STATE OF NEW JERSEY v. BARRINGTON MCDONALD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4937-07T44937-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARRINGTON MCDONALD,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 13, 2010 - Decided

Before Judges Axelrad, Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-03-0503.

Yvonne Smith Segars, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs).

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant entered a guilty plea to second-degree assault by auto for driving recklessly while under the influence within 1000 feet of school property which resulted in serious bodily injury, N.J.S.A. 2C:12-1c(3)(a) (assault by auto in a school zone), driving while intoxicated, N.J.S.A. 39:4-50 (DWI), and driving while his privileges were suspended, N.J.S.A. 39:3-40 (DWS). His timely motion to withdraw his guilty plea was denied and he now appeals. We affirm defendant's convictions for assault by auto in a school zone and DWI, and remand for a hearing regarding defendant's motion to withdraw his guilty plea to DWS.

The charges arise from an accident that occurred at approximately 2:00 a.m. on January 14, 2007 in Atlantic City. Defendant was returning from a convenience store to the Claridge Casino on Pacific Avenue, a four lane, lighted road, when he saw Robert Fields standing on the double yellow divider lines. Fields had crossed defendant's lane of traffic and was beginning to walk into the opposite lane of traffic when he backed up into defendant's lane of traffic. Defendant struck Fields, who hit the windshield and was flung more than eighty feet onto the sidewalk on the opposite side of the street. Defendant, a registered nurse, cared for Fields, who suffered a head injury and multiple fractures, until paramedics arrived.

Defendant agreed to provide breath and blood samples, which showed a blood alcohol content of .19. Defendant also gave police a statement in which he admitted striking Fields, consuming alcoholic beverages, and that his driver's license was suspended.

He was arrested on charges of assault by auto in a school zone, N.J.S.A. 2C:12-1c(3), and causing injury while driving privileges suspended, N.J.S.A. 2C:40-22b. Summonses were also issued for DWI; DWS; driving while intoxicated in a school zone, N.J.S.A. 39:4-50; driving while unlicensed, N.J.S.A. 39:3-10; reckless driving, N.J.S.A. 39:4-96; and careless driving for speeding, N.J.S.A. 39:4-97. Defendant was indicted on March 6, 2007 on the following charges: second-degree assault by auto in a school zone, N.J.S.A. 2C:12-1c(3)(a) (count one), and fourth-degree causing serious bodily injury while driving privileges suspended, N.J.S.A. 2C:40-22b (count two).

Defendant entered a guilty plea pursuant to a plea agreement to assault by auto in a school zone, DWI, and DWS. The prosecutor agreed to dismiss the remaining charges against him and to recommend that defendant be sentenced as a third-degree offender with a sentence not to exceed a New Jersey State Prison term of three years.

The transcript of May 21, 2007 reflects the following colloquy with respect to defendant's factual basis for his guilty plea to N.J.S.A. 2C:12-1c(3)(a):

COURT: All right, Mr. McDonald, the charge is that on January 14th, of this year, in Atlantic City, you drove a vehicle recklessly while driving and more specifically while intoxicated and also within a thousand feet of school property and caused serious bodily injury to Robert Fields; are you guilty of that offense?

DEFENDANT: Yes, I am.

After additional questioning, the court began to announce its finding that the defendant had knowingly, intelligently and voluntarily waived his rights in entering the plea when the prosecutor interrupted:

PROSECUTOR: Judge. Judge. I'm sorry. And, sir, you don't dispute it was within a thousand feet of Our Lady of the Sea School, where the accident occurred?

DEFENDANT: I didn't see it, but I might have missed it, okay.

At defendant's request, his sentence was postponed several times. After receiving a "school zone map" from the State, defense counsel advised the court on August 10, 2007 that "[t]he school zone map . . . shows basically that he is right just within or just on the edge of the sweep of the - the ambit of the school zone" and that "the school zone may include property that is not used for school purposes." Counsel argued that, although defendant "may have voluntarily, knowingly provided a factual basis [for his guilty plea], it may be supported by a fact which turns out to be incorrect[.]" Sentencing was delayed again to permit counsel to discuss this issue further with defendant.

