State of New Jersey v. Louise Frank

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0832-13T1

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, March 29, 2016

v. APPELLATE DIVISION

LOUISE FRANK,

Defendant-Appellant.
_____________________________________

Argued March 3, 2015 – Decided March 29, 2016

Before Judges Messano, Ostrer and Sumners.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
10-04-00627.

Philip Nettl argued the cause for appellant
(Benedict and Altman, attorneys; Mr. Nettl,
on the brief).

Joie Piderit, Assistant Prosecutor, argued the
cause for respondent (Andrew C. Carey,
Middlesex County Prosecutor, attorney; Ms.
Piderit, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

A jury found defendant Louise Frank guilty of fourth-degree

leaving the scene of a motor vehicle accident involving serious
bodily injury, N.J.S.A. 2C:12-1.1.1 The judge, thereafter, found

defendant guilty of leaving the scene of a motor vehicle accident

resulting in injury, N.J.S.A. 39:4-129(a). At sentencing, the

trial court ordered that the motor vehicle violation merged into

the crime, but that the penalties survived merger.2 Defendant was

sentenced to a four-year term of probation on the N.J.S.A. 2C:12-

1.1 offense, but the court determined that a custodial sentence

of 180 days was mandated by N.J.S.A. 39:4-129(a).

Defendant appealed, arguing:

POINT I

THE CUSTODIAL PORTION OF DEFENDANT'S SENTENCE
SHOULD BE VACATED, BECAUSE THE TRIAL COURT
MISINTERPRETED N.J.S.A. 39:4-129(a) BY
FINDING THAT INCARCERATION WAS MANDATORY.

POINT II

DEFENDANT'S CONVICTION FOR N.J.S.A. 39:4-
129(a) SHOULD MERGE INTO HER CONVICTION FOR
N.J.S.A. 2C:12-1.1.

1
The indictment incorrectly stated N.J.S.A. 2C:12-1.1 is a fourth-
degree crime, although the Legislature upgraded it to a third-
degree crime effective May 4, 2007. L. 2007, c. 83, § 2. The
State never sought to amend the indictment, and the matter was
tried and sentenced as a fourth-degree offense. Thus, this decision
will reflect that defendant was found guilty of a fourth-degree
crime.
2
However, the court did not record on the motor vehicle summons
that the motor vehicle violation merged with the criminal offense.
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 We have reviewed the contentions advanced on appeal, and in

light of the record and applicable law, we reverse and remand for

resentencing. The trial court correctly determined that the motor

vehicle violation, N.J.S.A. 39:4-129(a), merged into the offense

under the New Jersey Code of Criminal Justice (Code), N.J.S.A.

2C:12-1.1. While mandatory penalties imposed by the motor vehicle

provision survive merger, the trial court erred in concluding that

N.J.S.A. 39:4-129(a) mandates a custodial sentence.

I.

Considering that the primary challenge before us involves

interpreting a motor vehicle statute's sentencing requirements, a

lengthy discussion of the record is unnecessary. Suffice it to

say that on March 30, 2009, defendant was driving her vehicle in

her neighborhood when she got into an altercation with two women

who were walking their dogs. Defendant was accused of driving her

vehicle into one of the women, injuring her, and leaving without

waiting for the police. Consequently, defendant was charged that

same day with the following motor vehicle offenses: reckless

driving, N.J.S.A. 39:4-96; failure to report an accident, N.J.S.A.

39:4-130; and leaving the scene of an accident, N.J.S.A. 39:4-

129(a).

Defendant was later indicted for second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1) (count one); fourth-degree assault

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by auto, N.J.S.A. 2C:12-1(c)(1) (count two); and fourth-degree

leaving the scene of an accident involving serious bodily injury,

N.J.S.A. 2C:12-1.1 (count three).3 At trial, a jury found

defendant guilty of count three, but was unable to reach a verdict

on counts one and two. After retrial resulted in another hung

jury and mistrial, defendant's motion to bar a third trial was

granted and the unresolved counts were dismissed with prejudice.

On September 24, 2013, the trial court, relying upon the

earlier testimony provided at the jury trial and supplemented with

oral argument by counsel, issued a decision on the motor vehicle

summonses. Defendant was acquitted of reckless driving, but was

found guilty of leaving the scene of an accident and failure to

report an accident.

The court then sentenced defendant on all offenses arising

from the incident, stating that the criminal offense and motor

vehicle violation were merged with the penalties surviving merger.

