STATE OF NEW JERSEY v. TERRY EWALD-NEWMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6111-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY EWALD-NEWMAN,

Defendant-Appellant.

_________________________________

November 20, 2013

Submitted October 21, 2013 Decided

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Salem County, Municipal Appeal

No. MCA-04-12.

Helmer, Conley & Kasselman, P.A. attorneys

for appellant (Duane R. Bell, of counsel;

Patricia B. Quelch, of counsel and on the

brief).

John T. Lenahan, Salem County Prosecutor,

attorney for respondent (Joseph D. Rutala,

Assistant Prosecutor, of Counsel and on the brief).

PER CURIAM

Defendant Terry Ewald-Newman appeals from her conviction following a guilty plea in the municipal court to a violation of N.J.S.A. 39:4-129(b), leaving the scene of a motor vehicle accident. We affirm.

On January 17, 2012, defendant was driving when her car accidentally slid into a ditch. She left the scene to find a tow truck. The police arrived and eventually issued five summonses to defendant: driving while intoxicated (DWI), N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; leaving the scene of an accident, N.J.S.A. 39:4-129; failure to report an accident, N.J.S.A. 39:4-130; and failure to exhibit an insurance card, N.J.S.A. 39:3-29.

On March 21, 2012, defendant responded to the summonses with counsel at the Pennsville Municipal Court. Counsel announced to the judge that defendant and the prosecutor had reached an agreement on disposition of the charges. Defendant would plead guilty to leaving the scene of an accident and the prosecution would dismiss the other charges. Because a Supreme Court directive restricts dismissal of a DWI charge by plea bargaining, see State v. Kent, 391 N.J. Super. 352, 390 (App. Div. 2007); Guideline 4, Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII at 2501 (2014), the prosecutor explained why the DWI charge would be dismissed. The charge was based on a finding of Oxycodone in a urine sample provided by defendant after her arrest, and defendant had a prescription for the pain medication. The prosecutor had concluded the State could not prove that defendant's driving was impaired as a result of taking the prescribed Oxycodone.

The prosecutor also stated that the State was seeking a six-month suspension of defendant's driving privileges for the leaving-the-scene charge. The judge pointed out that a conviction of N.J.S.A. 39:4-129(a) for leaving the scene of an accident with injuries requires a one-year suspension of driving privileges. Defendant stated that she was not agreeable to a guilty plea with a one-year license suspension. The plea was not taken at that time. Instead, the court determined that both sides were ready for trial to be conducted the same day.

While waiting for the trial to begin, the parties negotiated further. They agreed to new terms by which defendant would plead guilty to a violation of N.J.S.A. 39:4-129(b), which only requires a six-month license suspension. That subsection of the statute prohibits leaving the scene of an accident that results only in damage to a vehicle.

Defendant returned to the court, and the judge engaged in further discussion on the record with defendant and her attorney about the decision to plead guilty. The court provided clear notice to defendant of the sentence she would receive with a guilty plea to the amended charge. Defendant agreed to the new terms and pleaded guilty to the amended charge. The municipal court sentenced her to the six-month license suspension, a fine of $200, and costs of $33.

Despite the plea agreement, defendant appealed the conviction to the Law Division pursuant to Rule 3:23. Counsel for defendant argued in the Law Division that the conviction should be vacated and the leaving-the-scene charge dismissed because N.J.S.A. 39:4-129(b) requires proof of damage to the vehicle and no such proof was presented during the plea hearing in the municipal court. Counsel argued that defendant had not provided an adequate factual basis for her guilty plea.

Judge Jean B. McMaster reviewed the matter de novo based on the record in the municipal court. R. 3:23-8(a). By oral decision, she determined that an adequate factual basis was presented for the municipal court's acceptance of the guilty plea and that defendant had admitted damage to her vehicle as a result of the accident. The judge found defendant guilty of the charge and re-imposed the same penalties. The Law Division's order of July 9, 2012, implemented the judge's decision but also stayed execution of defendant's sentence pending further appeal.

