NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0923-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS BURNS a/k/a THOMAS M.
BURNS, and TOM BURNS,
Defendant-Appellant.
_______________________________
Telephonically argued May 23, 2017 –
Decided June 12, 2017
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Indictment No.
14-10-878.
A. Harold Kokes argued the cause for
appellant.
Gretchen A. Pickering, Assistant Prosecutor,
argued the cause for respondent (Robert L.
Taylor, Cape May County Prosecutor, attorney;
Ms. Pickering, of counsel and on the brief).
PER CURIAM
Defendant Thomas Burns appeals from his conviction for
violating N.J.S.A. 2C:40-26(b) by driving during a second or
subsequent license suspension for driving while intoxicated (DWI).
We affirm.
Defendant is a Pennsylvania resident whose driver's license
was issued by the Commonwealth of Pennsylvania. On June 5, 2014,
defendant was stopped by police while driving his vehicle in Ocean
City and issued summonses for driving with a suspended license in
violation of N.J.S.A. 39:3-40, and driving without an interlock
device in violation of N.J.S.A. 39:4-50.19.
On July 31, 2014, the police discovered that defendant's
driving privileges in New Jersey were suspended for ten years due
to driving while intoxicated (DWI) contrary to N.J.S.A. 39:4-50.
The police also learned defendant had multiple prior convictions
and license suspensions for driving under the influence of alcohol
(DUI) in Pennsylvania. As a result, defendant was charged with
violating N.J.S.A. 2C:40-26(b).
Defendant was indicted by a Cape May County Grand Jury for
fourth-degree criminal trespass in violation of N.J.S.A. 2C:18-
3(a) (count one), and fourth-degree operating a motor vehicle
during a second or subsequent suspension stemming from a DWI, in
violation of N.J.S.A. 2C:40-26(b) (count two). Defendant moved
to dismiss count two of the indictment, arguing that his prior DUI
convictions in Pennsylvania did not qualify as predicate DWI
2 A-0923-15T3
convictions under N.J.S.A. 2C:40-26(b). Judge John C. Porto denied
the motion on March 13, 2015.
On June 19, 2015, defendant entered a conditional plea of
guilty to fourth-degree operating a motor vehicle during a second
or subsequent suspension resulting from a DWI, in violation of
N.J.S.A. 2C:40-26(b), in exchange for a sentencing recommendation
of the mandatory minimum 180-day jail term without parole,
applicable fines and penalties, and dismissal of count one.
Defendant also preserved his right to appeal the denial of his
motion to dismiss. Defendant stipulates that on June 5, 2014 he
was driving a motor vehicle while under suspension for a DWI in
New Jersey and multiple DUI convictions in Pennsylvania.
On September 18, 2015, Judge Porto sentenced defendant to the
mandatory 180 days in jail with no eligibility for parole, and
ordered to pay appropriate fines and penalties. The judge
dismissed the fourth-degree criminal trespass count pursuant to
the terms of the plea agreement. The judge also dismissed the
motor vehicle summonses without prejudice. Defendant was released
on bail pending this appeal.
On appeal, defendant raises the following arguments:
POINT ONE
ACCORDING TO THE STATE'S PROOF, APPELLANT HAD
ONLY ONE (1) N.J.S.A. 39:4-50 CONVICTION ON
3 A-0923-15T3
THE DAY HE OPERATED A MOTOR VEHICLE IN OCEAN
CITY, CAPE MAY COUNTY, NEW JERSEY.
POINT TWO
THE TRANSCRIPT OF THE GRAND JURY PROCEEDINGS
REVEALS THAT THE EVIDENCE PRESENTED TO THE
GRAND JURY WAS LEGALLY INSUFFICENT AND
INCORRECT.
POINT THREE
THE TRIAL COURT ERRED BY DENYING APPELLANT'S
MOTION TO DISMISS BASED ON A STRICT
CONSTRUCTION AND PLAIN READING OF N.J.S.A.
2C:40-26(b). FURTHER, APPELLANT HAD NO NOTICE
THAT HE WOULD BE LIABLE FOR A FOURTH (4TH)
DEGREE CRIME.
"When an appellate court reviews a trial court's analysis of
a legal issue, it does not owe any special deference to the trial
court's legal interpretation." State v. Schubert, 212 N.J. 295,
303-04 (2012). "'[A]ppellate review of legal determinations is
plenary.'" Id. at 304 (quoting State v. Handy, 206 N.J. 39, 45
(2011). The issues presented are legal in nature, and thus our
review is plenary.
Defendant argues that his 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 to require the
previous license suspensions to be for convictions of N.J.S.A.
39:40-50, rather than another state's substantially similar DWI
4 A-0923-15T3
statute. Defendant further argues that the evidence provided to
the Grand Jury was "legally insufficient and incorrect."
Our Supreme Court "has recognized the grand jury's
independence and has expressed a reluctance to intervene in the
indictment process." State v. Hogan, 144 N.J. 216, 228 (1996).
"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, 18-19 (1984) (quoting State
v. Weleck, 10 N.J. 355, 364 (1952)). "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) (quoting Weleck, supra, 10 N.J. at 364
(citations omitted)), certif. denied, 140 N.J. 277 (1995). Here,
Judge Porto held as a matter of law that the indictment did not
suffer from an infirmity requiring its dismissal. We agree.
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 to a term of
imprisonment.
