INTEREST OF R.R.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1963-05T41963-05T4

DOCKET NO. A-3278-05T4

STATE OF NEW JERSEY IN THE

INTEREST OF S.A.J., JR., A

JUVENILE

___________________________

STATE OF NEW JERSEY IN THE

INTEREST OF R.R., A

JUVENILE

___________________________

 

Argued September 20, 2006 - Decided

Before Judges Stern, Collester and Baxter.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Warren County,

FJ-21-166-06 and FJ-21-621-05.

Tara J. Kirkendall, Assistant Prosecutor, argued

the cause for appellant State of New Jersey

(Thomas S. Ferguson, Warren County Prosecutor, attorney; Ms. Kirkendall, of counsel and on the brief).

Jodi L. Ferguson, Assistant Deputy Public

Defender, argued the cause for respondent S.A.J.

(Yvonne Smith Segars, Public Defender, attorney;

Ms. Ferguson, of counsel and on the brief).

George J. Benson argued the cause for respondent

R.R.

PER CURIAM

These consolidated appeals raise the issue of whether deferred disposition of juvenile proceedings under N.J.S.A. 2A:4A-43 of the juvenile code of a charge of N.J.S.A. 2C:35-10(a)(4), possession of marijuana under fifty grams, merges with N.J.S.A. 39:3-47(a), possession of CDS in a motor vehicle, and obviates the N.J.S.A. 39-49.1 mandatory forfeiture under N.J.S.A. 39:4-49.1 of the right to operate an automobile for two years.

The State appeals from a "deferred disposition" with conditions following the juvenile's plea of guilty to possession of under fifty grams of marijuana and possession of CDS in a motor vehicle without imposition of the two-year forfeiture. The parties agreed that the disposition would be stayed for forty-five days to permit the State to appeal and that the juvenile could withdraw his guilty plea, with a remand to municipal court for disposition of the charges, if we reversed based on the prosecutor's contention that the two year forfeiture of the juvenile's right to operate a motor vehicle had to be imposed.

In each case the Family Part judge deferred disposition under N.J.S.A. 2A:4A-43(b)(1), finding that the waiver provision may eliminate the suspension of driving license for an offense embodied in N.J.S.A. 2C:35-16. However, the prosecutor contends that the mandatory forfeiture in N.J.S.A. 39:4-49.1 must be imposed.

The State concedes that the Title 2C offense and the Title 39 motor vehicle offense must be resolved together in Superior Court to avoid a violation of the juvenile's protection against double jeopardy and that the Title 2C and 39 offenses "must merge." However, the State argues that the mandatory penalties on the motor vehicle ticket will survive merger and "the court does not have any discretion regarding the issue of license suspension on the motor vehicle offense." The State does not oppose the deferred disposition including that relating to the forfeiture of driving privileges on the Title 2C offense because N.J.S.A. 2A:4A-43(b)(1) specifically permits it. The statute specifically authorizes the adjournment of formal entry of a disposition involving a juvenile for a period not to exceed twelve months, and further provides that if the juvenile "makes a satisfactory adjustment" the complaint shall be dismissed, "provided that if the court adjourns formal entry of disposition of delinquency for a violation of an offense defined in chapter 35 or 36 of Title 2C of the New Jersey statutes, the court shall assess the mandatory penalty set forth in N.J.S.A. 2C:35-15 but may waive imposition of the penalty set forth in N.J.S.A. 2C:35-16 for juveniles adjudicated delinquent." N.J.S.A. 2C:35-16 requires forfeiture of driving privileges of chapter 30 for a violation of chapter 35. The State contends that because N.J.S.A. 2A:4A-43(b)(1) only relates to waiver of the penalty for violation of a chapter 35 offense, it does not apply to a violation of N.J.S.A. 39:4-49.1.

We recognize that the disposition of a violation of chapter 4 of Title 39 does not render a juvenile a "delinquent," as defined in N.J.S.A. 2A:4A-23. See N.J.S.A. 2A:4A-23(c). But because the two offenses merge, we do not believe that the mandatory suspension embodied in N.J.S.A. 39:4-49.1 would survive. See, e.g., State in the Interest of N.L., 345 N.J. Super. 25 (App. Div. 2001) (no need to impose penalties under N.J.S.A. 2C:33-3.1 on a disposition under N.J.S.A. 2A:4A-43(b)(1)); State in the Interest of V.M., 279 N.J. Super. 535 (App. Div. 1995) (penalty mandated under N.J.S.A. 2C:20-2.1 not required). While N.L. and V.M. are distinguishable because they both involve acts of delinquency and not a Title 39 violation, we can find no legislative intent to suggest that the mandatory license suspension is applicable in these circumstances.

While N.J.S.A. 2A:4A-43(b)(1) does not permit waiver of the suspension required by N.J.S.A. 2C:35-16 in cases other than those involving an offense defined in chapter 35 and chapter 36 of Title 2C, we find no indication of any legislative intent to require imposition of the suspension when the motor vehicle violation merges into a Title 2C offense.

Where the Legislature has indicated an intent for a mandatory minimum to survive merger, that intent has been made clear. For example, in State v. Gonzalez, 123 N.J. 462 (1991), the Supreme Court held that third and fourth degree violations of N.J.S.A. 2C:35-5 merged into a school zone offense in violation of N.J.S.A. 2C:35-7, but concluded that the mandatory minimum for the school zone violation had to be imposed. Similarly, in State v. Dillihay, 127 N.J. 42 (1992) the Supreme Court held the conviction for school zone offenses merged into related first and second degree violations of chapter 35 of the code, but that the mandatory minimum required by N.J.S.A. 2C:35-7 had to survive. In both of those cases, the Supreme Court concluded that the holding was required by virtue of the express legislative provision embodied in N.J.S.A. 2C:35-7 which "exclud[ed] the merger bar from the restrictions of N.J.S.A. 2C:1-8." Dillihay, supra, 127 N.J. at 52. See also State v. Connell, 208 N.J.S. 688 (App. Div. 1986) (holding that the more serious Graves Act offense survives the mandatory minimum of the Graves Act had to be imposed even though a greater offense was merged with a lesser).

Accordingly, we affirm the judgment of the Family Part in regards to S.A.J. and R.R.

 
Affirmed.

The issue before us would be the same if the guilty plea was to a chapter 35 crime, as opposed to a disorderly persons offense. In such situations the Title 39 motor vehicle violation would merge into the crime.

(continued)

(continued)

6

A-1963-05T4

RECORD IMPOUNDED

August 9, 2007