STATE OF NEW JERSEY v. VIJAY PATEL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0315-05T30315-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VIJAY PATEL,

Defendant-Appellant.

________________________________________________________________

 

Argued May 24, 2006 - Decided June 9, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Somerset County,

Municipal Appeal No. 12-05.

Paul J. Jackson argued the cause for appellant

(Piro, Zinna, Cifelli, Paris & Genitempo,

attorneys; Mr. Jackson, on the brief).

Jamin Cooper, Assistant Prosecutor, argued

the cause for respondent (Wayne J. Forrest,

Somerset County Prosecutor, attorney; Mr.

Cooper, on the brief).

PER CURIAM

Defendant Vijay Patel appeals from a judgment of conviction entered after a de novo review on September 1, 2005, sentencing him to serve 152 days in the county jail. Defendant served 28 days of the 180-day sentence imposed by the municipal court in an alcohol treatment facility after he pled guilty to a third offense of driving while intoxicated (DWI), N.J.S.A. 39:4-50.

In this appeal, defendant argues:

POINT ONE

THIS CASE SHOULD BE REMANDED TO ALLOW THE MUNICIPAL COURT TO CONSIDER A STATUTORILY AUTHORIZED SENTENCE, PURSUANT TO N.J.S.A. 39:4-51. UNDER THAT STATUTE, DESPITE RECENT AMENDMENTS, A THIRD OFFENDER CONVICTED OF DRIVING WHILE INTOXICATED MAY STILL SPEND THE DURATION OF HIS ORIGINAL SETNENCE [SIC] IN AN OUTPATIENT REHABILITATION PROGRAM AFTER BEING RELEASED FROM AN INPATIENT PROGRAM.

A. Principles of statutory construction applicable to the within argument.

B. The existence of a plain conflict.

POINT TWO

IT IS CLEAR IN THIS CASE THAT THE TRIAL COURT WAS DEPRIVED OF EXERCISING ITS DISCRETION AT LEAST PARTIALLY BASED UPON A MEMORANDUM BY THE ADMINISTRATIVE OFFICE OF THE COURTS. THIS COURT SHOULD MAKE CLEAR THAT THOSE MEMORANDA HAVE NO PLACE IN DECISIONAL OR INTERPRETIVE LAW.

In essence, defendant argues that he should be sentenced under N.J.S.A. 39:4-51 rather than N.J.S.A. 39:4-50(a)(3), as amended by L. 2004, c. 8, 2, eff. April 26, 2004.

N.J.S.A. 39:4-50(a)(3) provides:

(3) For a third or subsequent violation, a person shall be subject to a fine of $1,000.00, and shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center and shall thereafter forfeit his right to operate a motor vehicle over the highways of this State for 10 years.

N.J.S.A. 39:4-51 provides:

A person who has been convicted of a first or second violation of section 39:4-50 of this Title, and in pursuance thereof has been imprisoned in a county jail or workhouse in the county in which the offense was committed, shall not, after commitment, be released therefrom until the term of imprisonment imposed has been served. A person imprisoned in the county jail or workhouse may in the discretion of the court, be released on a work release program.

In our recent opinion in State v. Luthe, 383 N.J. Super. 512, 514 (App. Div. 2006), we held:

The language [of N.J.S.A. 39:4-51 as amended] is clear. Confinement, either entirely in jail or partially in jail and partially in an inpatient facility, is required. There is no allowance for noncustodial alternatives.

 
Defendant's argument that N.J.S.A. 39:4-51 should apply lacks sufficient merit to warrant consideration in a written opinion. R. 2:11-3(e)(2).

Affirmed.

(continued)

(continued)

3

A-0315-05T3

June 9, 2006