Annotate this Case

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-5726-17T4


                                           APPROVED FOR PUBLICATION
v.                                                 September 3, 2020

JEREMIE FABER,                                   APPELLATE DIVISION


           Submitted October 3, 2019 – Decided September 3, 2020

           Before Judges Fuentes, Mayer and Enright.

           On appeal from the Superior Court of New Jersey, Law
           Division, Monmouth County, Municipal Appeal No.

           Reisig Criminal Defense & DWI Law, LLC, attorneys
           for appellant (Matthew W. Reisig and Luke C.
           Kurzawa, on the brief).

           Christopher J. Gramiccioni, Monmouth County
           Prosecutor, attorney for respondent (Monica do
           Outeiro, Assistant Prosecutor, of counsel and on the
           brief; Kenneth R. Paulus, Jr., Legal Assistant, on the

     The opinion of the court was delivered by

      Defendant Jeremie Faber was tried and convicted in the Borough of Union

Beach Municipal Court for driving while under the influence of alcohol (DWI),

 N.J.S.A. 39:4-50(a); reckless driving,  N.J.S.A. 39:4-96; and failure to maintain

lanes,  N.J.S.A. 39:4-88(b). The municipal court judge merged the failure to

maintain lanes with the reckless driving conviction and sentenced defendant to

pay fines and mandatory penalties amounting to $689 and suspended his driving

privileges for nine months. 1 Defendant appealed the municipal court conviction

and sentence to the Superior Court, Law Division in the Monmouth County

Vicinage pursuant to Rule 3:23-8.

      The Law Division judge conducted a de novo review of the record

developed before the municipal court and again found defendant guilty of these

three Title 39 offenses and imposed the same fines and mandatory penalties.

However, the Law Division judge found that in determining the length of

defendant's driver's license suspension for DWI, the municipal court judge

erroneously considered defendant's lack of credibility in his trial testimony as

an aggravating factor for sentencing purposes. In this light, the judge reduced

the length of defendant's driver's license suspension from nine months to seven

  As a first time DWI offender, the municipal court had the discretion to suspend
defendant's driver's license "for a period of not less than seven months nor more
than one year."  N.J.S.A. 39:4-50(a)(1)(ii).
months. The judge also granted defendant's application to stay the execution of

the sentence, including the suspension of his driving privileges, pending the

outcome of his appeal to this court. The State did not object.

      In this appeal, defendant argues the Law Division should have vacated his

conviction and remanded the matter for a new trial because the municipal court

judge's misconduct and bias against defendant tainted the fairness of the

proceedings. We reject this argument and affirm. We nevertheless note the Law

Division's failure to include certain mandatory provisions in defendant's

sentence, rendering it an illegal sentence. We thus remand to the Law Division

to resentence defendant in accordance with  N.J.S.A. 39:4-50(a)(1)(ii) and

 N.J.S.A. 39:4-50.17. We also note the Law Division's failure to follow the

standards established by our Supreme Court in State v. Robertson,  228 N.J. 138

(2017) when it granted defendant's application to stay the execution of the

sentence pending the outcome of this appeal.

      The following facts inform our legal analysis. At approximately 12:50

a.m. on December 12, 2016, Borough of Union Beach Police Officer Matthew

Gajewski was on patrol on Highway 36 south in a marked police vehicle when

he noticed a car "weaving in and out" of the marked traffic lanes. Gajewski

decided to stop the car and issue a summons for failure to maintain lane in

violation of  N.J.S.A. 39:4-88(b)2 and to determine whether the driver was under

the influence of an intoxicating substance in violation of  N.J.S.A. 39:4-50.

Defendant, who was the driver of this car, immediately complied with the police

officer's instructions and stopped the vehicle by the side of the road. A woman

was seated in the front passenger seat of defendant's car.

       Gajewski approached the car and asked defendant to produce his driving

credentials. As defendant attempted to comply, Gajewski noticed that defendant

"slurred his words a little bit" and "his eyes were watery and bloodshot."

Gajewski also detected an odor of alcohol emanating from inside defendant's

car. The record shows Gajewski did not remember some of the details of his

interactions with defendant and needed to review his police report to refresh his

 2 N.J.S.A. 39:4-88(b) provides:

             When a roadway has been divided into clearly marked
             lanes for traffic, drivers of vehicles shall obey the
             following regulations:


                   A vehicle shall be driven as nearly as
                   practicable entirely within a single lane and
                   shall not be moved from that lane until the
                   driver has first ascertained that the
                   movement can be made with safety.

recollection.3 Defense counsel argued the municipal court judge erred when he

allowed the officer to rely on the police report in the course of the trial. The

Law Division judge found this approach was proper and permissible under

N.J.R.E. 612.

