State of New Jersey v. Robert Luzhak

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2445-14T3

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
April 27, 2016
v.
APPELLATE DIVISION

ROBERT LUZHAK,

Defendant-Appellant.
_____________________________________

Argued April 6, 2016 – Decided April 27, 2016

Before Judges Ostrer, Haas and Manahan.1

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
No. 13-12-1521.

Kenneth A. Vercammen argued the cause for
appellant.

Brian D. Gillet, Deputy First Assistant
Prosecutor, argued the cause for respondent
(Andrew C. Carey, Middlesex County
Prosecutor, attorney; Mr. Gillet, of counsel
and on the brief).

The opinion of the court was delivered by

MANAHAN, J.A.D.

Defendant Robert Luzhak appeals from his conviction for

violating N.J.S.A. 2C:40-26(b) by driving during a second

1
Judge Ostrer did not participate in oral argument. He joins
the opinion with the consent of counsel. R. 2:13-2(b).
license suspension for driving while intoxicated (DWI). We

affirm.

On October 13, 2013, defendant was issued a motor vehicle

summons in Woodbridge for driving with a suspended license,

N.J.S.A. 39:3-40, following a minor car accident in a parking

lot. At the time, defendant had two prior DWI convictions: a

March 2013 conviction in Maryland, and an April 2010 conviction

in New Jersey.

Defendant was indicted by a Middlesex County Grand Jury on

December 19, 2013, for fourth-degree operating a motor vehicle

during a second license suspension stemming from a DWI, in

violation of N.J.S.A. 2C:40-26(b). Defendant filed a motion to

dismiss the indictment, arguing the March 2013 conviction in

Maryland did not qualify as a predicate DWI conviction pursuant

to N.J.S.A. 2C:40-26(b). The motion was denied on August 21,

2014. Thereafter, defendant filed a motion to bar entry of his

motor vehicle abstract into evidence during trial, which was

denied on October 23, 2014.

On the same date the second motion was denied, defendant

pled guilty to the indictment and to the motor vehicle summons.

During the plea colloquy, defendant admitted to pleading guilty

to "the Maryland equivalent" of a DWI, that he had a prior DWI

offense in New Jersey, and that he knowingly operated a motor

2 A-2445-14T3
vehicle while his license was suspended in connection with the

Maryland DWI. On January 5, 2015, defendant was sentenced to

180 days in jail on the indictable charge with no eligibility of

parole, plus additional fines and penalties. He was sentenced

to a term of ten days in jail on the motor vehicle summons,

concurrent to the sentence on the indictable offense. His

driving privileges were suspended for one year consecutive to

any current suspension. The sentence was stayed pending appeal.

On appeal, defendant raises the following arguments:

POINT I

THE INDICTMENT SHOULD HAVE BEEN DISMISSED
SINCE DEFENDANT ONLY HAD ONE "CONVICTION"
FOR [VIOLATING N.J.S.A. 39:4-50] AND THE
STATUTE REQUIRES A SECOND VIOLATION OF
[N.J.S.A. 39:4-50].

POINT II

THE COURT SHOULD HAVE GRANTED THE MOTION TO
BAR THE HEARSAY [MOTOR VEHICLE COMMISSION]
ABSTRACT AT TRIAL CONTAINING HEARSAY FROM
MARYLAND. THE COURT IMPROPERLY GRANTED THE
STATE'S CROSS-MOTION TO ADMIT THE [MOTOR
VEHICLE COMMISSION] ABSTRACT AS A BUSINESS
RECORD WITHOUT WITNESS TESTIMONY FROM
MARYLAND.

We first address defendant's argument that the motion to

dismiss the indictment should have been granted because N.J.S.A.

2C:40-26(b) does not reference license suspensions from foreign

jurisdictions and, therefore, the statute should be interpreted

3 A-2445-14T3
to specifically require previous license suspensions pursuant to

N.J.S.A. 39:4-50.

