State of New Jersey v. Suzanne Sylvester

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5192-12T4
STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

June 17, 2014
v.
APPELLATE DIVISION
SUZANNE SYLVESTER,

Defendant-Appellant.

__________________________________

Argued September 18, 2013 – Decided March 10, 2014

Before Judges Fuentes, Simonelli and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
12-07-00511.

Joseph B. Truland, Jr., argued the cause for
appellant.

Annemarie L. Mueller, Assistant Prosecutor,
argued the cause for respondent (Geoffrey D.
Soriano, Somerset County Prosecutor, attorney;
Ms. Mueller, of counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant Suzanne Sylvester was tried before the Law

Division, Criminal Part in Somerset County on one count of

fourth degree driving while her license was suspended or revoked

for a second or subsequent conviction for operating a motor
vehicle while under the influence of alcohol (DWI), N.J.S.A.

2C:40-26b. Defendant waived her constitutional right to a trial

by jury, and agreed to be tried before Judge Robert B. Reed,

acting as the trier of fact.

Based on facts stipulated by defendant and the State on the

record, Judge Reed found defendant guilty and sentenced her to a

three-year term of probation subject to a mandatory minimum term

of 180 days incarceration1 without parole, and imposed other

statutorily required fines and penalties.2

In this appeal, defendant's principal arguments are

predicated on collaterally attacking the legal viability of the

Title 39 convictions that formed the underlying basis for

criminal culpability under N.J.S.A. 2C:40-26b. We reject these

arguments and affirm. We gather the following facts from the

record developed before the trial court.

I

On April 19, 2013, defendant appeared before Judge Reed

represented by private counsel. The Assistant Prosecutor

representing the State and defense counsel informed the court

1
By order dated July 11, 2013, we granted defendant's motion and
stayed the execution of the custodial term pending the outcome
of this appeal.
2
The trial court also merged defendant's conviction of the
parallel offense under Title 39 of driving while her license was
suspended. N.J.S.A. 39:3-40.

2 A-5192-12T4
that they had agreed to submit on stipulated facts, "and

therefore, no witnesses regarding the stipulations are required

to testify at trial." The Assistant Prosecutor then placed the

following stipulated facts on the record:

First, on March 25th of 2012, defendant
Susan [sic] Sylvester was knowingly driving
her motor vehicle on Route 206 in Peapack-
Gladstone, New Jersey. She pulled to the
side of the road. Officer Anthony Damiano
from the Peapack-Gladstone Police Department
pulled behind the defendant. Defendant told
Officer Damiano that she was driving and had
run out of gas.

Second. Officer Damiano learned that
defendant's driver's license was currently
suspended for a DWI conviction. On February
17th of 2011, defendant was convicted in
Mendham Municipal Court of DWI in violation
of N.J.S.A. 39:4-50. She was sentenced to a
two-year loss of driver's license. That
driver's license suspension began on
February 17th, 2011 and was to end on
February 17th, 2013.

[Third.] Defendant knew her driver's license
was suspended for a second or subsequent DWI
conviction when she operated her motor
vehicle in Peapack-Gladstone on March 25th
of 2012.

[Fourth.] The February 17th, 2011, DWI
conviction was the defendant's third DWI
conviction. She was previously convicted of
DWI on September 16th, 1992, out of
Branchburg, New Jersey, and again on April
2, 1991, out of Mendham, New Jersey.

[Fifth.] On July 12th, 2012, defendant was
indicted in Somerset County for operating a
motor vehicle during a period of license

3 A-5192-12T4
 suspension, fourth degree, in violation of
N.J.S.A. 2C:40-26(b).

[Sixth.] On August 15th of 2012, defendant
filed a Post-Conviction Relief Motion in the
Mendham Municipal Court seeking to vacate
the February 17th, 2011, DWI conviction.
The motion was granted on September 22nd,
2012. Defendant repled [sic] to the DWI
charge that day, and her license was
suspended for two years beginning September
22nd, 2012.

The State also moved into evidence a number of exhibits

which mostly involved documents establishing defendant's history

of Title 39 violations. We decline to list each of these items

because, with one exception, this evidence is not relevant to

the issues raised in this appeal. The one exception noted was

exhibit "S-3", which was admitted into evidence by the trial

court without objection. S-3 is the Notification of Penalties

for Subsequent DWI or Driving on the Revoked List dated February

17, 2011.