After considering the aggravating and mitigating factors, the

court placed defendant on probation for four years, with certain

conditions, for the N.J.S.A. 2C:12-1.1 offense. However, the

court found that there was a mandatory prison term of 180 days for

the N.J.S.A. 39:4-129(a) violation because a victim suffered a

bodily injury, and sentenced defendant accordingly. Despite

3
An initial indictment was dismissed without prejudice.
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maintaining that the statute was ambiguous regarding the

imposition of a prison term, the court determined that the

statute's reference to 180 days prison term was a "shall provision"

if there was a "finding of a bodily injury." The court also

suspended defendant's driving privileges for a year. However,

when recording the sentence and penalties on the motor vehicle

summons, the court did not note that the violation merged with the

criminal offense. The judgment of conviction (JOC) also failed

to indicate the merger.

Defendant's request to stay the custodial portion of the

sentence was granted so that defendant may perfect appeal and make

an application for bail.4 This appeal followed.

II.

Before us, defendant contends that the trial court erred by

finding that incarceration is required when a defendant is

convicted under N.J.S.A. 39:4-129(a) for leaving the scene of a

motor vehicle incident involving bodily injury to another. We

agree.

The statute provides:

The driver of any vehicle, knowingly involved
in an accident resulting in injury or death
to any person shall immediately stop the
vehicle at the scene of the accident or as
close thereto as possible . . . . Any person

4
The trial court subsequently granted defendant's application for
bail pending appeal.
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 who shall violate this subsection shall be
fined not less than $2,500 nor more than
$5,000, or be imprisoned for a period of 180
days, or both. The term of imprisonment
required by this subsection shall be imposed
only if the accident resulted in death or
injury to a person other than the driver
convicted of violating this section.

In addition, any person convicted under this
subsection shall forfeit his right to operate
a motor vehicle over the highways of this
State for a period of one year from the date
of his conviction for the first offense and
for a subsequent offense shall thereafter
permanently forfeit his right to operate a
motor vehicle over the highways of this State.

[Ibid.]

Specifically, defendant maintains that the statute's plain

language grants the court discretion to impose a custodial sentence

only in cases where there is an injury of another person.

Defendant also argues that there is nothing in the statute's

legislative history indicating the Legislature's intention to

impose a mandatory term of incarceration.

The last sentence of the subsection's first paragraph was

added by a 1994 amendment which increased penalties. Defendant

cites the Sponsor's Statement, stating: "The bill provides that

the term of imprisonment shall be imposed only if a person other

than the driver was killed or injured." L. 1994, c. 183. Defendant

maintains that the Statement "never says that term of imprisonment

was becoming mandatory in any situation." Further, defendant

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contends that if there is some ambiguity over whether the statute

requires a mandatory jail term if someone else is injured, under

the rule of lenity, the statute is construed strictly and

interpreted in favor of a criminal defendant, and would not result

in an interpretation calling for imprisonment. State v.

Livingston, 172 N.J. 209, 218 (2002).

The State, also relying upon the plain language of N.J.S.A.

39:4-129(a), argues that the court properly interpreted the

statute, and mandatorily sentenced defendant to 180 days in prison

because her accident injured someone. The State relies upon the

same Sponsor's Statement cited by defendant to support its position

that imprisonment is only mandatory where the accident resulted

in death or injury to a person other than the driver.

Our scope of review of the findings made by a judge after a

bench trial is limited. State v. Locurto, 157 N.J. 463, 470-71

(1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)).

However, where issues on appeal turn on interpretation of the law,

there is no deference to the determinations of the trial court,

and our review is de novo. State v. Gandhi 201 N.J. 161, 176

(2010); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995) (We owe no deference to the trial court's

"interpretation of the law and the legal consequences that flow

from established facts.").

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 The principles governing statutory interpretation are well-

established. Our goal is to determine and effectuate the

Legislature's intent. State v. Olivero, 221 N.J. 632, 639 (2015).

We begin with examining the plain language of the statute. State

v. Munafo, 222 N.J. 480, 488 (2015) (citing State v. Frye, 217

N.J. 566, 575 (2014)); Gandhi, supra, 201 N.J. at 161. "It is a

basic rule of statutory construction to ascribe to plain language

its ordinary meaning." Bridgewater-Raritan Educ. Ass'n v. Bd. of

Educ., 221 N.J. 349, 361 (2015) (citing D'Annunzio v. Prudential

Ins. Co. of Am., 192 N.J. 110, 119-20 (2007)); see also Wilson ex

rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012)

(stating that a provision "should not be read in isolation, but

in relation to other constituent parts so that a sensible meaning

may be given to the whole of the legislative scheme"). If the

language is clear, our task is complete; if it is not, we may turn

to extrinsic evidence. In re Kollman, 210 N.J. 557, 568 (2012)

(citations omitted). The legislative history is examined where

the statute's plain language is unclear or can be given "more than

one possible meaning[.]" Marino v. Marino, 200 N.J. 315, 329

(2009).