"Whether an indictment should be dismissed or quashed lies

within the discretion of the trial court. Such discretion

should not be exercised except on 'the clearest and plainest

ground' and an indictment should stand 'unless it is palpably

defective.'" State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18

(1984) (quoting State v. Weleck, 10 N.J. 355, 364 (1952)

(citations omitted)). Further, "[a] trial court's exercise of

this discretionary power will not be disturbed on appeal 'unless

it has been clearly abused.'" State v. Warmbrun, 277 N.J.

Super. 51, 60 (App. Div. 1994), certif. denied, 140 N.J. 277

(1995) (quoting Weleck, supra, 10 N.J. at 364 (citations

omitted)). Here, the judge held as a matter of law that the

indictment did not suffer from an infirmity requiring its

dismissal. We agree.

At the outset, we note that N.J.S.A. 2C:40-26(b) does not

contain language that DWI convictions in other jurisdictions

qualify as convictions for the purpose of the statute. As such,

our decision turns upon the interpretation of the statute. In

order to ascertain the Legislature's intention, we first look to

the statutory language. DiProspero v. Penn, 183 N.J. 477, 492

(2005). In so doing, we are required to "ascribe to the

4 A-2445-14T3
statutory words their ordinary meaning and significance, and

read them in context with related provisions so as to give sense

to the legislation as a whole[.]" Ibid. (citations omitted).

"Ultimately, a court's role when analyzing a statute is to give

effect to the Legislature's intent as evidenced by the 'language

of [the] statute, the policy behind it, concepts of

reasonableness and legislative history.'" State v. Carrigan,

428 N.J. Super. 609, 618 (App. Div. 2012) (quoting Johnson Mach.

Co. v. Manville Sales Corp., 248 N.J. Super. 285, 304 (App. Div.

1991)), certif. denied, 213 N.J. 539 (2013).

Our Supreme Court addressed the appropriate manner of

statutory interpretation when the language is ambiguous or

appears contrary to legislative intent:

Courts cannot "rewrite a plainly-
written enactment of the Legislature nor
presume that the Legislature intended
something other than that expressed by way
of the plain language." O'Connell v. State,
171 N.J. 484, 488 (2002). If, however, the
Court determines that "a literal
interpretation would create a manifestly
absurd result, contrary to public policy,
the spirit of the law should control."
Turner v. First Union Nat'l Bank, 162 N.J.
75, 84 (1999). Furthermore, if a statute's
plain language is ambiguous or subject to
multiple interpretations, the Court "may
consider extrinsic evidence including
legislative history and committee reports."
[State v. Marquez, 202 N.J. 485, 500
(2010)].

[State v. Frye, 217 N.J. 566, 575 (2014).]

5 A-2445-14T3
 N.J.S.A. 2C:40-26(b) states in pertinent part:

It shall be a crime of the fourth
degree to operate a motor vehicle during the
period of license suspension in violation of
[N.J.S.A. 39:3-40], if the actor's license
was suspended or revoked for a second or
subsequent violation of [N.J.S.A. 39:4-50]
. . . . A person convicted of an offense
under this subsection shall be sentenced by
the court to a term of imprisonment.

When N.J.S.A. 2C:40-26 was enacted in 2009, L. 2009, c. 333,

§ 1, the Senate intended to lodge "criminal penalties for

persons whose [drivers'] licenses are suspended for certain

drunk driving offenses and who, while under suspension for those

offenses, unlawfully operate a motor vehicle." Senate Law and

Public Safety and Veterans' Affairs Committee, Statement to S.

2939 (November 23, 2009). In Carrigan, supra, 428 N.J. Super.

at 614, we noted that the penalty for violation of N.J.S.A.

2C:40-26(b) was "prompted, at least in part, by reports of fatal

or serious accidents that had been caused by recidivist

offenders with multiple prior DWI violations, who nevertheless

were driving with a suspended license."

The interstate Driver License Compact (DLC), N.J.S.A.

