STATE OF NEW JERSEY v. DAVID B. NUSS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3732-06T53732-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID B. NUSS,

Defendant-Appellant.

_______________________________

 

Argued: December 19, 2007 - Decided:

Before Judges Axelrad and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, A-52-06.

Mario J. D'Alfonso argued the cause for appellant (D'Alfonso & Camacho, attorneys; Mr. D'Alfonso, on the brief).

Joseph H. Enos, Jr., Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Mr. Enos, on the brief).

PER CURIAM

Defendant David Nuss appeals from the Law Division's February l5, 2007 de novo denial of his municipal court post-conviction relief (PCR) petitions seeking to modify previously imposed sentences. Defendant's second DWI conviction arose out of his operation of a motor vehicle on October 29, 1998, and, among other sentencing provisions, defendant received a mandatory 730-day (two-year) term of license suspension from the Pennsauken Township municipal court on January 5, 1999. Defendant's third DWI conviction arose out of his operation of a motor vehicle on January 31, 1999, and, among other sentencing provisions, defendant received a mandatory 3650-day (ten-year) term of license suspension from the Clayton Borough municipal court on May 27. 1999. About seven years later, in July 2006, defendant filed motions in the municipal courts seeking to amend his sentences to run concurrently instead of consecutively. The motions were denied and he filed an appeal to the Law Division.

Although recognizing defendant's failure to raise this issue on direct appeal or within the five-year time limitation of a PCR petition, R. 7:10-2, the court elected to consider and reject on the merits defendant's argument that the Yarbough factors were misapplied to impose a consecutive suspension upon him. The court entered an order that defendant's ten-year suspension would run consecutive to his two-year suspension. Defendant appealed, arguing the court double counted aggravating factors in violation of the Yarbough doctrine and improperly applied the substantive elements of the Yarbough doctrine. We query whether the relief sought was even appropriately brought by way of PCR petition rather than by direct appeal. See R. 7:10-2(b)(3) (a PCR petition "shall be the exclusive means of challenging a judgment of conviction, except as otherwise required by the Constitution of New Jersey, but it is not a substitute for appeal from a conviction or for a motion incident to the proceedings in the trial court"); R. 7:10-2(c) (a PCR petition is cognizable if based on a substantial denial in the conviction proceedings of a defendant's state or federal constitutional rights; a sentencing court's lack of jurisdiction; an unlawful sentence; and any habeas corpus, common law, or statutory grounds for a collateral attack). Regardless, as urged by the State, defendant's application was clearly time-barred, as it was brought more than five years after imposition of the sentence sought to be attacked and there was not even an allegation that the delay in filing was due to defendant's excusable neglect, let alone proofs to support such claim. R. 7:10-2(b)(2). Accordingly, we affirm the order of the Law Division on procedural grounds and need not address the merits of defendant's arguments on appeal.

 
Affirmed.

State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014 (1986).

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A-3732-06T5

January 10, 2008