STATE OF NEW JERSEY VS. THOMAS BURNS(14-10-0878, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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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