STATE OF NEW JERSEY v. EDWARD J. MCCAULEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4622-04T24622-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD J. MCCAULEY,

Defendant-Appellant.

________________________________

 

Argued March 22, 2006 - Decided September 19, 2006

Before Judges Wecker and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Municipal Appeal No. 002-14-04.

John E. Bruder argued the cause for

appellant.

Brandy B. Galler, Assistant Prosecutor,

argued the cause for respondent (John

L. Molinelli, Bergen County Prosecutor,

attorney; Ms. Galler, on the brief).

PER CURIAM

Defendant, Edward J. McCauley, appeals his conviction and sentence as a third offender under N.J.S.A. 39:4-50(a)(3). Defendant entered a guilty plea in the Saddle River Municipal Court to driving while intoxicated (DWI). Defendant's prior convictions include a 1995 DWI charge in New Jersey and a 1991 charge in New York, for which he was convicted in 1992 under N.Y. Veh. & Traf. Law 1192(1). When defendant was convicted in New Jersey in 1995, however, he was sentenced as a first rather than as a second offender.

On appeal to the Law Division from the Saddle River Municipal Court, pursuant to Rule 3:23-8, defendant was convicted once again as a third offender and sentenced accordingly. In addition to a mandatory ten-year license suspension, twelve to forty-eight hours in the Intoxicated Driver Resource Center, installation of a breath alcohol ignition interlock device for one year after restoration of his driving privileges, and the usual fines and penalties, defendant was sentenced to 180 days in the county jail. The amended final order entered in the Law Division on April 13, 2005, included these provisions:

[Defendant is sentenced to . . .] a 180 day jail sentence, which may be reduced for each day, not exceeding 90 days, served participating in a drug or alcohol rehabilitation program approved by the Intoxicated Driver's [sic] Resource Center. Defendant is hereby permitted to serve any or all of his imprisonment through home custody, if defendant is qualified for and accepted into the home custody program.

Defendant's jail sentence and his sentence to the Intoxicated Driver Resource Center were stayed pending this appeal.

On appeal, defendant presents these arguments:

POINT I

THE COURT BELOW ERRED IN CONSIDERING DEFENDANT TO BE A THIRD TIME OFFENDER OF N.J.S.A. 39:4-50.

A. The Rulings of the Courts Below.

B. The Clear and Convincing Standard.

POINT II

THE RULINGS OF THE COURTS BELOW CONSTITUTE A VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS.

A. The Lower Courts' interpretation of "clear and convincing" proof, as applied in this case, was impossible for defendant to attain, thus denying him due process of law.

B. The government's destruction of New York records pertaining to defendant's 1991 conviction has effectively deprived defendant of his due process rights.

The State did not cross-appeal any aspect of defendant's sentence. Shortly before the argument on defendant's appeal, however, another panel of this court decided State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006). As a result, the State requested and was permitted to file a supplemental letter brief to which defendant was permitted to respond. The State argued for the first time, on the basis of Luthe, that defendant's sentence was illegal to the extent it permitted any portion of his 180-day jail sentence to be served in home confinement.

We have carefully considered the record in light of these contentions. We conclude, as did the Law Division judge, that defendant's record required sentencing as a third offender. We reject defendant's due process argument as without sufficient merit to warrant discussion. See R. 2:11-3(e)(2). We therefore affirm defendant's conviction. We remand defendant's sentence, however, for reconsideration in light of Luthe.

I

The first issue, raised by defendant, is whether his 1991 conviction in New York State was properly deemed to be a prior conviction, which should be counted as defendant's first offense. N.J.S.A. 39:4-50(a)(3), the third-offender section of the DWI statute, provides, in pertinent part:

A conviction of a violation of a law of a substantially similar nature in another jurisdiction, . . . shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.

The statute provides a very limited exception to the definition of a "prior conviction" for purposes of determining a repeat offender. That exception applies only to a "per se" conviction in a foreign jurisdiction where a blood alcohol concentration (BAC) of less than .08% established the offense and where no other finding supported the conviction.

The New York statute under which defendant was charged in 1991 defines three offenses which were originally charged in defendant's case:

1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.

2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .10 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva . . . .

3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

[N.Y. VEH. & TRAF. LAW 1192]

The only evidence defendant presented at his Saddle River Municipal Court sentencing hearing, with respect to his 1991 New York conviction, was his own testimony that his BAC at the time of his arrest was .06%. No other evidence of that proceeding was offered, and it appears that as a result of normal record retention and destruction policies, no record of the New York proceedings is available. The Saddle River municipal judge, explaining why defendant was to be sentenced as a third offender, referred to his testimony as follows:

[E]ven though . . . I feel that I must accept that he had a .06 blood alcohol concentration, I'm not satisfied that that is the exclusive criteria by which he was convicted under [ 1192[1]], and that's what our statute says has to be established.

The Law Division judge, addressing the same evidence in a written opinion, drew this conclusion:

Although this Court must give the credibility determinations of the municipal judge below due weight, it is not bound by them. This Court, while accepting Defendant's testimony as evidence of the basis of his New York conviction, refuses to give it great weight. Instead, this Court recognizes the self-serving character of this testimony under the circumstances and gives Defendant's testimony its due weight accordingly.

Even if this Court accepted that Defendant had a BAC of .06, it must, as did the municipal court, reach the question of whether Defendant has shown clearly and convincingly that the BAC of .06 was the exclusive basis on which Defendant was convicted. . . . Given the importance attached to increased penalties for subsequent drunk driving convictions, it follows that the New Jersey Legislature would impose a heavy burden on a defendant seeking to avoid those penalties by way of discounting a prior out-of-state conviction.