39:5D-1 to -14, enacted in 1966, L. 1966, c. 73, § 1, states:

It is the policy of each of the party
States to:

(1) Promote compliance with the
laws, ordinances, and
administrative rules and

6 A-2445-14T3
 regulations relating to the
operation of motor vehicles by
their operators in each of the
jurisdictions where such operators
drive motor vehicles.

(2) Make the reciprocal
recognition of licenses to drive
and eligibility therefor more just
and equitable by considering the
over-all compliance with motor
vehicle laws, ordinances and
administrative rules and
regulations as a condition
precedent to the continuance or
issuance of any license by reason
of which the licensee is
authorized or permitted to operate
a motor vehicle in any of the
party States.

[N.J.S.A. 39:5D-1(b).]

The DLC was enacted "to encourage the reciprocal recognition of

motor vehicle violations that occurred in other jurisdictions,

thereby increasing the probability that safety on highways would

improve overall." State v. Colley, 397 N.J. Super. 214, 219

(App. Div. 2007) (citing State v. Regan, 209 N.J. Super. 596,

602-04 (App. Div. 1986)).2

In accord with the DLC, following DWI convictions the

licensing authority in the "home [s]tate" (the state which has

the power to issue, suspend, or revoke the use of a driver's

license, N.J.S.A. 39:5D-2(b)), "shall give the same effect to

2
We note that Maryland is also a participant in the DLC. Md.
Code Ann., Transp., § 16-701 to -708 (LexisNexis 2016).

7 A-2445-14T3
the conduct reported, . . . as it would if such conduct had

occurred in the home [s]tate," and "shall apply the penalties of

the home [s]tate or of the [s]tate in which the violation

occurred[.]" N.J.S.A. 39:5D-4(a)(2).

While there has been no reported decision dealing with the

issue presented here, we are informed by this court's prior

decisions regarding the applicability of foreign DWI convictions

in different contexts. In Regan, supra, 209 N.J. Super. at 604,

we held that the Legislature intended an out-of-state conviction

for an offense equivalent to a DWI to be considered as a prior

offense for enhanced sentencing purposes on a subsequent DWI

conviction. After Regan was decided, the Legislature amended

N.J.S.A. 39:4-50(a)(3) to state that DWI convictions in foreign

states, regardless of their participation in the DLC, shall

constitute a prior conviction. L. 1997, c. 277, § 1.

Consistent with the DLC, N.J.S.A. 39:4-50(a)(3) now states in

pertinent part:

A conviction of a violation of a law of
a substantially similar nature in another
jurisdiction, regardless of whether that
jurisdiction is a signatory to the [DLC] . . .
shall constitute a prior conviction under
this subsection unless the defendant can
demonstrate by clear and convincing evidence
that the conviction in the other
jurisdiction was based exclusively upon a
violation of a proscribed blood alcohol
concentration of less than 0.08%.

8 A-2445-14T3
 In State v. Cromwell, 194 N.J. Super. 519, 520-22 (App.

Div. 1984), we held that the DLC requires New Jersey to "give

the same effect to the conduct reported . . . as it would if

such conduct had occurred in [New Jersey]" when considering

enhanced penalties under N.J.S.A. 39:3-40 due to previous DWI

convictions in foreign states.

Similarly in Colley, supra, 397 N.J. Super. at 218-20, we

applied the rationale set forth in Regan and Cromwell to

conclude the defendant was subject to enhanced penalties under

N.J.S.A. 39:3-40 due to a DWI conviction in another state. See

also Div. of Motor Vehicles v. Lawrence, 194 N.J. Super. 1, 2-3

(App. Div. 1983) (upholding defendant's license suspension

because N.J.S.A. 39:4-50 and New York's DWI statute were of a

"substantially similar nature" consistent with the DLC, and were

intended to "deter and punish drunk drivers.").