Against this stipulated record, defendant, through her

counsel, moved to dismiss the indictment, or for a finding of

not guilty as a matter of law. Defense counsel argued to Judge

Reed that the post-conviction relief granted by the Mendham

Municipal Court, which vacated the February 17, 2011 DWI

conviction, voided that conviction ab initio, precluding the

State from relying on this conviction to meet its burden of

proof under N.J.S.A. 2C:40-26b. Stated differently, because the

4 A-5192-12T4
Mendham Municipal Court found sufficient grounds to vacate

defendant's February 17, 2011 DWI conviction, the sentence

imposed as a result of this invalid conviction, the suspension

of defendant's driver's license, was likewise nullified and

cannot be used by the State to meet its burden of proof under

N.J.S.A. 2C:40-26b., to wit, that defendant was driving her car

with a validly suspended license.

Applying the standards established by the Court in State v.

Reyes, 50 N.J. 454, 458-59 (1967), and Rule 3:18-1, Judge Reed

denied defendant's motion to dismiss the indictment or

alternatively to enter a judgment of acquittal as a matter of

law. Judge Reed found that

the proofs at the end of the State's case
plainly permit a reasonable fact finder
directly or by way of inference to conclude
beyond a reasonable doubt that . . . on and
before [March 25,] 2012 [defendant's]
driving privilege was suspended by reason of
her second or subsequent conviction of
[DWI].

Further, that the defendant did, knowing
that her driving privileges was suspended by
reason of those prior convictions, or the
last of them, did knowingly operate her
motor vehicle within the jurisdiction of
this Court during the period of license
suspension knowing that the license was
suspended.

As these findings show, S-3 in evidence (the Notification

of Penalties for Subsequent DWI or Driving on the Revoked List

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dated February 17, 2011) played no role in Judge Reed's analysis

and ultimate conclusion to deny defendant's Rule 3:18-1 motion

to dismiss. S-3 was noted by Judge Reed only in the context of

the following colloquy with defense counsel:

THE COURT: All right Let me ask you this
as a matter of law . . .

Is it the defendant's position that S-3 was
legally deficient in that it did not advise
the defendant of the additional penalty of a
fourth degree crime should she be convicted
of driving on the revoked list?

DEFENSE COUNSEL: Yes.

THE COURT: Now, the reason I ask that
question is I wonder out loud, and I expect
although nobody's raised it yet it might be
a subject of some discussion in the
Appellate Division, [N.J.S.A.] 2C:40-26, the
statute under which Ms. Sylvester is now
being prosecuted, was enacted on January 18,
2010, prior to her March 25, 2012, operation
of the motor vehicle. It did not, however,
become effective until the first day of the
. . . month thereafter, which means it
became effective on - -

DEFENSE COUNSEL: September 2011.

THE COURT: - - September 2011. That might
suggest, on the one hand, if the defendant
was on notice of the additional penalty if
she drove. On the other hand, it might
indicate that the State was under an
obligation to advise her of it. The
significance of that bit of information will
be left to my colleagues in the Appellate
Division to discuss and discern.

[(Emphasis added).]

6 A-5192-12T4
 Judge Reed supplemented his oral findings in a memorandum

of opinion in which he described in more detail the legal basis

for his decision to deny defendant's motion to dismiss.

Defendant now appeals raising the following arguments.

POINT I

THE CONVICTION MUST BE VACATED-DEFENDANT'S
DRIVING PRIVILEGE WAS SUSPENDED BY AN
ILLEGAL OR UNCONSTITUTIONALLY IMPOSED COURT
ORDER.

POINT II

THE DEFENDANT'S MOTION FOR A NOT GUILTY
FINDING AT THE END OF THE STATE'S CASE AT
TRIAL PURSUANT TO R. 3:18-1 SHOULD HAVE BEEN
GRANTED.

POINT III

THE DEFENDANT'S CONVICTION FOLLOWING TRIAL
MUST BE REVERSED-THE STATE FAILED TO PROVE
EACH AND EVERY ELEMENT OF THE OFFENSE BEYOND
A REASONABLE DOUBT.