      Based on his initial observations, Gajewski asked defendant to perform a

series of field sobriety tests. As described by the Law Division judge:

            He sees bloodshot and watery eyes. These are standard
            things that are in a DWI case. And based on that, and
            then we get to the tests, the one leg stand test, which I
            believe he said that Mr. Faber did okay, but he didn’t
            count far enough down as far as how long he was
            supposed to hold his leg. And then there was the heel to
            toe which he did not do well. And based on that, he was
            placed under arrest for [suspicion of] being under the

      Based on defendant's inability to properly perform these tests, Gajewski

found he had probable cause to charge defendant with DWI, reckless driving,

and failure to maintain a lane. Gajewski transported defendant to the Union

Beach Police Station where he administered defendant two Alcotests that

indicated a blood alcohol content (BAC) reading of 0.13%. In the course of the

trial, defense counsel apprised the municipal court judge that "there is a

  Gajewski testified before the municipal court on August 23, 2017, more than
nine months after his encounter with defendant.
specifically [sic] a motion regarding the Alcotest." The Law Division judge

held the municipal court correctly rejected this attack on the BAC reading as

baseless because it was "without the benefit of an expert report or testimony."

      After finding defendant guilty of the three Title 39 offenses, the Law

Division judge found the sentence imposed by the municipal court was not

supported by a valid aggravating factor. Specifically, the Law Division judge

found the municipal court judge repeatedly mentioned defendant's credibility at

trial as a basis to support a lengthier period of suspension of defendant's driving

privileges. The Law Division judge found particularly problematic: (1) the

antagonism reflected in the record between defense counsel and the municipal

court judge; and (2) the municipal court judge's comments to defendant, while

he was testifying in his own defense at trial, urging him to discuss the possibility

of a plea agreement with the prosecutor.

            The way this trial went and there was antagonism
            clearly between [the municipal court judge] and
            [defense counsel]. And then the comments that were
            made to Mr. Faber, he’s a defendant, but he should be
            treated respectfully. And not sort of tried to be pushed
            into working the case out, saying it doesn't look good.
            You can't say that during the middle of a motion or a

      Based on these improper considerations, the Law Division reduced the

length of defendant's suspension of driving privileges from nine months to seven

months but left undisturbed the remaining aspects of the sentence.

      In this appeal, defendant raises the following argument.

        Point I

            CLEARLY    DEMONSTRATED      BY      THE

      We reject this argument, affirm the Law Division's judgment finding

defendant guilty of all the Title 39 offenses, and remand for the court to amend

the sentence it imposed for the DWI conviction in accordance with statutory


      As a threshold matter, we emphasize that this court reviews the decision

of the Law Division, not the municipal court. State v. Robertson,  438 N.J.

Super. 47, 64 (App. Div. 2014). Our standard of review is well-settled: "[t]he

aim of the review at the outset is rather to determine whether the findings made

could reasonably have been reached on sufficient credible evidence present in

the record." State v. Johnson,  42 N.J. 146, 162 (1964).

      Here, the Law Division judge conducted a thorough de novo review of the

record developed before the municipal court and made factual findings in

support of defendant's culpability. These findings by the Law Division were not

tainted by the questionable conduct exhibited by the municipal court judge. In

fact, the Law Division criticized the way the municipal court judge behaved in

his interactions with defendant.    The de novo assessment of the eviden ce

conducted by the Law Division judge, together with his decision to reduce by

two months the period of suspension of defendant's driver's license cured any

prejudice caused by the conduct of the municipal court judge. Moreover, the

record relied on by the Law Division contains sufficient evidence to support the

court's decision finding defendant guilty of DWI, reckless driving, and failure

to maintain his lane beyond a reasonable doubt.

      Although not raised by the parties, we cannot conclude our analysis

without addressing two specific issues related to defendant's sentence. In an

order dated June 28, 2018, the Law Division judge provided a detailed

description of the sentence he imposed on defendant as a first time DWI offender

under  N.J.S.A. 39:4-50(a). Missing from this detailed recitation of statutorily

mandated sanctions, however, is any reference to either the Intoxicated Driver

Resource Center (IDRC) or the ignition interlock device.

        With respect to the IDRC,  N.J.S.A. 39:4-50(a)(ii) provides, in relevant


             [I]f the person's blood alcohol concentration is 0.10%
             or higher, . . . [he or she shall serve] a period of
             detainment of not less than 12 hours nor more than 48
             hours spent during two consecutive days of not less
             than six hours each day and served as prescribed by the
             program requirements of the Intoxicated Driver
             Resource Centers established under subsection (f) of
             this section[.]