5 A-0923-15T3
In State v. Luzhak, 445 N.J. Super. 241, 244 (App. Div. 2016),
we noted 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." Nonetheless, we determined that the
Legislature's intent as evidenced by the language of the statute,
the policy behind it, and legislative history was to include DWI
convictions from foreign jurisdictions as predicate offenses under
N.J.S.A. 2C:40-26(b). There, the "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." Id. at 247-48. We reached that conclusion based on
our holding that the "defendant's conviction in Maryland qualified
as a DWI in New Jersey." Id. at 248. We also adopted the rationale
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."
Ibid.
The same reasoning applies with equal force in this matter.
We hold that defendant's prior DUI convictions in Pennsylvania
qualify as predicate DWI convictions in New Jersey within the
meaning of N.J.S.A. 2C:40-26(b).
We next address defendant's argument that the evidence
presented to the Grand Jury was legally insufficient and incorrect.
6 A-0923-15T3
Defendant claims that the State misinformed the Grand Jury by
stating that defendant "knowingly did operate a motor vehicle
during a period of license suspension in violation of R.S. 39:3-
40, while his license was suspended for a second or subsequent
violation of R.S. 39:4-50, contrary to the provisions of N.J.S.A.
2C:40-26(b)." We disagree. The quoted language merely recited
the offense alleged in count two. The factual basis for count two
was provided by the following testimony of Sergeant John Mazzuca:
Q: While you were conducting that
investigation, did you also ask the Defendant
for his driver's credentials?
A: Yes, I did.
Q: Did he advise you or did you learn at that
time that he was a suspended driver?
A: I did.
Q: And did you learn that he was suspended
because he had a DUI?
A: Yes.
Q: And that is a violation of 39:4-50.
A: That's correct.
Q: He had one as recently as 2014.
A: Yes.
Q: Did you then conduct a further
investigation and find that on at least two
to three occasions previous to 2014, as
recently as 2006, he had been convicted in the
7 A-0923-15T3
State of Pennsylvania for driving while under
the influence?
A: Yes, he was.
Sergeant Mazzuca's testimony did not misinform or mislead the
grand jurors. The evidence presented was not legally insufficient
or incorrect. In any event, defendant does not deny that he was
operating a motor vehicle while his license was suspended or
revoked for a violation of N.J.S.A. 39:40-50 and a second or
subsequent violation of Pennsylvania's DUI statute. Nor does he
argue prosecutorial misconduct during the grand jury presentment.
Indictments are presumed valid. State v. Schenkolewski, 301
N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77
(1997). "As long as an indictment alleges all the essential facts
of the crime, the charge is deemed sufficiently stated." Ibid.
"[T]he indictment should not be dismissed unless its insufficiency
is 'palpable.'" N.J. Trade Ass'n, supra, 96 N.J. at 19. Applying
these principles, we find that the evidence before the grand jury
presented a prima facie case of operating a motor vehicle while
suspended or revoked for a second or subsequent DWI violation.
The evidence was not "legally insufficient" or "incorrect."
Finally, we address defendant's argument that he should not
be convicted of violating N.J.S.A. 2C:40-26(b) because he had no
actual or constructive notice that his Pennsylvania DUI
8 A-0923-15T3
convictions would serve as predicate offenses under N.J.S.A.
2C:40-26(b), thereby subjecting him to conviction of a fourth-
degree crime. We disagree.
The Driver License Compact (DLC), N.J.S.A. 39:5D-1 to -14,
includes reciprocity for DWI convictions. Luzhak, supra, 445 N.J.
Super. at 246. Pennsylvania is a party state to the DLC. Scott
v. DOT, 567 Pa. 631, 633, 790 A.2d 291 (2002). Pennsylvania's DUI
statute mirrors Article IV(a)(2) of the DLC, "which proscribes
driving under the influence of alcohol or drugs to a degree that
renders the driver 'incapable of safely driving a motor vehicle.'"
Id. at 637-38. A conviction under N.J.S.A. 39:4-50 is of a
"substantially similar nature" to the DLC's requirement that a
driver be "incapable of safely driving a motor vehicle." See id.
at 643-44; N.J.S.A. 39:5D-1(b), art. IV(a)(2), (c). The elements
of Pennsylvania's DUI statute, 75 Pa.C.S. § 3802 ("incapable of
safely driving"), are also of a "substantially similar nature" to
Article IV(a)(2) of the DLC ("incapable of driving safely") because
both provisions focus upon individuals who are incapable of driving
safely. Scott, supra, 567 Pa. at 638 (citing Petrovik v.
Commonwealth, Dep't of Transp., 559 Pa. 614, 621, 741 A.2d 1264,
1268 (1999) (analyzing predecessor DUI statute, 75 Pa.C.S. §
3731(a)(1))). Moreover, the elements of Pennsylvania's DUI
9 A-0923-15T3
statute, 75 Pa.C.S. § 3802, are substantially similar to N.J.S.A.
39:4-50(a).
We further note that repeat offenders have no constitutional
right to written or oral notice of enhanced potential sentences
in the future. State v. Zeikel, 423 N.J. Super. 34, 43-44 (App.
Div. 2011); State v. Nicolai, 287 N.J. Super. 528, 532 (App. Div.
1996). Applying these principles, we hold that defendant's due
process rights were not violated.
Judge Porto properly denied defendant's motion to dismiss the
indictment.
Affirmed.
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