On appeal before us, defendant argues that N.J.S.A. 39:4-129(b) requires proof of damage to a vehicle in an amount of at least $500 and that there was no proof of any such damage to defendant's vehicle or any other property. Defendant repeats her argument that she did not provide an adequate factual basis for her guilty plea. She also argues for the first time that she should be permitted to withdraw her guilty plea under the standard established in State v. Slater, 198 N.J. 145 (2009). We find no merit in any of these arguments.

Except for adequacy of the factual basis, defendant's other arguments on appeal were not made in the municipal court or in the Law Division. We may disregard the new arguments, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); State v. Marain, 322 N.J. Super. 444, 447 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), but we will consider them to avoid further delay and expense in reaching a resolution of this case.

We conduct plenary review of defendant's argument regarding the interpretation and proper application of the statute. See McGovern v. Rutgers, the State Univ. of N.J., 211 N.J. 94, 107-08 (2012); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The statute to which defendant pleaded guilty provides in relevant part:

The driver of any vehicle knowingly involved in an accident resulting only in damage to a vehicle, including his own vehicle, or other property which is attended by any person

. . . in every event shall remain at the scene of such accident until he has fulfilled the requirements of subsection (c) of this section. . . .

[N.J.S.A. 39:4-129(b).]

Subsection (c) of the statute requires that the driver exchange information with others involved in the accident, render reasonable assistance to any injured person, and report the accident to a police station if the police are not at the scene. N.J.S.A. 39:4-129(c).

Defendant argues that the word "accident" in the statute is not defined and that it should be restricted in conformity with the meaning of that term in N.J.S.A. 39:4-130, that is, requiring proof that the property of any one person was damaged "in excess of $500." The latter statute fixes the $500 damage threshold in imposing an obligation on a driver involved in an accident to provide a detailed written report of the accident to the local police or the State Police, and to the Motor Vehicle Commission "on forms furnished by it." Ibid. The threshold monetary amount is not included in N.J.S.A. 39:4-129 pertaining to the requirement that the driver remain at the scene of an accident.

Moreover, reading into N.J.S.A. 39:4-129(b) a $500 damage threshold would render subsection (e) of the same statute contradictory and superfluous. That subsection provides: "There shall be a permissive inference that the driver of any motor vehicle involved in an accident resulting in injury or death to any person or damage in the amount of $250.00 or more to any vehicle or property has knowledge that he was involved in such accident." N.J.S.A. 39:4-129(e). That is, subsection (e) of the statute under which defendant was convicted addresses the "knowingly" element of a violation. By establishing an inference that a driver whose vehicle has been damaged at the $250 level knows that the vehicle has been in an accident, the Legislature clearly did not intend that a $500 threshold would apply before defendant can even be charged with involvement in an accident. The $250 threshold for an inference of the driver's knowledge means that the word "accident" in the statute is not limited by any monetary threshold.

We reject defendant's argument that defendant could not be convicted of leaving the scene of an accident without proof of a monetary amount of damage to her vehicle.

We also reject defendant's argument that the municipal court did not establish a factual basis for her guilty plea. After defendant admitted she had been involved in an "accident" on January 17, 2012, the court asked her about the resulting property damage. Defendant answered: "it was just my car and my head, that's it." While the record does not establish what injury occurred to defendant's head, or what specific damage was done to her car, the answer was a sufficient admission that property damage had resulted.

Finally, we reject defendant's argument that she should be permitted to withdraw her guilty plea on the ground that she pleaded guilty to a charge for which there was insufficient factual proof. Not only was there sufficient proof, but the plea was the result of extensive negotiations in which both defendant and her attorney participated actively. The prosecution dismissed four other charges and limited the license suspension to six months before defendant agreed to plead guilty. She has never claimed she was innocent of all the charges that were brought against her.

The factors established by Slater, supra, 198 N.J. at 158-61, weigh against defendant's belated effort to withdraw from her negotiated plea agreement. In particular, because defendant's application followed her sentencing, she "must show [her] conviction was manifestly unjust." Id. at 156. She has not made such a showing.

Affirmed.