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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3288-18T1






                   Submitted November 5, 2020 – Decided January 11, 2021

                   Before Judges Sumners and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cape May County, Municipal Appeal No. 01-

                   Robert Ramsey, attorney for appellant.

                   Jeffrey H. Sutherland, Cape May County Prosecutor,
                   attorney for respondent (Gretchen A. Pickering, Senior
                   Assistant Prosecutor, of counsel and on the brief).

      In 2007, defendant William E. Swan, Jr. pled guilty in Lower Township

Municipal Court, as a subsequent offender, to driving while intoxicated (DWI),

 N.J.S.A. 39:4-50, arising from a one-car accident in which he was the car's sole

occupant and was injured. His sentence, including a ten-year license suspension,

was consecutive to an earlier ten-year license suspension for his third DWI,

which started in June 2006.

      In 2018, the municipal court granted Swann's Rule 7:6-2(b) motion to

vacate the guilty plea.   The court determined that, in accordance with  N.J.S.A.

2B:12-17.2, the Superior Court had sole jurisdiction over the DWI charge

because he suffered a serious injury in the accident. The statute provides:

            a. In any matter concerning Title 39 of the Revised
            Statutes where death or serious bodily injury has
            occurred, regardless of whether the death or serious
            bodily injury is an element of the offense or
            violation, the Superior Court shall have exclusive
            jurisdiction over the offense or violation until such time
            that the Superior Court transfers the matter to the
            municipal court. For the purposes of this section, the
            term "serious bodily injury" shall have the meaning set
            forth in subsection b. of N.J.S. 2C:11-1.1

 1 N.J.S.A. 2C:11-1(b) defines serious bodily injury as "bodily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ[.]"

             b. The Attorney General may develop guidelines
             establishing procedures to be followed for prosecutions
             involving violations of N.J.S. 2C:11-4, N.J.S. 2C:11-5,
             . . . [N.J.S.A.] 2C:11-5.3[] or . . . [N.J.S.A.] 2C:11-5.1[]
             or criminal offenses involving serious bodily injury and
             underlying motor vehicle offenses arising from the
             same incident consistent with the provisions of . . .
             [ N.J.S.A.] 2B:12-17.2 et al[].

             [N.J.S.A. 2B:12-17.2.]

The court also directed the matter be referred to the county prosecutor for

review. .

      After allowing the State to challenge the municipal court's decision on

interlocutory appeal, Judge Sarah B. Johnson ordered reinstatement of Swann's

guilty plea. Upon vacating the municipal court's order, the judge re-imposed the

initial sentence and credited Swann for fines paid and jail time served.         The

judge also granted defendant's request for a stay of the driver's license

suspension pending appeal.

      Before us, Swann contends  N.J.S.A. 2B:12-17.2(a) is clear on its face and

was misapplied by the judge. Alternatively, he argues that because the judge

determined  N.J.S.A. 2B:12-17.2(a) was ambiguous, she should have applied the

rule of lenity to the statute to preclude the municipal court's jurisdiction over the

DWI charge. We disagree and affirm substantially for the reasons expressed by

Judge Johnson in her thoughtful and cogent opinion.

     In an appeal of a municipal court order, the Law Division makes

independent findings of facts and conclusions of law based on the record

developed in the municipal court. State v. Avena,  281 N.J. Super. 327, 333

(App. Div. 1995) (citing State v. Johnson,  42 N.J. 146, 157 (1964)).          We

"consider only the action of the Law Division and not that of the municipal

court." State v. Oliveri,  336 N.J. Super. 244, 251 (App. Div. 2001) (citation

omitted). Given that the State only challenged the municipal court's legal

conclusions and not its factual findings, this appeal rests solely on the Law

Division's conclusions of law, to which we owe no deference. Manalapan

Realty, L.P. v. Manalapan Twp. Comm.,  140 N.J. 366, 378 (1995) (citing State

v. Brown,  118 N.J. 595, 604 (1990)).

     To aid in our interpretation of  N.J.S.A. 2B:12-17.2(a), we are guided by

some well-known rules.

