STATE OF NEW JERSEY v. JENNIFER BISCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6229-09T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JENNIFER BISCO,

Defendant-Respondent.

________________________________________________________________

July 1, 2011

Submitted March 8, 2011 - Decided

Before Judges Carchman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-078.

Robert A. Bianchi, Morris County Prosecutor, attorney for appellant (Matheu D. Nunn, Assistant Prosecutor, on the brief).

Nuzzi & Mason, L.L.C., attorneys for respondent (Brian D. Kenney, on the brief).

PER CURIAM

In this appeal, we address the issue of whether a defendant sentenced to the county jail for a violation of N.J.S.A. 39:3-40(f)(2), may serve that sentence in the Sheriff's Labor Assistance Program (SLAP), N.J.S.A. 2B:19-5. Consistent with the principles enunciated in our decision in State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006) as well as the municipal court opinion in State v. White, 413 N.J. Super. 301 (Mun. Ct. 2010), we conclude that a portion of the sentence imposed pursuant to the statute must be served in the county jail and may not be served in the SLAP program. Accordingly, we reverse the decision of the Law Division, in part, and remand for resentencing.

We do not dwell on the details of the offense that gave rise to the present appeal except to note that defendant Jennifer Bisco, now twenty-three, in what is portrayed as a suicide attempt, was involved in a motor vehicle accident that resulted in serious and profound injuries to an innocent third-party, the driver of another vehicle. At the time of the incident, defendant's license was suspended because she had been found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50.1

As a result of a plea agreement, defendant entered a plea to a violation of N.J.S.A. 39:3-40. The focus of discussion at sentencing was about defendant's medical and psychiatric history. She is described in the record as having been the subject of a difficult childhood. She suffers from severe depression and other mental health issues and has a history of suicide attempts and multiple hospitalizations to address her substance addiction and related issues. Since this incident, she has been hospitalized, and at the time of the appeal was participating in an in-patient rehabilitation program. The State neither contests nor challenges the bona fides of defendant's disabilities. In addition to the mandated license suspension, fines and penalties, the municipal judge sentenced defendant, pursuant to N.J.S.A. 39:3-40(e), to a 45-day jail sentence, and to an additional 10-day jail sentence pursuant to N.J.S.A. 39:3-40(f) (driving while suspended as a result of a violation of N.J.S.A. 39:4-50).

At the trial de novo, the Law Division judge concluded that the combined sentences totaling fifty-five days would be served in the SLAP program as an alternative to incarceration. The State appealed, and we stayed the imposition of the sentence as it related to defendant's involvement in the SLAP program.

In his supplemental opinion, the judge relied on the original legislative formulation of N.J.S.A. 39:4-50(a)(3), which purported to criminalize third offense DWI charges. Ultimately, the statute was not enacted in that form, but it did mandate a 180-day jail sentence in a county jail or workhouse.

In addition, the judge focused on the use of SLAP as an incarceration alternative in other instances of a violation of N.J.S.A. 39:3-40.

In Luthe, we held that a SLAP sentence was not appropriate for a defendant sentenced as a DWI third offender pursuant to N.J.S.A. 39:4-50(a)(3). We found that a labor-assistance program, such as SLAP, is not "custodial." Id. at 515. See also State v. Kotsev, 396 N.J. Super. 389 (App. Div.) (holding that SLAP is not the equivalent of incarceration or a workhouse), certif. denied, 193 N.J. 276 (2007); State v. Grabowski, 388 N.J. Super. 431, 439 (Law Div. 2006) (referring to SLAP as a non-custodial alternative to jail). Indeed, N.J.S.A. 2B:19-5, the enabling legislation for SLAP, indicates that this type of program is an "alternative to direct incarceration"; to that end, "SLAP inmates are not confined at the jail when not performing their labor functions." Grabowski, supra, 388 N.J. Super. at 439.

The statutory construct is similar here. N.J.S.A. 39:3-40 provides in relevant part:

No person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition.

. . . .

Except as provided in subsections i. and j. of this section, a person violating this section shall be subject to the following penalties:

Subsection (e) states:

Upon conviction, the court shall impose a period of imprisonment for not less than 45 days or more than 180 days, if while operating a vehicle in violation of this section a person is involved in an accident resulting in bodily injury to another person;

[N.J.S.A. 39:3-40(e) (emphasis added).]

Subsection (f)(2) provides:

In addition to any penalty imposed under the provisions of subsections a. through e. of this section and paragraph (1) of this subsection, any person violating this section under suspension issued pursuant to R.S.39:4-50, section 2 of P.L. 1981, c. 512 (C.39:4-50.4a) or P.L. 1982, c. 85 (C.39:5-30a et seq.), shall be fined $500, shall have his license to operate a motor vehicle suspended for an additional period of not less than one year or more than two years, and shall be imprisoned in the county jail for not less than 10 days or more than 90 days.

[N.J.S.A. 39:3-40(f)(2) (emphasis added).]

The language found in the two sections of the statute are markedly different. In subsection (e), the sentence refers to "a period of imprisonment for not less than 45 days or more than 180 days," while subsection (f)(2) provides that defendant "shall be imprisoned in the county jail for not less than 10 days." (Emphasis added).

This distinction was the fulcrum of our conclusion in Luthe that the analogous reference found in N.J.S.A. 39:4-50(a)(3), to service of a sentence "in a county jail or workhouse" precluded the alternative of the SLAP program. Our statement in Luthe applies with equal force here. "The language is clear. Confinement, either entirely in jail or partially in jail and partially in an inpatient facility, is required. There is no allowance for noncustodial alternative." Luthe, supra, 383 N.J. Super. at 514.

Although White is a Municipal Court opinion and is not binding on us, its application of Luthe to sentencing under N.J.S.A. 39:3-40(f)(2) is sound, and we concur in its conclusion. As the judge noted: "N.J.S.A. 39:3-40(f)(2) provides no authority for a noncustodial alternative. Its language is clear and unambiguous." White, supra, 413 N.J. Super. at 305.

As in Luthe, where we distinguished between statutes that do not contain language specifying incarceration in the "county jail or workhouse" from mandatory incarceration including that language, compare N.J.S.A. 39:4-50(a)(3) and the same statute before the 2004 amendment with N.J.S.A. 39:3-40(f)(2) and N.J.S.A. 39:3-40(e), we make that same distinction here.

Accordingly, we conclude that the sentence of forty-five days imprisonment mandated by N.J.S.A. 39:3-40(e), may be served by participation in a SLAP program, while the ten-day sentence imposed under N.J.S.A. 39:3-40(f)(2) must be served in jail and not in a SLAP program.

We recognize that defendant's emotional and physical well-being is an issue. However, we are confident that the Morris County Corrections officials and the Sheriff will make appropriate accommodations to insure the health, safety and welfare of defendant during her period of incarceration.

We reverse in part, affirm in part and remand for resentencing consistent with this opinion.

1 The record provides little detail as to the circumstances of that offense.