POINT IV

THE CONVICTION MUST BE REVERSED-DEFENDANT
WAS ADVISED BY THE STATE THAT HER ACTIONS
WERE IN VIOLATION OF N.J.S.A. 39:3-40 ONLY,
NOT THE INDICTABLE OFFENSE OF N.J.S.A.
2C:40-26b.

POINT V

THE DEFENDANT MAY NOT BE SENTENCED TO A
MANDATORY JAIL TERM DUE TO THE GRANTING OF A
"LAURICK" ORDER FOR THE PREDICATE DWI
CONVICTION.

7 A-5192-12T4
 We use the same legal standards employed by Judge Reed to

determine the legal sufficiency of defendant's motion to dismiss

the indictment or for a judgment of acquittal under Rule 3:18-1.

State v. Moffa, 42 N.J. 258, 263 (1964). Under the standard

established by the Supreme Court in Reyes, we must determine

"whether, viewing the State's evidence in its entirety . . . and

giving the State the benefit of all its favorable testimony as

well as all of the favorable inferences which reasonably could

be drawn therefrom, a reasonable jury could find guilt . . .

beyond a reasonable doubt." Reyes, supra, 50 N.J. at 459.

Applying this standard to the undisputed facts of this case, we

are in complete agreement with Judge Reed's decision to deny

defendant's motion and enter a judgment finding her guilty of

violating N.J.S.A. 2C:40-26b. The record stipulated by the

parties shows defendant drove her car on March 25, 2012, knowing

that her driving privileges had been suspended for two years

approximately nineteen months earlier, on February 17, 2011.

Defendant nevertheless argues, as she did before Judge

Reed, that the post-conviction relief granted by the Mendham

Municipal Court vacating her February 17, 2011 DWI conviction

voided that conviction ab initio, thus precluding the State from

relying on this conviction to meet its burden of proof under

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N.J.S.A. 2C:40-26b. This argument is without merit. As our

Supreme Court has made clear:

We insist on compliance with judicial orders
to promote order and respect for the
judicial process. Compliance is required,
under pain of penalty, unless and until an
individual is excused from the order's
requirements. Thus, as long as a court order
exists and a defendant has knowledge of it,
the defendant may be prosecuted for a
violation thereof, regardless of its
deficiencies.

[State v. Gandhi, 201 N.J. 161, 190 (2010)
(internal citations omitted).]

We must emphasize that defendant stipulated she knew her

license was suspended pursuant to a presumptively valid court

order when she drove her car on March 25, 2012. Defendant has

not come forward with any explanation that would mitigate her

decision to defy this order by driving her car on the day in

question. This was not a case in which an unforeseen emergency

compelled defendant to undertake a course of action that she

would not have taken under ordinary circumstances. Absent any

mitigation, her actions can be reasonably characterized as

contemptuous of the court's authority. As Judge Reed correctly

noted in his memorandum of opinion, "[a]llowing a defendant to

evade prosecution by going back to the municipal court and

having the underlying conviction vacated would frustrate the

legitimacy of legislation and reliability of court orders."

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 Defendant's reliance on the post-conviction remedy

fashioned by the Court in State v. Laurick, 120 N.J. 1 cert.

denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990),

to address un-counseled DWI convictions3 is equally unavailing.

The Court's remedy in Laurick applied only to the custodial term

required for repeat offenders in a DWI conviction under N.J.S.A.

39:4-50. Id. at 16. This inapplicable here because defendant

was convicted of a fourth degree offense for violating N.J.S.A.

2C:40-26b.

Defendant's remaining arguments lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2). We

vacate our order dated July 11, 2013, staying the execution of

the mandatory custodial term ordered by the trial court under

N.J.S.A. 2C:40-26b, and order defendant to surrender to the

Warden of the Somerset County Correctional Facility within three

calendar days of the date this opinion is formally decided, or

to such other facility or location designated by the Somerset

County Prosecutor's Office.

Affirmed.

3
We do not know the underlying legal basis relied on by the
Mendham Municipal Court to support the post-conviction relief
awarded to defendant because defendant did not provide us with a
transcript of those proceedings as part of this appellate
record.

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