                  The primary purpose of "statutory interpretation
           is to determine and 'effectuate the Legislature's intent.'"
           State v. Rivastineo,  447 N.J. Super. 526, 529 (App. Div.
           2016) (quoting State v. Shelley,  205 N.J. 320, 323
           (2011)). We initially consider "the plain 'language of
           the statute, giving the terms used therein their ordinary
           and accepted meaning.'" Ibid. "We will not presume
           that the Legislature intended a result different from
           what is indicated by the plain language or add a
           qualification to a statute that the Legislature chose to
           omit." Tumpson v. Farina,  218 N.J. 450, 467-68 (2014)
           (citing DiProspero v. Penn,  183 N.J. 477, 493 (2005)).

            [Tasca v. Bd. of Trs., Police & Firemen's Ret. Sys., 458
            N.J. Super. 47, 56 (App. Div. 2019).]

"On the other hand, if there is ambiguity in the statutory language that leads to

more than one plausible interpretation, we may turn to extrinsic evidence,

'including legislative history, committee reports, and contemporaneous

construction.'" DiProspero,  183 N.J. at 492-93 (quoting Cherry Hill Manor

Assocs. v. Faugno,  182 N.J. 64, 75 (2004)).

      With these principles in mind, we conclude the plain language of  N.J.S.A.

2B:12-17.2(a) is clear – a DWI-related accident involving serious injuries is

within the Superior Court's jurisdiction, not the municipal court's. The statute,

however, does not specifically address the situation in which a person was

charged with a motor vehicle offense, but not charged with an offense within

the Superior Court's jurisdiction. Hence, on its face, the statute is unclear as to

whether it applied to Swann's DWI, because he was the only person injured in

the accident but was not charged with an indictable offense invoking the

Superior Court's jurisdiction. Aided by an examination of the Legislature's

intent in enacting  N.J.S.A. 2B:12-17.2(a), we conclude the statute did not apply

to Swann's DWI charge.

      We agree with Judge Johnson's analysis of the policy behind the

enactment of  N.J.S.A. 2B:12-17.2(a). She cited State v. Dively,  92 N.J. 573,

576 (1983), where the defendant was driving while intoxicated and caused the

death of another driver.     He was issued five municipal court summonses,

including one for DWI. Ibid. "When the municipal court hearings commenced

. . . the parties and the court were aware of the death resulting from the accident."

Ibid. After the defendant pled guilty to DWI and other motor vehicle violations

in municipal court, a grand jury later indicted him for causing death by auto,

 N.J.S.A. 2A:113-9 (repealed), based on the same accident that was the subject

of the municipal court convictions. Id. at 576-77.

      Although the defendant entered a guilty plea to the criminal charge in

Superior Court, the next day, the United States Supreme Court issued its

decision in Illinois v. Vitale,  447 U.S. 410 (1980). Id. at 577. In that case,

Vitale carelessly drove his car and struck two children who died from their

injuries. Vitale,  447 U.S.  at 411. After the driver was convicted of a traffic

offense related to the accident, he was indicted for involuntary manslaughter for

the death of the two children. Id. at 412-13. The Supreme Court held if the

prosecution of Vitale on the criminal charges required the same proofs necessary

to establish the motor vehicle violation, Vitale's prosecution on the criminal

charges would be barred by the Double Jeopardy Clause of the United States

Constitution. Id. at 421. The matter was remanded for a determination of

whether Illinois could prove involuntary manslaughter without proving the facts

supporting the motor vehicle offense of which Vitale was convicted. Ibid.

        Believing that the decision in Vitale barred his conviction on the death by

auto charge on double jeopardy grounds, the defendant in Dively moved to

withdraw his guilty plea. Dively,  92 N.J. at 577. The prosecutor conceded that

the same evidence that would have been offered to prove the municipal court

charges would be necessary to prove the criminal charge against the defendant.

Ibid.    The Superior Court permitted the defendant to enter a guilty plea

conditioned on his right to raise on appeal the double jeopardy argument, which

the trial court denied. Ibid.

