STATE OF NEW JERSEY v. PETER G. CAPLAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1988-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER G. CAPLAN,

Defendant-Appellant.

_________________________________

October 30, 2013

Argued October 21, 2013 Decided

Before Judges Ashrafi and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Municipal Appeal

No. 2012-054.

Peter G. Caplan, appellant, argued the cause pro se.

Stephen A. Pogany, Special Deputy Attorney

General/Acting Assistant Prosecutor, argued

the cause for respondent (Carolyn A. Murray,

Acting Essex County Prosecutor, attorney;

Mr. Pogany, on the brief).

PER CURIAM

Defendant Peter Caplan appeals from an order of the Law Division denying his motion to modify his sentence on his third conviction for driving while intoxicated (DWI). We affirm.

Defendant was first convicted of DWI, N.J.S.A. 39:4-50, in the Bloomfield Municipal Court in May 1991 for an offense that occurred on May 11, 1990. On May 31, 2000, he was arrested for DWI a second time. He was convicted after trial in September 2000, again in the Bloomfield Municipal Court. Because the second conviction was for an offense that occurred slightly more than ten years after the first offense, the step-down provision of N.J.S.A. 39:4-50(a) applied, and defendant was again sentenced as a first-time DWI offender.

The transcript of the second DWI conviction does not explicitly establish that defendant was given written advice or informed orally of the progressively enhanced penalties that would apply if he were convicted of another DWI, as required by N.J.S.A. 39:4-50(c).1 The transcript includes a statement by the judge at the end of the proceedings as follows: "Mr. Caplan, I'm going to ask you to acknowledge receipt of the fines and penalties[,]" and defendant responded: "Thank you, Your Honor." Defendant disputes that this exchange reflects written advice being given as to future DWI penalties. By its decision from which defendant now appeals, the Law Division found that "there is no evidence that appellant received written notice of enhanced penalties at the time of the 2000 conviction[,]" and the transcript indicates the municipal court judge did not give such oral advice.

On October 29, 2009, defendant was arrested and charged in Montclair with a third DWI offense. The matter was transferred to the North Caldwell Municipal Court. In January 2010, defendant withdrew from a stated intent to plead guilty to the DWI charge when the North Caldwell judge informed him that he would be sentenced as a third-time offender in accordance with State v. Burroughs, 349 N.J. Super. 225, 227 (App. Div.), certif. denied, 174 N.J. 43 (2002). The case then returned to Montclair, and defendant pleaded guilty to the DWI charge on March 5, 2010. For reasons that are not clear to us because defendant has not filed a transcript of the March 5, 2010 proceedings in the Montclair Municipal Court, defendant was sentenced in part as a third-time offender and in part as a second-time offender. The municipal court judge imposed a fine of $1006 and license suspension of ten years in accordance with N.J.S.A. 39:4-50(a)(3) for a third offense, but the judge did not sentence defendant to the mandatory 180-days of imprisonment required by the statute for a third offense.

More than two years later, in August 2012, defendant moved in the Montclair Municipal Court to modify his sentence and to resentence him in all respects as a second-time offender. A different municipal court judge denied the motion. On de novo appeal to the Law Division in accordance with Rule 3:23, Superior Court Judge Ramona Santiago issued a written opinion also denying the motion for modification of sentence. This appeal followed.

Defendant argues that the failure of the Bloomfield Municipal Court to advise him in 2000 of the enhanced penalties that would apply to subsequent DWI offenses violated principles of fundamental fairness when he was sentenced as a third-time offender in 2010, and also was contrary to the Legislature's intent in mandating by statute that sentencing courts advise defendants of the progressively enhanced penalties of subsequent DWI convictions. Defendant acknowledges that, as an attorney and a prior DWI offender, he was aware of the enhanced penalties that apply under N.J.S.A. 39:4-50(a), but he claims he was not aware in 2000 that the 1991 offense would count again as a prior offense if he was convicted in the future on a DWI charge.

The fallacy of defendant's argument is that the statutorily required advice on enhanced penalties would not have included information in accordance with the legal effect of our decision in Burroughs, supra, 349 N.J. Super. at 227. That is, the municipal court judge is only required to inform a defendant at sentencing of enhanced penalties. The judge is not required to give legal advice about whether and how prior offenses will count toward determining the appropriate range of penalties.

Judge Santiago cogently and comprehensively set forth reasons for imposition of sentence on defendant as a third-time offender. We agree with her written decision dated December 18, 2012.

1 In relevant part, N.J.S.A. 39:4-50(c) provides:

Upon conviction of a violation of this section, the court shall notify the person convicted, orally and in writing, of the penalties for a second, third or subsequent violation of this section. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of this section.