On August 31, 2007, defense counsel asked for another continuance so that a surveyor could be retained to determine whether the prohibited conduct occurred within 1000 feet of school property. The issue to be raised in the motion was described as "that the Our Lady Star of the Sea property is not included in the school zone property. In other words, they should . . . have measured from the school, not the edge of the church property, when they designed or when they put together the school zone map." Defense counsel agreed with this description and also added that defendant's location at the time of the accident might be beyond the school zone even as defined on the school zone map. The court granted the request for a continuance, set a deadline for the filing of a motion to withdraw defendant's guilty plea, and gave counsel a briefing schedule.

Defendant's motion to withdraw his guilty plea relied upon defendant's certification, the transcript of his guilty plea and the argument of counsel. In his certification, defendant contended that he lacked sufficient knowledge at the time of his plea to provide a factual basis for committing the prohibited conduct within a school zone because he "did not know whether or not the school zone radiating from Our Lady Star of the Sea Regional School . . . swept across or included the exact accident scene[.]" He stated further that he became aware that he had "improvidently and unknowingly" entered a guilty plea when he received a survey prepared on his behalf that showed that it was the rectory and front garden area that was within a 1000 foot radius of the accident scene. Defendant did not contend that Our Lady Star of the Sea Regional School was not a "school" within the ambit of N.J.S.A. 2C:12-1c(3)(a).

On the return date for the motion, defense counsel argued that defendant failed to provide a factual basis for the school zone aspect of his guilty plea to the assault by auto charge. He contended that defendant's response to the prosecutor's question "was not unequivocal" and that defendant had "not [been] forced to actually answer the question do you dispute or not that it's a school zone." The court denied the motion without a hearing and found that defendant had given a satisfactory factual basis for the guilty plea, apparently had "buyer's remorse" about the plea, and remained unable to show that the offense did not occur in a school zone.

Pursuant to the terms of the plea agreement, the second-degree offense of assault by auto in a school zone charge was treated as a third-degree offense at sentencing and defendant was sentenced to a prison term of three years with credit for 235 days in custody. His driver's license was suspended for a period of twelve months and he was assessed appropriate fines and penalties. For the charges of DWI and DWS, the court imposed consecutive county jail sentences of 90 days and 60 days respectively, consecutive twelve month suspensions of his driver's license and additional fines and penalties.

In this appeal, defendant raises the following issues:

POINT I

DEFENDANT'S GUILTY PLEA SHOULD HAVE BEEN VACATED.

A. BASED ON THE NATURE AND STRENGTH OF MR. MCDONALD'S COLORABLE CLAIMS OF INNOCENCE, THE TRIAL JUDGE ERRED IN DENYING MR. MCDONALD'S MOTION TO WITHDRAW HIS PLEA.

i. THERE IS COMPELLING EVIDENCE THAT THE ACCIDENT OCCURRED MORE THAN 1000 FEET FROM OUR LADY STAR OF THE SEA SCHOOL AND MR. MCDONALD WAS THEREFORE NOT GUILTY OF SECOND-DEGREE ASSAULT BY AUTO WHILE INTOXICATED IN A SCHOOL ZONE AS SET FORTH IN N.J.S.A. 2C:12-1c(3)(A).

ii. EVEN IF THE ACCIDENT OCCURRED WITHIN 1000 FEET OF THE BUILDING LABELED OUR LADY STAR OF THE SEA SCHOOL ON THE STATE'S MAP, THAT BUILDING DOES NOT QUALIFY AS A "SCHOOL" WITHIN THE MEANING OF N.J.S.A. 2C:12-1c(3)(A).

iii. EVEN IF THE ACCIDENT OCCURRED WITHIN A SCHOOL ZONE, N.J.S.A. 2C:12-1c(3)(A) DID NOT APPLY BECAUSE THE ACCIDENT OCCURRED AT 2:00 A.M., WHEN NO SCHOOL CHILDREN WERE OR SHOULD HAVE BEEN PRESENT.

iv. THERE WAS NO FACTUAL BASIS FOR THE DRIVING WHILE SUSPENDED CHARGE, AS MR. MCDONALD'S LAST VALID DRIVER'S LICENSE HAD SIMPLY EXPIRED.