        Our Supreme Court held that the motor vehicle violations of which Dively

was convicted and the criminal offense for which he was indicted were based on

the same facts. Id. at 582-83. Thus, the Court concluded, in order to prove the

criminal charge, the State would rely on the same evidence and alleged acts that

underlie the motor vehicle offenses, triggering double jeopardy protections.

Ibid. To prevent this situation from arising in the future, the Court reiterated its

prior directive that

            where a complaint is filed in the municipal court and
            the magistrate has reason to believe that the factual
            situation out of which the complaint arose may also
            involve an indictable offense, the matter should be
            referred to the county prosecutor.

            [Id. at 589-90.]

      In addition, the Court issued a "directive to all municipal court judges to

withhold actions on drunk driving incidents involving personal injuries until

clearance to proceed has been obtained from the county prosecutor." Id. at 590.

This was followed by a May 3, 1983 Administrative Directive from the Court

providing that when a complaint is issued in the municipal court and the judge

or administrator believes the factual situation also involves an indictable

offense, the matter should be referred to the prosecutor. In re Seelig,  180 N.J.
 234, 241-44 (2004) (holding defense counsel had an ethical obligation to advise

municipal court of pending indictable offenses arising from motor vehicle


      In her written opinion, Judge Johnson relied upon the January 26, 2006

Assembly Committee Statement to ascertain the intent behind  N.J.S.A. 2B:12-

17.2(a). The Statement reads:

                   The New Jersey Supreme Court has ruled that,
            after a defendant pleads guilty in municipal court to
            traffic offenses, the double jeopardy provisions of the
            State and federal constitutions bar a subsequent

prosecution against him in Superior Court for criminal
charges arising out of the same incident. State v.
Dively,  92 N.J. 573 (1983).

        This bill was prompted by an incident in which a
Trenton couple was killed but the defendant had entered
a guilty plea in municipal court to traffic offenses prior
to the resolution of the criminal charges for aggravated
manslaughter and death by auto. Under Dively, the
disposition in municipal court of the traffic offenses
precluded the prosecutor from bringing the defendant
to trial on the criminal charges. It is the intention of the
sponsor that established guidelines may prevent this
type of situation from occurring in the future.

       The bill provides that in any matter concerning a motor
vehicle incident where death or serious bodily injury has
occurred, regardless of whether death or serious bodily injury
is an element of the offense or violation, the Superior Court
shall have exclusive jurisdiction over the offense or violation
until such time that the Superior Court transfers the matter to
the municipal court. By clearly and unequivocally placing
jurisdiction with regard to these matters with the Superior
Court, the bill would provide for one court to resolve the case
as opposed to two different courts, the municipal and Superior
Court, working at odds with each other.

      The bill provides that the Attorney General may
develop guidelines on this issue and may disseminate
the   guidelines    to    the    county prosecutors.

      This bill was pre-filed for introduction in the
2006-2007 session pending technical review. As
reported, the bill includes the changes required by
technical review, which has been performed.

[Assemb. Judiciary Comm. Statement to A.911 (Jan.
26, 2006)]

      In her written opinion concluding the municipal court misinterpreted

 N.J.S.A. 2B:12-17.2(a), the judge held:

            I find that [N.J.S.A. 2B:12-17.2(a)] is ambiguous with
            respect to whether the [S]uperior [C]ourt obtains
            jurisdiction in the circumstances presented here. Thus,
            an examination of the statute's legislative history is
            appropriate to determine its intent.


            . . . I find that  N.J.S.A. 2B:12-17.2(a) was enacted by
            the Legislature to prevent defendants from using the
            holding in Dively to avoid criminal prosecution for
            more serious offenses by resolving the related traffic
            violations in municipal court before resolution of
            indictable offenses arising from a traffic accident. My
            finding is supported by the January 26, 2006 Assembly
            Committee Statement, which provides that [the] goal of
            the statute is to provide for the disposition of motor
            vehicle incidents involving death or serious bodily
            injury in one court and to avoid the municipal and
            [S]uperior [C]ourt "working at odds with each other."


