STATE OF NEW JERSEY v. IRENE E. KOERNER

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5097-15T1

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

IRENE E. KOERNER, a/k/a
GIRNA BALAZOVA,

          Defendant-Appellant.
________________________________

              Submitted December 21, 2017 – Decided January 10, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              14-10-1810.

              David J. Foley, III, attorney for appellant.

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Carey J.
              Huff, Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM

        Following a trial, a jury convicted defendant of the fourth-

degree crime of operating a motor vehicle during a period of

license suspension for a second or subsequent conviction of driving
while intoxicated (DWI), 
N.J.S.A. 2C:40-26(b).     The trial judge

then found defendant guilty of the related motor vehicle offense

of driving while her license was suspended, 
N.J.S.A. 39:3-40.1

     The judge sentenced defendant on the fourth-degree offense

to five years of probation, conditioned on completion of a 364-

day county jail term,2 with a parole ineligibility period of 180

days.   On the driving while suspended motor vehicle violation, the

judge imposed the mandatory minimum penalties for this offense,

which included a $1000 fine, a six-month suspension of defendant's

registration, and a six-month loss of driving privileges.       This

appeal followed.

     On appeal, defendant raises the following contentions:

           POINT I

           THE CONVICTION BELOW MUST BE REVERSED . . .
           BECAUSE JUROR [NO.] 275 WAS IMPROPERLY
           DISMISSED.


1
   The police issued additional citations to defendant charging
her with DWI, 
N.J.S.A. 39:4-50; failure to maintain a lane,

N.J.S.A. 39:4-88(b); driving without a license, 
N.J.S.A. 39:3-10;
reckless driving, 
N.J.S.A. 39:4-96; failure to wear a seatbelt,

N.J.S.A. 39:3-76.2f; failure to produce a driver's license,

N.J.S.A. 39:3-29; and failure to stop, 
N.J.S.A. 39:4-144. Pursuant
to a consent order entered by the parties, the trial judge remanded
these violations to the municipal court for resolution.
2
  After sentencing, defendant was mistakenly transferred to State
prison. As a result, the trial court granted defendant's motion
for the entry of an amended judgment of conviction reducing her
sentence to 353 days to ensure that she would serve the custodial
sentence in county jail as intended.

                                 2                          A-5097-15T1
           POINT II

           THE CONVICTION BELOW MUST BE REVERSED BECAUSE
           THE PROOFS OF THE ELEMENTS OF THE OFFENSE WERE
           INSUFFICIENT.

           POINT III

           DEFENDANT'S SENTENCES ARE SUBJECT TO MERGER
           AND SHOULD HAVE BEEN MERGED.

           POINT IV

           THE REMAND OF THE DWI CASE AND OTHER MOVING
           VIOLATIONS   WAS    IMPROPER,    TAINTS   THE
           PROCEEDINGS[,] AND REQUIRES A NEW TRIAL. (NOT
           RAISED BELOW).

           POINT V

           DEFENDANT'S SENTENCE   IS   EXCESSIVE.   (NOT
           RAISED BELOW).

     We find insufficient merit in defendant's Points I, II, IV,

and V, to warrant discussion in a written opinion.          R. 2:11-

3(e)(2).   We add the following brief comments concerning these

contentions.

     During the jury selection process, a prospective juror told

the judge that was she unable to follow and comprehend the judge's

preliminary instructions to the jury pool because she did not

understand English.    The judge took a break in the selection

process to investigate whether an interpreter who spoke Slovak,

the juror's first language, was available to assist the juror.




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After determining that such an accommodation could not be made,

the judge excused the juror.

      Defendant did not object until after the jury was sworn later

in the day, and the judge denied her motion for a mistrial. Because

the   juror    was   not   "able   to   read   and   understand   the   English

language[,]" 
N.J.S.A. 2B:20-1(b), she was not qualified for jury

service,      and    the   judge   properly    excused    her.     Therefore,

defendant's argument to the contrary is clearly without merit.

      We also reject defendant's contention in Point II that the

judge incorrectly relied upon certified dispositions of motor

vehicle offenses showing defendant's prior DWI convictions and the

periods of her license suspensions as proof of the elements of


N.J.S.A. 2C:40-26(b).         The dispositions, which were prepared by

two municipal court administrators who testified at the trial,

were obviously business records admissible in evidence pursuant

to N.J.R.E. 803(c)(6) and (8).           State v. Luzhak, 
445 N.J. Super.
 241, 249 (App. Div. 2016).

      We likewise find no merit in defendant's claim in Point IV

that the judge erred by remanding all of the motor vehicle charges,

other than the driving while suspended offense, to the municipal

court for disposition.         A defendant may waive certain rights at

trial, even if those rights are of a constitutional dimension.

State v. Fortin, 
178 N.J. 540, 609 (2004).               Here, defendant and

                                        4                               A-5097-15T1
the State entered into a consent order remanding the motor vehicle

offenses to the municipal court. In the order, defendant expressly

waived "any [d]ouble [j]eopardy issues" related to having the

motor vehicle charges tried in the municipal court instead of the

Superior Court.          Once having entered into this consent order,

defendant could not appeal its terms. Pressler & Verniero, Current

N.J. Court Rules, cmt. 2.2.3 on R. 2:2-3 (2018); see also N.J.

Schools Constr. Corp. v. Lopez, 
412 N.J. Super. 298, 308 (App.

Div. 2010) (citing Winberry v. Salisbury, 
5 N.J. 240, 255 (1950)).

       We are also satisfied that in sentencing defendant, the judge

made    findings    of    fact   concerning   aggravating    and     mitigating

factors that were based on competent and reasonably credible

evidence    in   the     record,   and   applied   the   correct     sentencing

guidelines.      State v. Case, 
220 N.J. 49, 64-65 (2014).             Because

we discern no basis to second guess the sentence, we reject the

contentions defendant raises in Point V.

       Turning to Point III, we agree with defendant                  that her

conviction for violating 
N.J.S.A. 39:3-40, should have merged into

her    conviction   under    
N.J.S.A.    2C:40-26(b).       Merger    of     these

offenses is appropriate because by definition the criminal offense

of operating a motor vehicle during a period of license suspension

for a second or subsequent DWI conviction under 
N.J.S.A. 2C:40-

26(b) incorporates the motor vehicle offense of driving while

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license suspended under 
N.J.S.A. 39:3-40.             See State v. Frank, 
445 N.J.    Super.    98,   108   (App.   Div.   2016)    (holding     that    "it    is

appropriate to merge the conviction of a[] [criminal] offense and

motor vehicle violation where their elements and the evidence

presented to establish these elements correspond").

       However,    "[m]andatory       penalties      attached    to    a    merged

violation survive merger, even if the elements of the merged

violation are completely encompassed in the surviving violation."

Id. at 109.       Thus, while this matter must be remanded for the

entry of a corrected judgment of conviction (JOC) reflecting the

merger of the two offenses, the mandatory sentence imposed by the

judge under 
N.J.S.A. 39:3-40 need not be disturbed.

       In sum, we affirm defendant's conviction.           We remand for the

entry of an amended JOC reflecting the merger of defendant's

conviction for violating 
N.J.S.A. 39:3-40 into her conviction

under   
N.J.S.A.    2C:40-26(b).        We   otherwise    affirm      defendant's

sentence.    We do not retain jurisdiction.




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