Furthermore, with respect to the ignition interlock device,  N.J.S.A. 39:4-

50(a)(1)(ii) also provides, in relevant part:

             [I]n the case of a person whose blood alcohol
             concentration is 0.10% or higher but less than 0.15%,
             the person shall forfeit the right to operate a motor
             vehicle over the highways of this State until the person
             installs an ignition interlock device in one motor
             vehicle the person owns, leases, or principally operates,
             whichever the person most often operates, for the
             purpose of complying with the provisions of [N.J.S.A.
             39:4-50-16 et al.][.] 4

 4 See also N.J.S.A. 39:4-50.17a(1)(b), which provides:

             In sentencing a first offender under subparagraph (ii) of
             paragraph (1) of subsection (a) of [ N.J.S.A.] 39:4-50
             whose blood alcohol concentration was 0.10% or
             higher, but less than 0.15%, the court shall order, in

      Both the municipal court and the Law Division failed to adhere to this

critically important part of the Legislature's mandatory sentencing scheme for

DWI offenders. The Supreme Court has proclaimed that "[t]he primary purpose

behind New Jersey's drunk-driving statutes is to curb the senseless havoc and

destruction caused by intoxicated drivers." State v. Tischio,  107 N.J. 504, 512

(1987). Mandatory participation in the IDRC and the requirement to install

ignition interlock devices in the primary vehicles used by those convicted of

DWI with a BAC reading between 0.10% and 0.15% are measures intended to

deter those who elect to drive while intoxicated.

      A sentence imposed in violation of the applicable law is an illegal

sentence. State v. Hyland,  238 N.J. 135, 148 (2019); State v. Acevedo,  205 N.J.
 40, 45 (2011). The State has a duty to raise this error before the sentencing

court. Furthermore, if the State's measures to address these errors are rejected

by the trial court, the State has the right to file a direct appeal to this court. State

v. Ciancaglini,  204 N.J. 597, 605 (2011); see also R. 3:21-10(b)(5). A court may

             addition to any other penalty imposed, the installation
             of an ignition interlock device in one motor vehicle
             owned, leased, or principally operated by the offender,
             whichever the offender most often operates, which shall
             remain installed for not less than seven months or more
             than one year.
also correct an illegal sentence on its own motion. State v. Schubert,  212 N.J.
 295, 309 (2012). Here, because the State did not act, we must take the initiative.

      Unfortunately, we are not finished. We are compelled to address yet

another oversight by the Law Division in adhering to the standards established

by our Supreme Court. The Law Division judge decided to stay the execution

of the sentence, including the suspension of defendant's driving privileges,

pending the outcome of this appeal. The judge offered the follow ing reasons in

support of this decision: "the record of some of the things that happened on the

[m]unicipal [c]ourt level are a little troubling to me." The Law Division judge

made this decision more than fifteen months after the Supreme Court decided

Robertson,  228 N.J. at 152, in which it unanimously held:

            [i]f a defendant is convicted of DWI by the Law
            Division, Rule 2:9-4 applies. At this stage, the
            defendant has the burden to justify a stay of a driver's
            license suspension pending appeal to the Appellate
            Division. Courts may grant a stay only if the defendant
            demonstrates that (1) "it appears that the case involves
            a substantial question that should be determined" on
            appeal, (2) the safety of any person or the community
            "will not be seriously threatened" if defendant's license
            is not suspended, and (3) "there is no significant risk of
            defendant's flight." R. 2:9-4.

      The Law Division failed to follow the Supreme Court's clear mandate

when it granted defendant's application for a stay of sentence pending appeal.

Furthermore, the Monmouth County Prosecutor's Office did not object under

Robertson at the time the Law Division granted defendant's motion, did not

move before this court to remand the matter for the Law Division to apply the

standards codified in Rule 2:9-4, nor raise the issue in its brief in this appeal.

We thus raise this issue sua sponte "pursuant to our didactic role as an

intermediate appellate court." Estate of Yearby v. Middlesex Cty.,  453 N.J.

Super. 388, 401 n.6 (App. Div. 2018). We expect the Law Division will follow

the Supreme Court's mandate in Robertson and apply the standards codified in

Rule 2:9-4 when deciding a future application for a stay of execution of a

sentence in a DWI case.

      We thus affirm the Law Division's order finding defendant guilty of DWI

and reckless driving and remand for the court to resentence defendant within

thirty days of the date of this opinion in accordance with the mandatory

provisions in  N.J.S.A. 39:4-50(a)(1)(ii) and  N.J.S.A. 39:4-50.17.

      Affirmed in part and remanded in part. We do not retain jurisdiction.


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