B. THE INTEGRITY OF THE PLEA BARGAINING PROCESS WAS QUESTIONABLE BASED ON THE FACT THAT THE PLEA WAS ENTERED SHORTLY AFTER THE INDICTMENT WAS RETURNED, WITHOUT TIME FOR SUFFICIENT INVESTIGATION TO BE DONE, AND AT THE TIME OF THE PLEA, MR. MCDONALD WAS REPRESENTED BY A LAWYER WHOM HE HAD JUST MET AND WHO WAS UNFAMILIAR WITH HIS CASE.

C. THE STATE WOULD NOT HAVE SUFFERED PREJUDICE HAD MR. MCDONALD BEEN PERMITTED TO WITHDRAW HIS PLEA.

POINT II

THE COURT FAILED TO MERGE CERTAIN OFFENSES, IMPOSED FINES AND PENALTIES NOT PROVIDED FOR BY STATUTE OR BY THE TERMS OF THE PLEA AGREEMENT, AND IMPOSED AN EXCESSIVE SENTENCE, INCLUDING UNWARRANTED CONSECUTIVE TERMS.

A. MERGER.

B. PENALTIES NOT PROVIDED BY STATUTE.

C. THE TRIAL COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS.

D. CONSECUTIVE TERMS WERE UNWARRANTED.

E. THE PLEA AGREEMENT EXPRESSLY INCLUDED THE TWO MOTOR VEHICLE INFRACTIONS WITHIN THE SENTENCE TO BE RECOMMENDED BY THE STATE. THEREFORE, THE PENALTIES IMPOSED BY THE COURT EXCEEDED THE PARAMETERS OF THE PLEA AGREEMENT AND MUST BE VACATED.

In a supplemental pro se brief, defendant presents the following arguments:

POINT I

THE AFORESAID RETRAXIT PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY IN THE ABSENCE OF FULL DISCOVERY BY THE STATE HAVING BEEN PROVIDED TO AND REVIEWED WITH THE DEFENDANT BY PREDECESSOR COUNSEL.

POINT II

THE SAID PLEA WAS NOT MADE KNOWINGLY IN THE ABSENCE OF AN ADEQUATE PRE-TRIAL INVESTIGATION CONCERNING THE AMBIT AND EXTENT OF THE [DELIMITED] SCHOOL ZONE ALLEGEDLY ENCOMPASSING THE LOCUS OF THE CRIME SCENE.

POINT III

THE SAID PLEA WAS IMPROPER WITHOUT AN ADEQUATE FACTUAL BASIS BEING FURNISHED TO THE COURT ON THE RECORD AT THE RETRAXIT HEARING CONCERNING SCHOOL ZONE APPLICABILITY.

POINT IV

THE DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT V

THE DEFENDANT HAS [A] REASONABLE AND [MERITORIOUS] BASIS TO DISPUTE THE SCHOOL ZONE ALLEGATION CONTAINED WITHIN THE AFORESAID COUNT OF THE INDICTMENT AND THE BASIS FOR THE 2ND DEGREE DESIGNATION OF SAID COUNT.

POINT VI

THE SAID RETRAXIT PLEA TO THE SAID COUNT WAS OTHERWISE IMPROVIDENTLY ENTERED BY THE DEFENDANT AND IS ACCORDINGLY SUBJECT TO WITHDRAW[A]L AND REINSTATEMENT OF HIS FORMER PLEA OF NOT GUILTY TO SAID COUNT.

