STATE OF NEW JERSEY v. STEPHEN G. MCLAUGHLIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1846-08T41846-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN G. MCLAUGHLIN,

Defendant-Appellant.

_________________________

 

Argued October 27, 2009 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 51-05.

Bartholomew Baffuto argued the cause for appellant.

Thomas Cannavo, Senior Assistant County Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel Marzarella, Assistant County Prosecutor, of counsel; Mr. Cannavo, on the brief).

PER CURIAM

Defendant appeals from the October 21, 2008 order of the Law Division denying his motion for a jury trial on his third charge for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50. We affirm.

Following a trial in Brick Township Municipal Court on September 21, 2005, defendant was convicted of DWI, reckless driving, N.J.S.A. 39:4-96, and speeding, N.J.S.A. 39:4-98. Upon a de novo appeal to the Law Division, defendant was again found guilty of all three offenses and was sentenced to ninety days in jail and ninety days in in-patient treatment on the DWI offense, and a concurrent sentence of thirty days for reckless driving. Defendant's driver's license was suspended for a ten-year period and he was assessed the appropriate fines and costs. The Law Division judge suspended the sentence and all penalties except license revocation pending defendant's appeal to this court.

We affirmed defendant's convictions in an unreported decision on June 13, 2007. State v. McLaughlin, No. A-4007-05 (App. Div. June 13, 2007).

Defendant thereupon applied to the Law Division for a jury trial on his DWI offense. The trial judge ordered the filing of a formal motion and briefs and continued the suspension of sentencing. Following oral argument on October 10, 2008, the judge rendered a decision from the bench on October 17, 2008, denying defendant's motion and ordering the immediate execution of the sentence previously imposed.

In his decision, the judge analyzed both sides' arguments in great detail and concluded:

Upon careful review of the legal principles, case law, submissions and contentions of both the State and defendant, this [c]ourt rejects the defendant's motion for exercise of their [sic] rights to indictment by a Grand Jury and trial by jury.

Here the defendant indicated he faces serious quasi-criminal and civil consequences as a direct result of the [m]unicipal [court] proceedings. The fact remains that defendant faces these stated consequences as a direct result of driving while under the influence for a third time and charged accordingly. The [c]ourt agrees with the State upon their contention that it has indeed been established that a defendant charged with DWI is not entitled to a criminal . . . trial by jury . . . .

Additionally, drunk driving is not a criminal offense within the meaning of the New Jersey Constitution . . . . The [l]egislative intent has consistently . . . not classified DWI as a criminal matter . . . .

. . . .

Therefore, the defendant's sentence is in accordance with the aforementioned statutory provisions and does not violate defendant's Constitutional right to indictment by a Grand Jury and/or to a trial by jury.

Notwithstanding that defendant has completed serving both phases of his sentence, he contends that this appeal is not moot. Defendant asserts that his sentence has not been completely served because he "faces at least two days of imprisonment in an intoxicated driver resource center in addition to the one hundred eighty days of imprisonment [sic] already served, [and] he has years left to serve on the suspension of his driving privile[ge], and his fines would be refunded on acquittal." We note, however, that none of these consequences triggers the right to a jury trial.

Even assuming that defendant's appeal is not moot, we nonetheless deem his contentions to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We affirm substantially for the reasons set forth by Judge Wendel E. Daniels in his oral opinion rendered from the bench on October 17, 2008. We add only the following brief comments.

In State v. Hamm, 121 N.J. 109 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991), the Supreme Court expressly rejected the argument defendant presses here. The Court held "that the statutory penalties for DWI are not so severe as to clearly reflect a legislative determination of a constitutionally 'serious' offense requiring jury trial." Id. at 111.

Defendant has failed to present us with any compelling argument as to why State v. Hamm is not dispositive of his claim. The mere use of words such as "detainment," "convicted" and "imprisonment" in N.J.S.A. 39:4-50 does not elevate DWI to a "crime" within the intendment of N.J.S.A. 2C:1-4(a), as defendant contends. In short, "New Jersey has never recognized a right to trial by jury for the motor-vehicle offense of DWI. It is simply not a crime under New Jersey law." Hamm, supra, 121 N.J. at 112.

 
Affirmed.

N.J.S.A. 2C:1-4(a) provides, in pertinent part: "An offense defined by this code or by any other statute of this State, for which a sentence of imprisonment in excess of 6 months is authorized, constitutes a crime within the meaning of the Constitution of this State."

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A-1846-08T4

April 28, 2010