A penal statute must be strictly construed. Olivero, supra,

221 N.J. at 639. The doctrine of lenity, which gives words their

ordinary meaning and affords any reasonable doubt in favor of the

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defendant, is "applied only if a statute is ambiguous, and that

ambiguity is not resolved by a review of 'all sources of

legislative intent.'" Id. at 640. Furthermore, the rule of lenity

is not invoked simply because competing interpretations are

proffered about a statute's meaning. State v. Regis, 208 N.J.

439, 451 (2011).

In pertinent part, N.J.S.A. 39:4-129(a) provides, "Any person

who shall violate this subsection shall be fined not less than

$2,500 nor more than $5,000, or be imprisoned for a period of 180

days, or both." (Emphasis added). The possible penalties are

each separated by a comma and the word "or." Thus, the key to

interpreting whether imprisonment is mandatory under the statute

involves the Legislature's use of punctuation and inclusion of the

word "or" in the statute.

We recently addressed the rules of construction on

punctuation and the word "or," in In re Estate of Fisher, 443 N.J.

Super. 180, 190-96 (App. Div. 2015). We concluded that

"'[p]unctuation is part of an act and may be considered in its

interpretation.'" Id. at 192 (quoting Commerce Bancorp, Inc. v.

InterArch, Inc., 417 N.J. Super. 329, 336 (App. Div. 2010), cert.

denied, 205 N.J. 519 (2011)). "'The word "or" in a statute is to

be considered a disjunctive particle indicating an alternative.'"

Ibid. (quoting State v. Kress, 105 N.J. Super. 514, 520 (Law Div.

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1969)). Hence, where "'items in a list are joined by a comma

. . . , with an "or" preceding the last item, the items are

disjunctive,' [meaning] distinct and separate from each other."

Ibid. (quoting State v. Smith, 262 N.J. Super. 487, 506 (App. Div.

1993)).

Applying these rules of statutory construction and the

statute's plain language, we conclude that a person who leaves the

scene of a motor vehicle accident resulting in injury in violation

of N.J.S.A. 39:4-129(a) can be penalized in three distinct and

separate ways. First, there can be a fine "of not less than $2,500

nor more than $5,000[.]" Second, there can be imprisonment "for

a period of 180 days[.]" Third, there can be "both" a fine and

prison term. However, there is no mandatory requirement that a

person serve a 180 day prison term for the offense. The statutory

language that a prison term "shall be imposed only if the accident

resulted in death or injury to a person other than the driver

convicted" does not alter our interpretation. (Emphasis added).

"Only if" denotes a necessary condition for imposing a prison

term, but not a sufficient one.5 The clause merely qualifies the

circumstances upon which a prison term may be imposed.

5
By contrast, "if and only if" denotes both a necessary and
sufficient condition.
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 In concluding that the plain meaning of the statute's punitive

measures are clear, we need not consider the parties' arguments

concerning the statute's legislative history and doctrine of

lenity. See Regis, supra, 208 N.J. at 451-52 (declining to apply

rule of lenity to interpretation of N.J.S.A. 39:4-88(b) because

the plain language was clear).

III.

We next turn to the merger of N.J.S.A. 39:4-129(a) into

N.J.S.A. 2C:12-1.1. There is no dispute that, at sentencing, the

judge stated the violation would merge into the offense, (although

he failed to note the merger on the motor vehicle complaint-summons

and JOC).

Merger is a concept which implicates "a defendant's

substantive constitutional rights," and invokes "the principle

that 'an accused [who] has committed only one offense . . . cannot

be punished as if for two." State v. Miller, 108 N.J. 112, 116

(1987) (citations omitted). It seeks to avoid multiple punishment

for the same conduct. Ibid. Merger can be statutorily prescribed

for criminal code offenses. N.J.S.A. 2C:1-8(a)(1) provides, in

part, that "[w]hen the same conduct of a defendant may establish

the commission of more than one offense, the defendant may be

prosecuted for each such offense" but not "convicted of more than

one offense" unless "[o]ne offense is included in the other."

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 However, here, defendant was convicted of a criminal offense

and a motor vehicle violation. Title 39 violations "fall within

the generic category of petty offenses that do not fit within the

Code's definition of a lesser-included criminal offense." State

v. Stanton, 176 N.J. 75, 98 (2003), cert. denied, 540 U.S. 903,

124 S. Ct. 259, 157 L. Ed. 2d 187 (2003). Thus, N.J.S.A. 2C:1-8

does not apply to motor vehicle violations, only criminal offenses.

Id. at 99.

