STATE OF NEW JERSEY VS. BENIGNO RIVERA(15-09-1143, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-5579-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENIGNO RIVERA,

Defendant-Appellant.
___________________________________

Submitted September 19, 2017 – Decided October 18, 2017

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
15-09-1143.

Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on the
brief).

Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Defendant Benigno Rivera appeals from his conviction for

fourth-degree operating a motor vehicle during a period of license
suspension resulting from a second or subsequent offense of driving

while intoxicated (DWI), N.J.S.A. 2C:40-26(b). Defendant was

convicted after a jury trial and was sentenced to 300 days in

prison, with a mandatory six-month period of parole ineligibility.

Defendant was also convicted by the court of driving with a

suspended license, N.J.S.A. 39:3-40. He received a concurrent

ten-day term for that conviction and a $1000 fine.

Before us, defendant presents the following arguments:

POINT I

THE COURT ERRED IN FAILING TO PROVIDE A
CURATIVE INSTRUCTION WHEN SERGEANT HOPPE
TESTIFIED THAT HE HAD HAD "TWO PREVIOUS
DEALINGS" WITH DEFENDANT, SUGGESTING TO THE
JURORS THAT THE DEFENDANT HAD A PRIOR CRIMINAL
RECORD. (Not Raised Below)

POINT II

THE COURT ERRED IN FAILING TO PROVIDE A
LIMITING INSTRUCTION AFTER THE STATE
INTRODUCED EVIDENCE THAT DEFENDANT, AT A PRIOR
COURT HEARING, WAS PLACED ON NOTICE OF THE
SENTENCE HE WAS FACING IF HE DROVE AGAIN WHILE
ON THE REVOKED LIST, BECAUSE THE SENTENCE WAS
IRRELEVANT TO THE JURY'S FUNCTION AND
DEFENDANT'S FAILURE TO COMPLY WITH THE JUDGE'S
WARNING SUGGESTED THAT HE HAD CONTEMPT FOR THE
LAW. (Not Raised Below)

POINT III

THE COURT ERRED IN FAILING TO MERGE THE MOTOR-
VEHICLE OFFENSE OF DRIVING WHILE SUSPENDED
INTO THE INDICTABLE CONVICTION FOR DRIVING

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 WHILE SUSPENDED FOR A SECOND OR SUBSEQUENT
VIOLATION OF N.J.S.A. 39:4-50.

After reviewing the record in light of the contentions

advanced on appeal, we affirm defendant's N.J.S.A. 2C:40-26(b)

conviction and sentence, but remand for merger of defendant's

N.J.S.A. 39:3-40 conviction.

I.

We briefly summarize the relevant facts. On December 15,

2014, Sgt. Michael Hoppe of the South Plainfield Police Department,

while on patrol in a marked vehicle, witnessed defendant driving

a 2003 Saturn. Sgt. Hoppe recognized defendant because of "two

previous dealings" and because defendant lived across the street

from the police station. From the previous dealings, Sgt. Hoppe

knew defendant did not have a valid driver's license. Sgt. Hoppe

contacted headquarters and verified defendant's license was

suspended.

Sgt. Hoppe began to follow defendant, who voluntarily pulled

over on a side street. Defendant then got out of his vehicle and

approached Sgt. Hoppe's patrol car. At that point, Sgt. Hoppe

inquired, "Can you get me . . . registration and insurance? You

can't drive." Defendant responded, "No, I can't." Sgt. Hoppe

informed defendant he would receive a ticket in the mail for

driving while suspended and told him, "Don't drive anymore. Park

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it over here." When Sgt. Hoppe later discovered defendant's

license was suspended for a second or subsequent DWI conviction,

he charged defendant with N.J.S.A. 2C:40-26(b).

In addition to the testimony of Sgt. Hoppe, the State

presented testimony from a supervisor with the New Jersey Motor

Vehicle Commission. The supervisor explained that defendant's

driving abstract indicated four previous license suspensions for

DWI. The most recent suspension was for ten years, starting on

January 9, 2008. During defendant's sentencing for this last DWI,

the judge suspended defendant's license and then informed him of

the enhanced penalties for driving during a period of suspension

resulting from DWI convictions. In addition, defendant signed a

document acknowledging he received both written and oral notice

of the consequences of driving while on the revoked list if

suspended for DWI convictions. At the conclusion of the State's

case, defendant rested without presenting any evidence or

witnesses.

