STATE OF NEW JERSEY v. MICHAEL DELL'PRISCOLI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6507-05T26507-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL DELL'PRISCOLI,

Defendant-Appellant.

 

Argued June 6, 2007 - Decided June 25, 2007

 
Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, A-09-06.

Mario J. D'Alfonso argued the cause for appellant (D'Alfonso & Camacho, attorneys; Mr. D'Alfonso, on the brief).

Staci L. Scheetz, Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Ms. Scheetz, of counsel and on the brief).

PER CURIAM

Following a third conviction for driving while intoxicated (DWI), defendant appeals from Judge Marshall's denial of his Laurick application, in which defendant had requested that the court not use his first drunk driving conviction, which occurred in 1988 and was uncounseled, for purposes of sentencing, and instead sentence him as a second offender for his third DWI conviction. In a written decision dated July 11, 2006, the Law Division judge found that defendant proved that in 1988 he was not advised of his right to counsel and did not have counsel; but, the judge denied defendant's application because defendant was unable to demonstrate that he was indigent in 1988 and qualified for a court-appointed attorney, and, further, because even if defendant had counsel at the time he entered his plea, the result of the proceeding would not have been different. On appeal, defendant raises the following legal arguments:

I. The trial court erred in convicting Mr. Dellpriscoli as a third-time offender for Driving While Intoxicated because his first conviction was both uncounseled and uninformed of the right to counsel, in violation of the New Jersey Supreme Court's decision in State v. Hrycak.

A. The trial court erred in convicting Mr. Dellpriscoli because he meets the burden required under the three-part test elucidated in State v. Hrycak.

B. Given the gravity of the offense, and the potential loss of liberty at stake, coupled with the lack of records available, Mr. Dellpriscoli should not be convicted as a third-time offender because of the fundamentally unjust burden the State is attempting to impose on him.

We have carefully considered defendant's contentions in light of the facts and applicable law. We conclude that his arguments are without merit and affirm.

On January 16, 1988, defendant was charged in East Greenwich Township with DWI, in violation of N.J.S.A. 39:4-50. He pleaded guilty to the charge on March 21, 1988, and the court imposed a penalty of costs and fines. Transcripts of the hearing are no longer available because the Township has destroyed them pursuant to its policy of disposing of records after fifteen years.

On April 26, 2001, defendant was charged in Cinnaminson with his second DWI violation. On June 21, 2001, defendant pleaded guilty to that charge.

On July 8, 2005, defendant was charged in Evesham Township with reckless driving, failure to keep to the right, failure to have a driver's license and registration in his possession, and a third DWI. On December 8, 2005, he pleaded guilty to the DWI charge. The judge withheld sentence pending resolution of defendant's Laurick motion.

Defendant filed his Laurick motion in Greenwich Township Municipal Court on January 17, 2006. The court denied the motion. Defendant appealed to the Law Division. The Law Division judge considered defendant's motion on its merits, despite the expiration of the five-year time limit to file the application, R. 7:10-2(b)(2), because defendant sufficiently demonstrated that the delay in filing was due to "excusable neglect".

Defendant alleged that he was unable to afford an attorney when charged with DWI in 1988, as he had been out of work after injuring his leg the previous year. He certified to the following:

Before court began, I met with the police officer who had written me the ticket, and was outside talking to him regarding that I plea to the DWI and the officer indicated to me that if I did not plea to the DWI that he would go after the balance of the tickets that had been given to me which included reckless driving, speeding and a blue light violation, which was given to me because I was driving my volunteer firefighter vehicle without the proper permits.

. . . I do not recall the Judge ever reading my right to a public defender, as I was not in the courtroom at the beginning of court since I was talking to the police officer. As I recall the facts of the case, the officer and I discussed the fact that it was a borderline reading, as I recall a .10, .11, and as such, if I had the opportunity to speak to an attorney, I am sure that the attorney would have at least had the opportunity to use an extrapolation defense wherein I might have been found not guilty. Due to the fact that I was in a severe motorcycle accident and was still being treated and did not have the money to pursue my own attorney, I listened to the police officer, who I feel wanted me to plead guilty because it was a borderline reading and I went ahead and plead and received the minimum fines. Further . . . I do not recall ever being told by the court what the violations of second and subsequent offenses of DWI were back then, and I believe as such that with the advi[c]e of a private attorney or public defend[er], the results would have [been] quite a bit different.

In addressing defendant's application, the Law Division judge discussed both Laurick, supra, 120 N.J. 1, and State v. Hrycak, 184 N.J. 351, 363 (2005). The court reviewed the three criteria a defendant must prove to establish that his or her prior uncounseled DWI conviction should not be used to enhance the sentence imposed on a subsequent DWI conviction. The judge noted that the first step requires a defendant to prove "in a second or subsequent DWI proceeding that he or she did not receive notice of the right to counsel in the prior case." Hrycak, supra, 184 N.J. at 363. The judge was satisfied that the court did not advise defendant that he had a right to counsel, and thus, that the first step was met.

