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August 11, 2016


Submitted October 7, 2015 Decided

Before Judges Fuentes and Kennedy.

On appeal from Superior Court of New Jersey,

Law Division, Cape May County, Indictment No. 13-05-0525.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).


Defendant, Anthony Torella, pleaded guilty to a single count of fourth-degree operating a motor vehicle during a period of license suspension for a second or subsequent conviction for driving while intoxicated (DWI), contrary to N.J.S.A. 2C:40-26b. He was sentenced to 180 days in prison, with an equal period of parole ineligibility. He now appeals.

Defendant argues that his conduct was not covered by the statute as he was arrested after the court-ordered period of license suspension for his DWIs expired, but before his license was restored. The trial court, relying on State v. Zalta, 217 N.J. Super. 209 (App. Div. 1987), denied defendant's motions to dismiss the indictment. The court reasoned that at the time of defendant's arrests, his license was still suspended as he never sought to have it reinstated.

Recently, we decided State v. Perry, 439 N.J. Super. 514 (App. Div.), certif. denied, 222 N.J. 306 (2015). In that case, we distinguished Zalta, holding that N.J.S.A. 2C:40-26b criminalizes the operation of a motor vehicle only during the court-ordered period of suspension, not thereafter. Id. at 519.

Applying Perry's holding to the facts of this case, we reverse the trial court's decision and dismiss defendant's indictment.


In 2001 and 2002, defendant was convicted of three DWI offenses in violation of N.J.S.A. 39:4-50. On each of these occasions, his driver's license was suspended, including the judgment of conviction entered on September 10, 2002. Following the court-ordered period of suspension, defendant never took steps to restore his license.

On October 11 and December 2, 2012, defendant was arrested for driving with a suspended license. In 2013, a grand jury returned two indictments, charging him with fourth-degree operating a motor vehicle during a period of license suspension for a second or subsequent DWI, contrary to N.J.S.A. 2C:40-26b.

Later, defendant filed two motions to dismiss the indictments, which were heard on October 29, 2013. On that date, the trial court denied defendant's motions, finding in relevant part

Here, . . . the defendant is alleging that the prosecutor did not present enough evidence that the defendant was operating a vehicle on a suspended license, since the actual period of license suspension has expired, and that license has not been reinstated because of a failure to pay surcharges.

. . . .

The defendant [] . . . did not comply with all aspects of reinstatement of license suspension, for whatever reason. And accordingly, the license [ was] continuously suspended up until the time of the present offenses. It's the defendant's position that the . . . statute should be interpreted to apply only during the initial period of suspension, and should not be read to continue to apply if the defendant fails to abide by the administrative requirements of reinstatement.

The State counters with the argument, under State v. Zalta, where a court held that a license suspension was not reinstated following the initial period, was yet to be considered a suspended license pursuant to N.J.S.A. 39:3-40. The defendant argues that that particular case is not binding on the case before us since it applies to a . . . Title 39 offense. But this is the only . . . instruction that this Court can follow by

. . . analogy. . . .

The record does not . . . disclose to this Court that . . . defendant attempted to have the license reinstated or, moreover, that [he] satisfied the conditions precedent to this reinstatement. There's no reason to think that the requirements for reinstatement . . . will be inapposite to [this] case. Indeed, it would appear that a policy consideration for someone charged under the indictable statute would support a finding that such requirements are even more important in a situation where defendant has multiple DWI convictions and continues to drive.

So for the reason that the Court finds that there was a prima facie case successfully presented to the grand jury, and that this Court finds that the license [ was] suspended and remained suspended, the Court is denying the applications of . . . the defendant [] in [this] case[] to have the indictments dismissed. The indictments will continue and the case[] will proceed.

On March 28, 2014, defendant entered a conditional guilty plea to the second indictment, which charged him with violating N.J.S.A. 2C:40-26b.1 However, the plea was subject to defendant's right to appeal the denial of his motions to dismiss the indictments. On June 6, 2014, the trial court sentenced defendant to 180 days in prison, without parole, pursuant to the plea agreement. This appeal followed.


Defendant argues that, under Perry, his indictments should be dismissed as he was arrested and subsequently charged with violating N.J.S.A. 2C:40-26b after the court-ordered period of license suspension for his DWI offenses had expired. The State counters that that the phrase "period of license suspension" in the statute should include the period after the initial suspension but before restoration. This argument, however, is unpersuasive because we rejected the same contention in Perry.

In that case, we considered whether, in seven consolidated appeals, the defendants could be charged under N.J.S.A. 2C:40-26a or b when the driving occurred after the court-imposed term of suspension, but before reinstatement, while the defendants remained on administrative suspension. Perry, supra, 439 N.J. Super. at 519. In holding that the statute did not apply to such conduct, we emphasized

[N.J.S.A. 2C:40-26] was designed to "create[] criminal penalties for persons whose driver's licenses are suspended for drunk driving and who, while under suspension for these offenses, unlawfully operate a vehicle." The significantly enhanced consequences to driving while suspended were the legislative response to "reports of fatal or serious accidents that had been caused by recidivist offenders with multiple prior DWI violations." As [State v. Carrigan, 428 N.J. Super. 609, 613 14 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013)] points out, the bill was endorsed by the former Director of the Governor's Council on Alcoholism and Drug Awareness, who also recommended the creation of special-purpose prison facilities for DWI driving recidivists. No such facilities have been created.

[Id. at 523 (second alteration in original) (citations omitted).]

In construing the statute, and giving the language its plain meaning, we explained

The statute is silent as to those driving without reinstatement beyond the court-imposed term of suspension. Had the Legislature intended to include those persons, the necessary language could have easily been included in both sections of the law. It was not. Such language would, obviously, have cast the far wider net the State proposes. The omission is significant, and for us to interpret the statute as the State suggests would be to add terms that may well have been intentionally excluded.

Additionally, common sense requires this interpretation because of the universe of possible combinations giving rise to prosecutions beyond the scope of the plain language. The State's reading of the statute would include under [subsection] a, for example, persons previously convicted of DWI and driving while suspended during the determinate sentenced term, who twenty years later, drive after restoration but while suspended for reasons unrelated to any DWI or refusal. Under [subsection] b, a person could be convicted if found guilty of DWI twice and, years later, after reinstatement on the DWIs, is caught driving while suspended for an unrelated reason.

By giving the statute this more literal reading, we are guided by its plain language, to which we accord a common sense construction, without adding terms not originally included. The interpretive process should end here.

[Id. at 525 26 (citations omitted).]

Perry was decided on March 3, 2015. Thereafter, the State filed a petition for certification to the Supreme Court. While the petition was pending, the Court granted the State's motion to stay the judgment of the appellate division. On July 29, 2015, however, the Court denied the State's petition and vacated the stay that it previously entered.

In this case, defendant was convicted of three DWI offenses in 2001 and 2002. On the last of these incidents, his driver's license was suspended for two years. That period ended on or about September 10, 2004. Later, defendant was arrested on October 11 and December 2, 2012. He was subsequently charged with violating N.J.S.A. 2C:40-26b. Under Perry, defendant may not be charged with driving after the court-ordered period of suspension, even though his license was never reinstated. To find otherwise, would be to engraft additional terms onto the statute that the Legislature did not intend to include and to expand the list of potential prosecutions beyond the scope of the plain language. See id. at 525 26.

Therefore, we reverse the trial court's decision and dismiss defendant's indictments charging him under N.J.S.A. 2C:40-26b, consistent with our decision in Perry.


1 The first indictment was dismissed pursuant to the plea agreement.

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