[Internal citations and footnote omitted.]

The judge quoted Administrative Directive #10-04: "It is inappropriate for the sentencing judge to rely on the representations of the prosecutor, defense counsel, or defendant as to the defendant's driving record." Finally, the judge concluded that defendant had not "met his burden on the issue of whether his 1991 New York conviction was based exclusively on the BAC of .06." We are satisfied that that decision was amply supported by the record.

There is no dispute that defendant was convicted under subsection [1] of the New York statute, that is, driving while impaired. On its face, it was not a per se offense. Thus even assuming defendant's BAC was .06, his New York conviction for "driving while impaired" must have been based upon other evidence.

In arguing that he should have been sentenced on this offense as a second offender, defendant relies in part upon the fact that he was sentenced as a first offender on his 1995 DWI offense in New Jersey. There is no basis for perpetuating that mistake. As we have said before in a case on nearly identical facts, "[d]efendant has already benefitted from the mistake made on that occasion, but he has no vested right in perpetuating that illegality." State v. Nicolai, 287 N.J. Super. 528, 532 (App. Div. 1996). As we explained in Nicolai, "[w]e would frustrate the legislative command if we were to conclude that defendant could avoid the statutorily required minimum sentence for a third offender merely because the municipal court imposed an illegal penalty on an earlier conviction and the prosecutor failed to challenge that error by filing an appeal." Id. at 531. We also noted in that case, as here, that "[n]o one seeks to compel defendant at this late date to serve the sentence that should have been imposed on that conviction." Id. at 532.

II

The State's new challenge to defendant's sentence raises a more difficult question: whether Luthe applies retroactively to this case. Writing for the panel in Luthe, Judge Conley emphasized the language of N.J.S.A. 39:4-50(a)(3), as amended in 2004:

For a third or subsequent violation, a person . . . 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 . . . .

[Luthe, supra, 383 N.J. Super. at 514 (quoting N.J.S.A. 39:4-50(2)(3)).]

"The language 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." Id. at 514. Thus the panel rejected the defendant's argument that she was entitled to an alternative sentence, such as work release. Id. at 515.

Judge Conley noted that legislative history surrounding the 2004 amendment was consistent with the conclusion that inpatient treatment is the only alternative to jail time for a third offender, and that this alternative applies only to a maximum of ninety of the required 180 days. Id. at 514 and n.2.

Simply put, N.J.S.A. 39:4-50(a)(3) does not authorize noncustodial alternatives to the mandatory 180 days confinement, whether that confinement be served entirely in jail or partially in an inpatient facility. There is no statutory authority for work release programs, out-patient treatment, or the like as an alternative.

[Id. at 515.]

The defendant in Luthe appealed her 180-day jail sentence, essentially claiming that because "other counties afford third-offenders alternative sentencing options," refusing to allow her the same option denied her equal protection of the law. Id. at 513. We rejected that argument and affirmed "the incarceration aspect" of her sentence. Ibid.

In light of the defendant's contention in that case that several counties routinely allowed non-custodial alternative sentences for a third DWI offense we ordered that "if disparity exists as to the use of these alternative programs, it must cease, consistent with our construction of the statute." Luthe, supra, 383 N.J. Super. at 516. Our decision included a recommendation to the Administrative Director of the Courts "for consideration of the need for such directives as may be appropriate to ensure uniform compliance with the statute." Ibid.

Here, when defendant was sentenced in 2004, he received the required 180-day jail sentence, with potential credit for up to 90 days in an appropriate inpatient alcohol treatment program, but with an additional potential for serving the remaining time in a "home custody program." The State neither appealed nor cross-appealed defendant's sentence, and were it not for defendant's own appeal, the issue would not have come before us. The State, in effect, seeks "pipeline retroactivity" to this case on direct appeal. See, e.g., State v. Natale, 184 N.J. 458, 494 (2005). Obviously, no issue of retroactivity arose in Luthe, and we had no reason to address its application to other cases pending on direct appeal. Nonetheless, "[a]n illegal sentence that has not been completely served may be corrected at any time without impinging upon double-jeopardy principles." State v. Austin, 335 N.J. Super. 486, 494 (App. Div. 2000) (citations omitted), certif. denied, 168 N.J. 294 (2001).

Defendant cites State v. Kyc, 261 N.J. Super. 104, 105, 109 (App. Div. 1992) (reinstating indictment for "escape" from a home confinement program), for the proposition that "home confinement" is a form of "official detention" and not a non-custodial option. We cannot determine the terms of the Bergen County Home Confinement Program that defendant's sentence contemplates. Nor can we determine, as a practical matter, whether there is any reasonable likelihood that defendant would qualify for such a program. Finally, we are not aware of any action the Administrative Director of the Courts may have taken in light of the recommendation in Luthe to consider adoption of a uniform policy with respect to third-offender DWI sentencing. Under the circumstances, we deem it appropriate for all of these issues to be addressed first in the Law Division. We therefore remand the sentencing aspect of defendant's conviction for reconsideration in light of State v. Luthe.

Defendant's conviction as a third offender is affirmed. The case is remanded for reconsideration of sentence, consistent with this opinion. We do not retain jurisdiction.

 

Defendant as well as the Law Division and Municipal Court judges have consistently referred to the New York conviction as a 1991 conviction. We therefore do the same. Whether it was a 1991 or 1992 conviction has no legal significance here.

(continued)

(continued)

11

A-4622-04T2

September 19, 2006