After carefully considering the record and briefs, we are satisfied that none of defendant's arguments in Point I have merit and that the arguments presented in his pro se brief and in Points I.A.(iii) and (iv) and I.B. are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

I

Because defendant moved to withdraw his guilty plea prior to sentencing, the motion is governed by Rule 3:9-3(e), which permits the withdrawal of a guilty plea in "the interests of justice." In State v. Slater, 198 N.J. 145 (2009), the Supreme Court held that "trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 157-58. Slater was not decided when the trial court ruled on defendant's motion to withdraw his plea. However, the record permits us to employ the Slater analysis here.

We can easily dispose of the third and fourth factors. Neither party has identified any unfair prejudice to the State or unfair advantage to defendant that would result from granting defendant's motion, and, given defendant's blood alcohol content, his admissions and the immutable facts of the accident, a trial of this matter would be relatively straightforward. Although defendant pled guilty pursuant to a plea bargain, "the vast majority of criminal cases are resolved through plea bargains" and, therefore, we do not give this factor "great weight in the balancing process." Id. at 161.

In this case, the first and second factors are intertwined. Defendant's stated reason for withdrawal is the lack of a factual basis for one element of the offense - whether the prohibited conduct occurred within 1000 feet of school property. He argues that his own statements were insufficient at the time of the plea. He also argues that the accident did not occur within the school zone, based upon a legal argument that the accident occurred within 1000 feet of the school property but more than 1000 feet from the school. Therefore, an evaluation of the strength of defendant's reasons depends in large measure upon a determination whether his legal argument presents a colorable claim of innocence.

"The clearest indication of a statute's meaning is its plain language." G.S. v. Dep't of Human Servs., 157 N.J. 161, 172 (1999). There is a strong presumption "'that the legislative purpose is expressed by the ordinary meaning of the words used.'" Ardestani v. INS, 502 U.S. 129, 136, 112 S. Ct. 515, 520, 116 L. Ed. 2d 496, 505 (1991) (internal citations omitted). Therefore, we turn first to the plain language of the statute, giving "words their ordinary meaning absent any direction from the Legislature to the contrary. If the plain language leads to a clear and unambiguous result, then [the] interpretive process is over." In re Tenure Hearing of Young, 202 N.J. 50, 63 (2010). Because identical language is used to define "school zone" in both the assault by auto "school zone" statute and in the drug "school zone" statute, N.J.S.A. 2C:35-7, our review is also properly informed by cases that have interpreted the scope and application of the school zone in drug cases. See State v. Trotman, 366 N.J. Super. 226, 236 (App. Div. 2004) (applying the language and case law from N.J.S.A. 26:35-7 to identical language in N.J.S.A. 2C:35-7.1).

For the "school zone" element of N.J.S.A. 2C:12-1c(3)(a) to apply, the prohibited conduct must occur

on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property.

Similar to provisions in N.J.S.A. 2C:35-7, the narcotics school zone statute, N.J.S.A. 2C:12-1c(3)(a) explicitly provides that it shall not be a defense to a violation of this subsection

that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property . . . . [or] . . . that no juveniles were present on the school property . . . at the time of the offense or that the school was not in session.

[Ibid.]

In discussing the narcotics school zone statute, N.J.S.A. 2C:35-7, the Supreme Court observed that the issue is not whether defendant knew that the building was used for school purposes but whether "an objectively reasonable person could know that the school property was used regularly, consistently, and actually for school purposes." State v. Ivory, 124 N.J. 582, 591-92 (1991). Therefore, although the location of the prohibited conduct within the school zone was an element of the offense, defendant's knowledge that he was within the school zone was not an element of the offense to which he pled guilty. Under the circumstances, defendant's admission of guilt to the charge, his acquiescence in failing to dispute that the conduct was within 1000 feet of school property, and his acknowledgement that he might have missed the school's presence provided a sufficient basis for the court to "satisfy itself . . . that an adequate factual basis exists for the plea." State ex rel. T.M., 166 N.J. 319, 326 (2001). See R. 3:9-2.

We next consider defendant's argument that the school provision does not apply because the school zone should be measured from the school, rather than boundaries of the property. Our Lady of the Sea School is situated on property that includes a church, a rectory, a convent and garden areas. Defendant argues that because the accident did not occur within 1000 feet of the school, the prohibited conduct did not occur within 1000 feet of property used for school purposes.

