STATE OF NEW JERSEY v. ANGELA PIGNUOLO

NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-4857-07T4

STATE OF NEW JERSEY,

            Plaintiff-Respondent,

            v.

ANGELA PIGNUOLO,

          Defendant-Appellant.
_______________________________

            Submitted:    December 9, 2009 - Decided: January 5, 2010

            Before Judges Stern and Lyons.

            On appeal from the Superior Court of New
            Jersey,   Law   Division,   Criminal  Part,
            Burlington County, Municipal Appeal No. 09-
            08.

            Edward J. Crisonino, attorney for appellant.

            Robert   D.   Bernardi,   Burlington   County
            Prosecutor,     attorney    for    respondent
                                                Assistant
            (Jennifer    B.     Paszkiewicz,
            Prosecutor, of counsel and on the brief).

PER CURIAM

    Defendant appeals from a judgment of conviction for Driving

While Intoxicated, N.J.S.A. 39:4-50.          She was sentenced in the

municipal    court   as   a   second   offender   to   forty-five   days   in

                                                                    years.1
custody   and    her    license   was   suspended     for    two                 The

custodial portion of the sentence was stayed pending appeal to

the Law Division.          Defendant was also convicted of reckless

driving which she does not challenge before us.

      We are told that defendant's car was observed by passing

motorists stopped half way off the road.                  Her feet were hanging

out of her car with her head to her chest.                 She was unresponsive

and   spitting    up.      When   helped     from   the     vehicle,      defendant

stumbled to a fence and back to the passenger side of the car.

      We are further advised that the responding police officer

saw that defendant's eyes were glassy, he could smell alcohol on

her   breath    and     that   defendant    told    him    that     she   had   been

drinking at the Marlton Tavern.               She lost consciousness and

emergency medical technicians (EMTs) were called to the scene.

Defendant had a .237 BAT.           Intoxication was stipulated but the

question of how she got to the scene was not.

      Defendant's argument, as stated in the table of contents of

defendant's brief, is "the defendant should have been convicted

of    third    degree    offenses."         Only    one     legal    argument     is

presented.      The point heading is "the defendant should not have

been sentenced to a period of incarceration."                 The conviction is


1
  The municipal court transcript has not been presented on the
appeal to us.



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not challenged.        Defendant challenges her sentence because it

was not imposed de novo in the Law Division, the aggravating and

mitigating      factors   were          neither      listed     nor    balanced,       and   no

reasons   were      stated    to        justify      the     forty-five       day   custodial

term.

       Subtitle 3 of the Code of Criminal Justice, relating to

sentencing, applies to the sentencing process for motor vehicle

offenses including DWI convictions although the Code otherwise

                                  See N.J.S.A. 2C:1-4c; 2C:1-5b; 2C:1-14k;
generally does not.

State   v.     Taimanglo,         403    N.J.       Super.    112     (App.    Div.    2008),

certif. denied, 
197 N.J. 477 (2009).                            After defense counsel

stated that he did not have "anything that [he wanted the Law

Division]      to   evaluate       further          with   respect     to     the    issue   of

sentencing,"        the judge merely said "having made an independent

review of the circumstances and facts in this case that the

sentence imposed in the court below was appropriate and legal

for the offenses charged, and I will impose the same sentence as

was imposed in the court below . . . ."                              The sentence should

have    been    imposed      de    novo,     although         not     greater       than   that

imposed by the municipal judge, State v. Taimanglo, supra.                                 As a

custodial      sentence      was        imposed      and     there    was     no    mandatory

incarceration for the offense, we remand for de novo sentencing,




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                                                3

including a necessary statement of reasons for the time imposed.2

A defendant may file a municipal appeal, if for no other reason,

to obtain a new sentencing procedure and reconsideration of his

or her sentence.      See State v. Mull, 
30 N.J. 231, 239-40 (1959).

      By remanding to the Law Division for resentencing, we do

not   address   the   "excessiveness"   issue   or   conclude   that   the

sentence is excessive.

      Remanded for resentencing.





2 Rule 7:9-1(b) requires the municipal court to "state its
reasons for imposing the sentence, including its findings
respecting the criteria prescribed by N.J.S.A. 2C:44-1 to 2C:44-
3 for withholding imprisonment. . . .      The court shall also
state its factual basis for its finding of particular
aggravating or mitigating factors affecting sentence." R. 7:9-
1(b).    We need not develop what is meant by the word
"imprisonment" for purposes of this Rule. As a sentence must be
imposed de novo upon entry of a conviction on municipal appeal,
this Rule must be honored.



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