            As [d]efendant was the only individual who suffered
            any injury as a result of the November 13, 2006 motor
            vehicle incident, I find that he was never in danger of
            being exposed to liability in two courts because the
            criminal code does not authorize prosecution of a
            defendant for self-inflicted injuries.


               . . . I find that [d]efendant, by invoking  N.J.S.A. 2B:12-
               17.2 (a) . . . is seeking to use double jeopardy
               precedents to avoid penalties for his previously
               admitted unlawful conduct. Should his guilty plea
               remain vacated, [d]efendant would not face any
               criminal charges, and the State would have the difficult
               task of proving at trial motor vehicle offenses alleged
               to have occurred over twelve [] years ago. I do not find
               such a result was either intended or anticipated by the
               Legislature in enacting the statute; nor do I find such
               result in the interests of justice.

               Therefore, I find that the language of  N.J.S.A. 2B:12-
               17.2(a) is ambiguous in its application to the present
               situation wherein the driver charged with motor vehicle
               violations is the only individual injured as a result of
               the alleged offenses . . . . I resolve that ambiguity
               consistent with the State's interpretation and find that
               the proper venue for this matter was the Lower
               Township Municipal Court, which possessed exclusive
               jurisdiction based on the facts and circumstances
               presented in the record.

      We discern no sound reason to deviate from Judge Johnson's ruling. It is

clear that  N.J.S.A. 2B:12-17.2(a) was meant to address a situation where an

incident results in a person being charged with a municipal court offense as well

as a Superior Court indictable offense; the county prosecutor must review all the

charges to determine how they will be adjudicated to avoid constitutional

limitations.    This will eliminate double jeopardy concerns that might bar

prosecution of the more serious indictable offenses should the municipal court

offense be resolved first and rely upon the same facts that are needed to

prosecute the Superior court offense. R. 3:1-5(a) ("All indictable offenses shall

be prosecuted in the Superior Court, Law Division . . . ."). See also State v.

Muniz,  118 N.J. 319, 331-34 (1990) (holding death by auto and lesser-included

motor vehicle offenses must be tried together before the Superior Court).

      We find further support for the judge's order in  N.J.S.A. 2B:12-17.2(b),

which states the Attorney General may set prosecution guidelines concerning

"criminal offenses involving serious bodily injury and underlying motor vehicle

offenses arising from the same incident." This implies the statute only applies

where a defendant is charged with both criminal offenses and motor vehicle

offenses. Because Swann's DWI-related accident caused only his injury and no

indictable offense resulted, there was no need to invoke the county prosecutor's

review as set forth in  N.J.S.A. 2B:12-17.2(a). It would be an absurd result to

require such review given that the intent behind the statute would not be

furthered – Swann faced no criminal prosecution in Superior Court related to

the DWI charge.

      Finally, we reject Swann's argument that because  N.J.S.A. 2B:12-17.2(a)

is ambiguous, the rule of lenity should be invoked in his favor to allow him to

vacate his guilty plea. State v. D.A.,  191 N.J. 158, 164 (2007). (Db11). He

also asserts that failure to do so will punish him under a penal statute that has

not been established under the law. In re DeMarco,  83 N.J. 25, 36 (1980) ("No

one shall be punished for a crime unless both that crime and its punishment are

clearly set forth in positive law."). (Db10-11).

        The rule of lenity "holds that, when interpreting a criminal statute,

ambiguities that cannot be resolved by either the statute's text or extrinsic aids

must be resolved in favor of the defendant." State v. Drake,  444 N.J. Super.
 265, 284 (App. Div. 2016) (quoting State v. Rangel,  213 N.J. 500, 515 (2013)).

The rule therefore only applies if a statute's "ambiguity is not resolved by a

review of 'all sources of legislative intent.'" State v. Nicholson,  451 N.J. Super.
 534, 552 (App. Div. 2017) (emphasis added) (quoting State v. Regis,  208 N.J.
 439, 452 (2011)). Given that our interpretation of  N.J.S.A. 2B:12-17.2(a) is

aided by legislative history and case law, the rule of lenity has no application




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