NOT FOR PUBLICATION WITHOUT THE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.
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