Nevertheless, a motor vehicle violation is "consolidated for

trial with indicted offenses, not because they are lesser-included

criminal offenses of the crimes charged in an indictment, but

because our jurisprudence and Rule 3:15-3(a)(1)[6] require

consolidation of even Title 39 offenses to avoid double jeopardy

problems." Id. at 100-01 (citations omitted). Thus, we conclude

that where there is consolidation, it is appropriate to merge the

conviction of an offense and motor vehicle violation where their

elements and the evidence presented to establish these elements

correspond. See e.g. State v. Mara, 253 N.J. Super. 204, 214

6
Rule 3:15-3(a)(1) provides, in pertinent part, "the court shall
join any pending non-indictable complaint for trial with a criminal
offense based on the same conduct or arising from the same
episode."

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(App. Div. 1992) (no merger of the criminal offense of aggravated

assault and driving while intoxicated (DWI) violation because

intoxication was not an element of the assault).

Here, merger was appropriate because by definition the

criminal offense incorporates the motor vehicle violation. A

motor vehicle operator is guilty of N.J.S.A. 2C:12-1.1 when he

"knows he is involved in an accident and knowingly leaves the

scene of that accident under circumstances that violate the

provisions of [N.J.S.A.] 39:4-129 . . . if the accident results

in serious bodily injury to another person.

Turning to the impact of the penalties for the merged offense

and violation, the State contends that State v. Baumann, 340 N.J.

Super. 553 (App. Div. 2001), requires the penalties survive merger.

Defendant does not argue otherwise.

In Baumann, we concluded that the defendant's conviction for

DWI, N.J.S.A. 39:4-50, merged into his conviction for third-degree

aggravated assault, N.J.S.A. 2C:12-1b(7), and that the DWI

penalties, including a six-month license suspension, survived

merger. Baumann, supra, 340 N.J. Super. at 554-57. We reasoned

that "criminal jurisprudence of this State permits the survival

of mandatory penalties attendant upon a lesser charge when merged

with a more serious offense that does not carry those penalties."

Id. at 557. We also recognized that the DWI penalties "represent

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not only punishment for the offender but also protection for the

driving public." Ibid. In reaching this decision we noted:

The Supreme Court has so held when a third-
degree controlled dangerous substance school-
zone offense under N.J.S.A. 2C:35-7, requiring
a mandatory parole ineligibility period, is
merged into a first- or second-degree drug
offense that does not impose a mandatory
parole ineligibility term. And this court has
so held in respect of merger of a lesser-
degree offense under N.J.S.A. 2C:35-7.1 (drug
offense committed within 500 feet of
designated public facilities) into a higher-
degree drug offense.

[Ibid.]

Mandatory penalties attached to a merged violation survive merger,

even if the elements of the merged violation are completely

encompassed in the surviving violation. See State v. Reiner, 180

N.J. 307, 319-30 (2004) (holding that DWI violation under N.J.S.A.

39:4-50(a) merges into DWI-school zone violation under N.J.S.A.

39:4-50(g), but enhanced penalties for the former, in case of a

second offender, survive merger).

Thus, notwithstanding merger, the court was required to

impose the sentences mandated by N.J.S.A. 39:4-129(a), to the

extent they exceed those required by N.J.S.A. 2C:12-1.1. Here,

the criminal offense and motor vehicle violation penalties differ

in two respects. First, as we discussed above, the court must

impose, as a minimum, a fine of at least $2500 (but no more than

$5000) or a jail term of 180 days for the motor vehicle violation.
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N.J.S.A. 39:4-129(a). By contrast, for the fourth-degree Code

offense, the court may, but is not required to, impose a fine of

up to $10,000, see N.J.S.A. 2C:43-2(b)(3). The court may, but is

not required to impose a custodial term. N.J.S.A. 2C:43-2(b)(6).

Second, N.J.S.A. 39:4-129(a) mandates a one-year license

suspension for a first-time offender and a permanent loss of

license for a subsequent offense. By contrast, for the Code

offense, a court may, but is not mandated to, impose a license

suspension of up to two years if a motor vehicle is used in the

course of the offense. N.J.S.A. 2C:43-2(c). We conclude that the

Legislature intended that these penalties, mandated by N.J.S.A.

39:4-129(a), would survive merger.

The court correctly imposed the one-year license suspension.

However, the court must comply with the mandate to impose either

a fine of at least $2500 (but no more than $5000), or a sentence

of 180 days.

In sum, we reverse the trial court's imposition of a 180-day

imprisonment term for defendant's violation of N.J.S.A. 39:4-

129(a), because the court imposed the term based on the

misimpression that it had no alternative to imposing that term.

We remand for resentencing. Upon merger of the motor vehicle

violation into the Code offense, the court shall impose a sentence

that includes the mandatory aspects of the sentence for the

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violation. The court shall properly document the merger on the

summons and the judgment of conviction.

Reversed and remanded. We not retain jurisdiction.

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