, supra, 363 N.J.Super. at 170, 832 A.2d 328.
3.   In State v. Negran, 178 N.J. 73, 83, 835 A.2d 301 (2003), we discussed the penal nature of motor vehicle violations that, while not “crimes,” are “petty offenses.”
4.   The version of N.J.S.A. 39:4-50(a) quoted in text is the version that was in effect at the time of defendant's arrest.   The Legislature since has amended the provision.
5.   Both subsections (a) and (g) impose penalties for third-time and subsequent DWI offenders.   Because defendant is only a second-time offender, those third-time-offender (and subsequent-offender) penalties are not addressed further.
6.   Assuming a blood alcohol level of greater than 0.10%, the first person in the hypothetical, who committed the subsection (g) violation first, would be subject to fines of $1,000 to $1,800 and license suspension of three to fours years, along with other penalties.   The second person, who committed the subsection (g) violation second, would be subject to fines of $1,300 to $2,500 and license suspension of four years and seven months to five years, along with other penalties.  N.J.S.A. 39:4-50(a), -50(g).
7.   Paragraph (1) of subsection (a) specified penalties for a first-time DWI offender;  paragraph (2) specified penalties for a second-time offender;  and paragraph (3) specified penalties for a third-time or subsequent offender.
8.   The Appellate Division's decision does not discuss the Statement quoted above.  Reiner, supra, 363 N.J.Super. at 177, 178, 832 A.2d 328 (discussing Statements accompanying initially proposed bills that were not adopted).
9.   In the event that our decision runs counter to the original intentions of the sponsors of subsection (g), a possibility we readily acknowledge, then a corrective amendment will right the course.   However, we must glean the legislative intent from the language of the statute actually enacted, informed by extrinsic sources, some of which support the State's interpretation and some of which do not.   In those circumstances, we are constrained to interpret the ambiguous language of the statute against the State and in favor of defendant in respect of the issue of defendant's second-offender status under subsection (g).
 Justice LaVECCHIA delivered the opinion of the Court.
For reversal and remandment-Chief Justice PORITZ and Justices LONG, VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE-7.Opposed-None.

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Wednesday, July 23, 2014

Summer Municipal Court Law Review 2014


Summer Municipal Court Law Review 2014

1. If Defendant detained, third person’s consent to search no good. State v. Coles 217 NJ 467 (2014) A-1512 

Under the circumstances presented here, a third party’s consent to conduct a warrantless search of a defendant’s living space is insufficient to justify the search when the defendant is unlawfully detained by police.

2. Co-Occupant consent to search valid. State v. Lamb 217 NJ 442 (2014) A-3712 

Under the circumstances of this appeal, an occupant’s knowing and voluntary consent to search a premises is constitutionally effective against a third party and is not nullified by the prior objections of an absent co-occupant whose absence is not the result of a police effort to avoid an objection. 

3. Trial Court to examine if confession based on false promise of leniency. State v. Hreha 217 NJ 368 (2014) A11511

The record lacks sufficient credible evidence to support the trial court’s finding that defendant was not offered leniency in exchange for his confession. The matter is remanded for a new Miranda hearing to allow a trial court to make fresh credibility and factual findings, after which the trial court may decide what weight, if any, to assign to any promises of leniency when it applies the totality-of-the-circumstances test.


4. PTI not available after guilty verdict. State v. Bell 217 NJ 336 (2014) A2112 

PTI is a pretrial diversionary program that is not available to a defendant once the charges have been tried before a judge or a jury and a guilty verdict has been returned.

