NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-5097-15T1
STATE OF NEW JERSEY,
IRENE E. KOERNER, a/k/a
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.
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
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,
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
On appeal, defendant raises the following contentions:
THE CONVICTION BELOW MUST BE REVERSED . . .
BECAUSE JUROR [NO.] 275 WAS IMPROPERLY
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. 39:4-96; 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.
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.
THE CONVICTION BELOW MUST BE REVERSED BECAUSE
THE PROOFS OF THE ELEMENTS OF THE OFFENSE WERE
DEFENDANT'S SENTENCES ARE SUBJECT TO MERGER
AND SHOULD HAVE BEEN MERGED.
THE REMAND OF THE DWI CASE AND OTHER MOVING
VIOLATIONS WAS IMPROPER, TAINTS THE
PROCEEDINGS[,] AND REQUIRES A NEW TRIAL. (NOT
DEFENDANT'S SENTENCE IS EXCESSIVE. (NOT
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
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.
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
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
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
26(b) incorporates the motor vehicle offense of driving while
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
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
N.J.S.A. 2C:40-26(b). We otherwise affirm defendant's
sentence. We do not retain jurisdiction.