As to the second step, Judge Marshall found that defendant failed to prove that he was indigent and "qualified for a Court appointed attorney." The judge reasoned that defendant failed to produce income tax returns or other information "to support his bare certification as to his income."

Regarding the final inquiry, the judge determined that defendant failed to demonstrate that his lack of counsel "had an impact on his conviction or worked a miscarriage of justice." Because defendant offered no evidence to corroborate his certification, the court was not persuaded by defendant's claim that his blood alcohol level reading was "borderline" at .10 or .11, thereby affording him the benefit of the "extrapolation" defense. For example, defendant did not submit police reports or an expert's report that would support his claims about his "borderline" reading or the availability of an "extrapolation" defense.

Defendant is not seeking to reverse his conviction arising out of his 1988 guilty plea; he is asking the court to not consider that conviction for purposes of sentencing for his 2005 conviction. The appeal to this court is from Judge Marshall's decision in the Law Division denying defendant's Laurick motion. See State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (we review not the municipal court's decision, but the Law Division's de novo findings). We conclude that the record supports the judge's decision that defendant did not submit sufficient evidence to establish either that he was indigent at the time he entered his guilty plea in 1988, or that the absence of counsel had an impact on his conviction or otherwise "worked a miscarriage of justice."

Because a defendant faces a "'consequence of magnitude'" when charged with a DWI offense, he or she is entitled to counsel. Hrycak, 184 N.J. at 362 (quoting Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971)). Nevertheless, an uncounseled DWI conviction does not, in itself, preclude enhancement of the jail component of a sentence imposed on a subsequent conviction. To preclude such an enhancement, "[a] defendant is faced with a three-step undertaking." Id. at 363. First, the defendant has the burden to prove in the subsequent proceeding that "he or she did not receive notice of the right to counsel in the prior case." Then, the defendant must meet the two-tiered test established in Laurick, supra, 120 N.J. at 11. In Laurick, the Court stated:

A defendant in a second or subsequent DWI proceeding should have the right to establish that such notice was not given in his or her earlier case, and that if defendant is indigent, the DWI conviction was a product of an absence of notice of the right to assignment of counsel and non-assignment of such counsel without waiver. A non-indigent defendant should have the right to establish such lack of notice as well as the absence of knowledge of the right to be represented by counsel of one's choosing and to prove that the absence of such counsel had an impact on the guilt or innocence of the accused or otherwise "wrought a miscarriage of justice for the individual defendant."

[Ibid. (quoting State v. Cerbo, 78 N.J. 595, 607 (1979).]

Here, to meet his burden, defendant claims that had he obtained the advice of counsel, or had he been advised by the court of his right to counsel, he would not have pleaded guilty and would have raised an extrapolation defense. The Law Division judge found that his proofs, which were limited to his affidavit, were insufficient to meet his burden. The record supports those determinations.

Defendant certified that he was indigent at the time of his first DWI. He stated: "[In 1988], I made less than $9,000.00 . . . than which was made in the second half of 1988, after they removed my brace and I could return to another job. . . . As such, on March of 1988, I indeed could not have afforded my own attorney." The judge found that defendant failed to prove that he was indigent and "qualified for a Court appointed attorney" because he did not produce income tax returns or other information "to support his bare certification as to his income." We are not convinced that the court erred. Defendant bears the burden of proof under these circumstances. See State v. Preciose, 129 N.J. 451, 459 (1992) (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). He could have produced additional evidence to establish that he was, in fact, indigent at the time he entered his guilty plea in 1988. His unsupported statement is insufficient to meet his burden.

Nevertheless, regardless of whether defendant was indigent, we agree with the trial judge that the record simply does not support defendant's claim that the absence of counsel had an impact on his conviction or worked a miscarriage of justice. Defendant argues that because his blood alcohol readings were borderline at .10 or .11, affording him the benefit of an extrapolation defense would have resulted in an acquittal. That argument is rank speculation. It is defendant's burden to prove that the absence of counsel worked a miscarriage of justice. He has not done so.

While the passage of time has obviously affected defendant's ability to carry his burdens, the delay in bringing the application, while excusable, is attributable to defendant, not the State. And, while the records of his first conviction are no longer available, East Greenwich Township complied with the appropriate court rule requiring preservation of the tape recording proceedings for fifteen years. See Rule 7:8-8. It was defendant's own delay that has impaired his ability to prove his case.

Defendant's unsupported affidavit is the only "evidence" that having counsel would have made a difference. He has not submitted a report from an expert, nor has he obtained police reports in support of his argument. Defendant simply has not met his burden of proof.

 
Affirmed.

State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990).

While the State argues that defendant's application is time-barred, we assume, without deciding, that it was not time-barred, and address defendant's application on its merits.

(continued)

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A-6507-05T2

June 25, 2007