The plain language of N.J.S.A. 2C:12-1c(3)(a) defines the subject area not as the school or as 1000 feet from the school, but as "any school property . . . or within 1,000 feet of such school property." (Emphasis added). Moreover, the interpretation urged by defendant would lead to an analysis that dissected school property to scrutinize what use was made of the particular part of the property that lay within 1000 feet of the prohibited conduct. This result is plainly at odds with the legislative intent to create a "'safety zone' around schoolyards." See State v. Thomas, 132 N.J. 247, 253-54 (1993) (discussing the purpose of N.J.S.A. 2C:35-7) (quoting Official Commentary to the Comprehensive Drug Reform Act (L. 1987, ch. 106), 9 Crim. J.Q. 149, 157 (1987)). See also State v. Lewis, 185 N.J. 363, 370 (2005) (purpose of N.J.S.A. 2C:35-7.1(a) is to create a safety zone in and around public parks from exposure to the drug culture and perils of drug trafficking).

In Ivory, supra, 124 N.J. at 588, the Supreme Court addressed the question as to "what constitutes 'school property used for school purposes'" under N.J.S.A. 2C:35-7. The property in issue was an athletic field leased by Red Bank Catholic High School and owned by the Red Bank Board of Education. The Court rejected "the notion that the school property must be used exclusively or primarily for school purposes" as having "no support anywhere." Id. at 588. Recognizing the breadth of protection intended by the Legislature, the Court stated, "The Legislature intended broad protection and certainly did not intend to protect only students in areas around a single-use facility." Id. at 589. The Court also recognized that "use for school purposes" was not limited to strictly didactic activities. Because the Legislature understood that schools use some property for other purposes, such as athletic or recreational events, such uses constituted use for school purposes as well. Ibid. See also State v. White, 360 N.J. Super. 406, 412 (App. Div. 2003) (evidence that a community center was used as a "homework club" for elementary students from 3 p.m. to 5 p.m., in addition to many other uses, was sufficient to allow a jury to find that the facility was operated for school purposes).

In summary, to qualify as property used for school purposes under the narcotics school zone, the property need not be used exclusively or even primarily for school purposes; school purposes are not limited to reading, writing and arithmetic activities and, indeed, it is not even necessary that a school be present somewhere on the property for the property to be "used for school purposes." See White, supra, 360 N.J. Super. at 412. The overarching legislative purpose for N.J.S.A. 2C:35-7 as well as N.J.S.A. 2C:12-1c(3)(a) is to create a safety zone that will protect children from the harm caused by prohibited conduct. The Legislature has seen fit to define that zone expansively, not limiting its application to times when children are present. We are, therefore, satisfied that the 1000 foot radius subject to N.J.S.A. 2C:12-1c(3)(a) extends from the boundary of the property, and not the footprint of the school itself.

II

Defendant argues that the trial court erred in: failing to merge his convictions for assault by auto in a school zone and DWI; imposing consecutive sentences on the Title 39 offenses; weighing the aggravating and mitigating factors; and imposing sentences for the Title 39 offenses that exceeded the parameters of the plea agreement. The State concedes that the imposition of a VCCB penalty and SNSF (Safe Neighborhoods Services Fund) assessment for a conviction of N.J.S.A. 39:3-40 was improper.

Appellate review of a sentence entails the following determinations:

(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.

[State v. Megargel, 143 N.J. 484, 493 (1996).]

Applying those standards here, we are satisfied that defendant's challenge to the court's identification and weighing of aggravating and mitigating factors lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In addressing the merger issue, we focus on the "'elements of the crimes and the Legislature's intent in creating them,' and on 'the specific facts of each case.'" State v. Hill, 182 N.J. 532, 542 (2005) (citation omitted).