We agree with the Law Division judge that defendant was

subject to indictment pursuant to N.J.S.A. 2C:40-26(b) based

upon two prior DWI convictions, notwithstanding that one

conviction was in Maryland. Pursuant to N.J.S.A. 39:4-50(a)(3)

and N.J.S.A. 39:5D-4(a)(2), and consistent with the clear intent

9 A-2445-14T3
of the Legislature, we hold that defendant's conviction in

Maryland qualified as a DWI in New Jersey.3

In support of our holding, we note that New Jersey has a

"strong public policy against drunk driving." Frye, supra, 217

N.J. at 582. Consistent with that policy, we construe N.J.S.A.

2C:40-26(b) to contemplate convictions for DWI or its equivalent

in foreign jurisdictions — even those jurisdictions which are

not a party state in the DLC. We also adopt as analogous the

rationale enunciated in Regan and Cromwell that enhanced

penalties pursuant to N.J.S.A. 39:4-50 or N.J.S.A. 39:3-40 may

be triggered by a DWI conviction from another state.

Further, we have considered the policy for the enactment of

the DLC, i.e., to promote compliance of motor vehicle laws among

the party states, and the legislative intent for the enactment

of N.J.S.A. 2C:40-26, i.e., an effort to avoid "fatal or serious

accidents . . . caused by recidivist offenders with multiple

prior DWI violations, who nevertheless were driving with a

suspended license." Carrigan, supra, 428 N.J. Super. at 614.

When the above policy and legislative intent are considered with

this court's prior decisions in Regan, Cromwell, and Colley, we

3
We note parenthetically there is nothing in the record
suggesting defendant attempted to clearly and convincingly
demonstrate that his Maryland DWI was based exclusively upon a
violation of a proscribed blood alcohol concentration of less
than 0.08%. N.J.S.A. 39:4-50(a)(3).

10 A-2445-14T3
conclude our determination that convictions from other states

are included in N.J.S.A. 2C:40-26(b) is wholly consistent with

the "spirit of the law[,]" Frye, 217 N.J. at 575, and the

logical conclusion of its meaning.

We next address defendant's argument that the denial of his

motion to preclude the driver's abstract was erroneous. In

reaching our determination we conclude, as did the motion judge,

that the abstract was admissible as non-testimonial in nature,

and therefore, not in violation of the Confrontation Clause.

See Crawford v. Washington, 541 U.S. 36, 69-69, 124 S. Ct. 1354,

1374, 158 L. Ed. 2d 177, 203 (2004). Here, the driver's

abstract and attached notice of suspension were not created for

the sole purpose of trial or as evidence against a defendant,

unlike the laboratory certificates discussed in Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 310, 129 S. Ct. 2527, 2532, 174 L.

Ed. 2d 314, 321 (2009).

We also conclude that the abstract could properly be

admitted as a business record pursuant to N.J.R.E. 803(c)(6) and

(8). In State v. Zalta, 217 N.J. Super. 209, 214 (App. Div.

1987), we affirmed a conviction for violation of N.J.S.A. 39:3-

40 based upon the admission of a copy of defendant's driving

record. See also State v. Pitcher, 379 N.J. Super. 308, 319

(App. Div. 2005), certif. denied, 186 N.J. 242 (2006) (affirming

11 A-2445-14T3
DWI conviction where arresting officer relied on defendant's

driving record as a basis for a motor vehicle stop and stating

"[Division of Motor Vehicle] records of drivers' license

suspensions are deemed sufficiently reliable to be admissible as

prima facie evidence of the fact.") (citing N.J.R.E. 803(c)(8);

Zalta, supra, 217 N.J. Super. at 214).

In sum, the judge's denial of defendant's Crawford

challenge and the admission of the driver's abstract and notice

of suspension were grounded in controlling law, and did not

constitute an abuse of discretion. See, e.g., Colley, supra,

397 N.J. Super. at 222 (citing Benevenga v. Digregorio, 325 N.J.

Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79

(2000)).

Predicated upon our decision, the stay of the sentence is

vacated.

Affirmed.

12 A-2445-14T3