STATE OF NEW JERSEY v. BRENDAN GALDIERI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRENDAN GALDIERI,

Defendant-Appellant.

____________________________

March 24, 2015

Submitted March 10, 2015 Decided

Before Judges Reisner and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 12-12-0840.

Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent, (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Brendan Galdieri appeals from his conviction for violating N.J.S.A. 2C:40-26(b) by driving during a second or subsequent license suspension for driving while intoxicated (DWI). We affirm.

On June 28, 2013, defendant pled guilty to one count of violating N.J.S.A. 2C:40-26(b). That provision reads in pertinent part

It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of [N.J.S.A.] 39:3-40, if the actor's license was suspended or revoked for a second or subsequent violation of [N.J.S.A.] 39:4-50. . . . A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.

[N.J.S.A. 2C:40-26(b).]

At the plea hearing, defendant admitted under oath that he had previously pled guilty on October 2, 2012 to DWI in New Jersey, N.J.S.A. 39:4-50, and that on that date, the court suspended his driving privileges for three months. He further admitted that his driver's license was still suspended when he was arrested twelve days later, on October 14, 2012, for driving while his license was suspended. Defendant further admitted that at the time he was arrested for driving while suspended, he also had at least one prior DWI conviction in the State of New York.1 He did not contest that N.J.S.A. 2C:40-26(b) applied to his situation, nor did he reserve the right to appeal on that legal issue. The trial court sentenced defendant to 180 days in jail and other applicable fines and penalties. See State v. French, 437 N.J. Super. 333, 336 (App. Div. 2014) (discussing the purpose of N.J.S.A. 2C:40-26(b) to increase the penalty for driving on a suspended license imposed for a second or subsequent DWI conviction), certif. denied, ___ N.J. ___ (2015).

On this appeal, defendant concedes that he was "previously convicted" of DWI in New York. However, he argues that his 2012 New Jersey conviction was for a "first" offense, because he only received a three-month suspension, which is the penalty for a first DWI conviction.2 See N.J.S.A. 39:4-50(a)(1)(i). He contends that because his license was only suspended for ninety days, as though his October 2012 offense was a first DWI offense, he cannot thereafter be charged under N.J.S.A. 2C:40-26(b) for driving while serving that suspension. Implicitly, he also appears to be arguing that out-of-state DWI convictions cannot be counted in determining the number of prior DWI convictions under that statute. Both arguments are patently without merit.

The DWI statute, N.J.S.A. 39:4-50(a)(3), provides that in determining whether a defendant is a repeat offender, out-of-state DWI convictions count as though they were New Jersey convictions. See also N.J.S.A. 39:5D-4(a)(2). Further, State v. Zeikel, 423 N.J. Super. 34, 44 (App. Div. 2011), and State v. Nicolai, 287 N.J. Super. 528, 530-31 (App. Div. 1996), clearly preclude defendant from getting the benefit of the prior sentencing mistake.

A defendant has no "vested right" in a prior sentence. Thus, defendant had no right to expect that future DWI sentencing courts would be bound by a decision of a prior court of equal authority. The statute, not a prior court ruling, controls the appropriate sentence.

[Zeikel, supra, 423 N.J. Super. at 44 (citations omitted).]

Defendant's appellate arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 The pre-sentence report indicates that defendant had two prior DWI convictions in New York. The trial judge so noted at the sentencing, and defendant did not dispute that he had two prior New York convictions for DWI.

2 Apparently, defendant received the more lenient sentence because the sentencing judge was not aware of defendant's prior New York DWI convictions.