STATE OF NEW JERSEY v. VICTORIA SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1618-04T21618-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTORIA SMITH,

Defendant-Appellant.

_____________________________________

 

Argued November 9, 2005 - Decided

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 04-098.

Stephen M. Pascarella argued the cause for appellant.

Mark P. Stalford, Assistant Prosecutor, argued the cause for respondent (John Kaye, Monmouth County Prosecutor, attorney; Mr. Stalford, of counsel and on the brief).

PER CURIAM

On February 16, 2004, defendant was charged in the Township of Colts Neck municipal court with driving while under the influence of alcohol, in violation of N.J.S.A. 39:4-50, and various other motor vehicle violations. Defendant pled guilty to the driving while under the influence charge. This was her fourth driving while under the influence offense, defendant having been previously convicted in 1978, 1993 and earlier in 2004.

Defendant argued in a presentence brief that, notwithstanding her three prior convictions, she should be sentenced as a second offender because there had been gaps of more than ten years between her first and second and her second and third offenses. Defendant also relied upon the fact the municipal court had sentenced her as a first offender for her third conviction for driving while under the influence earlier in 2004. The municipal court judge rejected these arguments and sentenced defendant as a third or subsequent offender to a ten-year loss of her motor vehicle license, ninety days of in-patient alcohol rehabilitation, ninety days in county jail and ten years of motor vehicle registration suspension in lieu of a mandatory interlock device on her car. The court also imposed the statutorily mandated fines, penalties, assessments and costs.

On appeal to the Law Division, defendant again argued that she should be sentenced as a second offender. The Law Division judge rejected these arguments and re-imposed the same sentence imposed by the municipal court.

On her appeal to this court, defendant presents the following arguments:

I. PURSUANT TO N.J.S.A. 39:4-50 DEFENDANT MUST BE TREATED AS A SECOND OFFENDER.

II. THE MUNICIPAL COURT PROPERLY EXCLUDED DEFENDANT['S] 1978 OFFENSE FROM CONSIDERATION FOR ENHANCEMENT PURPOSES.

III. THE JANUARY, 2004 AMENDMENTS TO N.J.S.A. 39:4-50 CREATED A STATUTE THAT IS EX POST FACTO.

These arguments are clearly without merit and only require brief discussion. R. 2:11-3(e)(2).

Defendant's argument that she should have been sentenced as a second offender for her fourth conviction of driving while under the influence of alcohol is based on N.J.S.A. 39:4-50(a)(3), which states in pertinent part:

[I]f the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

Defendant argues that this statute was properly applied to the sentences for her 1993 and first 2004 convictions, for which she was sentenced as a first offender, and therefore her sentence for her second 2004 conviction should be treated as only a second offense for sentencing purposes.

We rejected substantially the same argument in State v. Burroughs, 349 N.J. Super. 225, 227 (App. Div. 2002):

[N.J.S.A. 39:4-50(a)(3)] accords sentencing leniency to a driver who is a second drunk driving offender, where there is a hiatus of ten or more years between the first and second offenses, and to a driver who is a third drunk driving offender where there is a hiatus of ten or more years between the second and third offenses. But once having been granted such leniency, the defendant has no vested right to continued "step-down" status where he commits a subsequent drunk driving offense. The earlier offense is not "forgiven." Having been granted leniency by virtue of the infraction-free lapse of time between the two earlier violations, the offender has received his reward for good conduct and is entitled to no further consideration.

[Citations omitted.]

See also State v. Lucci, 310 N.J. Super. 58, 61-62 (App. Div.), certif. denied, 156 N.J. 386 (1998).

Defendant argues that Burroughs was wrongly decided and should be reconsidered. However, we conclude that the Burroughs panel correctly interpreted N.J.S.A. 39:4-50(a)(3). This statute only states that a second conviction for driving while under the influence committed more than ten years after a first offense "shall [be] treat[ed] . . . as a first offense for sentencing purposes." It does not state that such a second conviction is transformed into a first conviction for all purposes and thus must be disregarded in determining a defendant's offender status upon a conviction for a third or subsequent offense. Therefore, defendant's first 2004 conviction, which was her third conviction for driving while under the influence of alcohol, should have been treated as a second conviction for sentencing purposes only because it "occur[red] more than ten years after the second offense," N.J.S.A. 39:4-50(a)(3), and defendant's second 2004 conviction, which was her fourth conviction for driving while under the influence, was properly treated as a third or subsequent offense for sentencing purposes. The fact that the municipal court judge who sentenced defendant for her first 2004 conviction incorrectly sentenced her as a first offender does not provide a proper basis for defendant claiming that her second 2004 conviction should be treated as only a second offense for sentencing purposes. See State v. Nicolai, 287 N.J. Super. 528, 531-32 (App. Div. 1996).

We also reject defendant's argument that the 2004 amendment to N.J.S.A. 39:4-50(a)(3), which eliminated the discretion formerly conferred upon a trial court to sentence a defendant to community service for ninety days of the statutorily mandated 180 day term of imprisonment and instead confers discretion upon the trial court to sentence a defendant to a ninety day in-patient alcohol rehabilitation program in lieu of ninety days of the statutorily mandated 180 day term of imprisonment, constituted an unconstitutional ex post facto law as applied to defendant's sentence. This amendment was enacted on January 20, 2004, before defendant committed her fourth driving while under the influence offense on February 16, 2004, and therefore, its application to defendant's sentence did not violate the State or federal constitutional proscriptions against ex post facto laws. See State v. Oliver, 162 N.J. 580, 587 (2000); State v. Phillips, 154 N.J. Super. 112, 119-20 (Law Div. 1977), aff'd o.b., 169 N.J. Super. 452 (App. Div. 1979).

 
Affirmed.

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A-1618-04T2

November 28, 2005