5. Suppression granted where stop based on driver high beams on. State v. Witt 435 NJ Super. 608 (App. Div. 2014) A 0866-13T2

The court granted leave to appeal an order granting defendant's motion to suppress evidence seized during a warrantless search of his vehicle. The court affirmed not only because it is bound by State v. Pena-Flores, 198 N.J. 6 (2009), and its many antecedents, and not only because no exigencies for the search were revealed during the suppression hearing, but also because there was no legitimate basis for the motor vehicle stop that preceded the search. In this last regard, the record demonstrated that the police officer stopped defendant's vehicle because defendant did not dim his high beams as he drove by the officer's parked patrol vehicle. Because the patrol vehicle was not an "oncoming vehicle," and because there were no other "oncoming vehicles" on the road at the time, the police officer did not have objectively reasonable grounds to believe defendant had violated the high-beam statute, N.J.S.A. 39:3-60, in making the vehicle stop.

6.  Search no good where search away from location of search warrant. State v. Bivins 435 NJ Super. 519 (App. Div. 2014) A1577-12T2

In this appeal, the court considers whether the scope of the permissible area and persons to be searched, pursuant to a search warrant, extends to the location where defendant was found, seated in a vehicle, parked on the street, five or six houses away from the premises where a search warrant was being executed. The motion judge found there was probable cause to search defendant based upon the search warrant. The court reverses the holding pursuant to Bailey v. United States, the search and seizure was beyond the spatial limits of the search warrant. 

7. PCR Hearing granted where defendant has colorable claim of innocence. State v. O’Donnell 435 NJ Super. 351 (App. Div. 2014) A1889-12T2

Defendant pleaded guilty to the murder of her six-year-old son. She received a thirty-year sentence with a thirty-year MPI. She alleges her attorney was ineffective by failing to diligently pursue a diminished capacity defense and failing to adequately consult with her before urging her to plead guilty. The court reverses the trial court's denial of PCR and remand for an evidentiary hearing. 
The court directs the court to separately apply the four-factor test governing plea withdrawal motions under State v. Slater, 198 N.J. 145 (2009), and the two-prong test governing PCR petitions under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The court compares and contrasts the two standards. Both apply to defendant's application for relief. Although the standards sometimes overlap, they do not always lead to the same results. The court instructs the trial court not to conflate the two. The court also concludes that the court mistakenly set too high a threshold for satisfying the "colorable claim of innocence" factor under Slater.
  1. 8. Prior DWI counts for enhanced refusal. State v. Frye 217 NJ. 566 (2014) A-30-12

The court reaffirms its holding in In re Bergwall, 85 N.J. 382 (1981).  A prior DWI conviction may enhance the sentence for a subsequent refusal conviction under the refusal statute. N.J.S.A. 39:4-50.4a.
  1. 9. No insurance Law 39:6 B-2 amended to provide discretion for no DL suspension

      Under the prior law, a person who commits a first offense of driving without insurance is subject to a fine of between $300 and $1,000, a period of community service to be determined by the court, and loss of driver’s license for one year from the date of conviction. Under this amended law, imposition of a driver’s license suspension for such a first offense is to be within the discretion of the court, and the period of any such suspension could be from two months to one year from the date of conviction.
The relevant portion of 39:6b-2 reads: 
….The court also shall suspend the person's right to operate a motor vehicle over the highways of this State for a period of one year from the date of conviction ; provided, however, the period of license suspension may be reduced or eliminated if the person provides the court with satisfactory proof of motor vehicle liability insurance at the time of the hearing. 

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Editorial Assistance provided by Associate Editor Jillian Spielman, 3L, New York Law School 

INDEX

1. If Defendant detained, third person’s consent to search no good. State v. Coles
2. Co-Occupant consent to search valid. State v. Lamb
3. Trial Court to examine if confession based on false promise of leniency. State v. Hreha
4. PTI not available after guilty verdict. State v. Bell
5. Suppression based on driver high beaming to warn of police car. State v. Witt
6. Search no good where search away from location of search warrant. State v. Bivins
7. PCR Hearing granted where defendant has colorable claim of innocence. State v. O’Donnell
8. Prior DWI counts for enhanced refusal. State v. Roger Paul Frye
9. No insurance law 39:6 R2 amended to provide discretion for no DL suspension


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