The overall principle guiding merger analysis is that a defendant who has committed one offense "'cannot be punished as if for two.'" Convictions for lesser-included offenses, offenses that are a necessary component of the commission of another offense, or offenses that merely offer an alternative basis for punishing the same criminal conduct will merge.

[Ibid.]

A necessary element of N.J.S.A. 2C:12-1c(3)(a) is that defendant was "in violation of [N.J.S.A.] 39:4-50." Accordingly, the conviction for DWI must be merged into the conviction for assault by auto in a school zone. However, the DWI penalties mandated by N.J.S.A. 39:4-50, including the license suspension, survive this merger. State v. Wade, 169 N.J. 302 (2001); State v. Baumann, 340 N.J. Super. 553, 556-57 (App. Div. 2001). The transcript of defendant's guilty plea reflects that he was advised that he was subject to a license suspension of up to two years on his conviction for assault by auto in a school zone. As a result, the consecutive ninety-day sentence imposed on the DWI conviction must merge into the sentence imposed on the assault by auto in a school zone conviction and the remaining fines and penalties will be left undisturbed.

DWS is a wholly separate offense and does not merge into either conviction. However, flaws in both the guilty plea and sentence require a remand on this charge.

Defendant correctly argues that he was not specifically apprised of the statutory penalties that would be imposed upon conviction for DWS or that, pursuant to N.J.S.A. 39:3-40(e), the court was required to impose a period of imprisonment for not less than 45 days or more than 180 days. While it was not necessary for defendant to be informed of the collateral consequences of his plea, such as the further suspension of his driver's license, it was necessary for the court to inform him of the penal consequences of his plea. See R. 3:9-2 (defendant's "understanding of . . . the consequences of the plea" is a prerequisite to the acceptance of a guilty plea). See also State v. Manzie, 168 N.J. 113, 118 (2001) (Stein, Coleman, and Zazzali, J.J., concurring); State v. Howard, 110 N.J. 113, 122 (1988); State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986). See also State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003) ("[A] guilty plea entered without sufficient understanding of the penal consequences is ordinarily invalid."). As a result, this matter must be remanded for a determination as to whether defendant may withdraw his guilty plea to the DWS charge.

We also note the following errors in the sentence that must be corrected in the event that defendant's plea is not withdrawn. The sentence imposed on the DWS charge was illegal as the fine of $1000 and the one-year suspension of license exceed the penalties authorized by N.J.S.A. 39:3-40(a) and (d), which authorize only a fine of $500 and a period of suspension not to exceed six months. In addition, as the State concedes, the imposition of a VCCB penalty and SNSF for a conviction of N.J.S.A. 39:3-40 was improper. Finally, the court should review the criteria established in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) to determine the appropriateness of either a consecutive or concurrent sentence and set forth its reasons for such determination. See State v. Carey, 168 N.J. 413, 424 (2001).

 
In sum, we affirm defendant's convictions for assault by auto in a school zone and DWI, and remand for further proceedings in light of this opinion as to the DWS conviction.

N.J.S.A. 2C:35-7(f) authorizes municipalities and counties to produce a map "for the purpose of depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board[.]"

Defendant's argument in Point I.A(iii) is accordingly lacking in merit.

The Court explained that the application of the school zone provision required a "two-pronged inquiry," (1) whether the property constitutes "school property," and (2) whether the property is "used for school purposes." Ivory, supra, 124 N.J. at 587. Defendant argues for the first time on appeal that the evidence fails to satisfy the first prong because the property is not owned by or leased to a school or school board. "The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Before the trial court, defendant argued that the application of the school zone provision turned on whether the accident occurred within 1000 feet of the school and implicitly conceded that the school fell within the definition used in the statute. Therefore, we will not entertain the argument he raises for the first time on appeal. See id. at 20; State v. Summers, 176 N.J. 306, 316 (2003).

In light of our conclusion that the DWI sentence merges into the assault by auto in a school zone conviction and our disposition of this point, it is unnecessary for us to consider whether the sentences imposed violated the terms of the plea agreement.

(continued)

(continued)

22

A-4937-07T4

August 25, 2010