II.

Defendant raised the arguments in Points I and II for the

first time on appeal; therefore, we review them under the plain

error standard. R. 2:10-2. "Plain error is 'error possessing a

clear capacity to bring about an unjust result and which

substantially prejudiced the defendant's fundamental right to have

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the jury fairly evaluate the merits of his [or her] defense.'"

State v. Timmendequas, 161 N.J. 515, 576-77 (1999) (quoting State

v. Irving, 114 N.J. 427, 444 (1989)), cert. denied, 534 U.S. 858,

122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). A reversal based on

plain error requires us to find the error likely led to an unjust

result that is "sufficient to raise a reasonable doubt as to

whether the error led the jury to a result it otherwise might not

have reached." State v. Williams, 168 N.J. 323, 336 (2001)

(quoting State v. Macon, 57 N.J. 325, 336 (1971)).

We must consider any such error "in light of 'the totality

of the entire charge, not in isolation.'" State v. Burns, 192

N.J. 312, 341 (2007) (quoting State v. Chapland, 187 N.J. 275, 289

(2006)). Moreover, "any alleged error also must be evaluated in

light 'of the overall strength of the State's case.'" Ibid.

(quoting Chapland, supra, 187 N.J. at 289).

In Point I, defendant contends the trial judge erred by

failing to provide a limiting instruction when Sgt. Hoppe testified

he had "two previous dealings" with defendant. Defendant argues

a limiting instruction was necessary because the testimony

suggests defendant had a prior criminal record.

In Point II, defendant contends the trial judge erred by

failing to provide a limiting instruction when the State introduced

evidence that defendant, at a prior hearing, received notice of

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the penalties for driving while on the revoked list. Defendant

argues a limiting instruction was necessary because the evidence

suggested defendant's failure to comply with the judge's warning

not to drive implied he had contempt for the law.

While limiting instructions may have been appropriate in both

instances, we conclude their absence did not affect the outcome

of the case in light of the overwhelming evidence of defendant's

guilt. In terms of Sgt. Hoppe's testimony, when he testified he

had "two previous dealings" with defendant, he immediately

followed that statement with testimony indicating he knew

defendant from "just seeing him around town" and defendant lives

across the street from headquarters. Sgt. Hoppe did not state

defendant participated in any criminal activity.

In terms of the evidence from defendant's prior sentencing

hearing, defense counsel prompted the State to present this

evidence by pressing the issue of whether defendant knew he was

not permitted to drive. Defense counsel attempted to imply

defendant never saw his driver's abstract and therefore was unaware

of the suspension. The State reasonably responded by offering an

acknowledgement signed by defendant stating he was aware of the

consequences of driving with a suspended license.

In addition, defendant failed to object to either Sgt. Hoppe's

testimony or the prior sentencing evidence when given. As part

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of the jury charge, the trial judge did instruct the jury to

"consider the evidence for only those purposes for which it's been

admitted," and not to use defendant's prior driving while

intoxicated violations to "decide the defendant has a tendency to

commit crimes or that he is a bad person." Defendant did not

object to the jury charges or ask for additional limiting

instructions.

Furthermore, the evidence against defendant was overwhelming.

Defendant admitted he did not have a valid driver's license after

Sgt. Hoppe witnessed him driving. Defendant's driving abstract

listed four prior DWI convictions and indicated defendant's

license was suspended at the time Hoppe witnessed him driving.

Defendant offered no evidence to the contrary. Defendant was

clearly guilty of operating a motor vehicle during a period of

license suspension following his second or subsequent violation

of DWI. Instructing the jury not to infer prior criminal activity

from Sgt. Hoppe's testimony, or contempt for the law from

defendant's failure to heed the judge's warning not to drive,

would not have changed the verdict.

Finally, we address defendant's challenge to his sentence due

to lack of merger. We agree with defendant's argument in Point

III, as does the State, that the judge should have merged

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defendant's motor vehicle violation with his indictable

conviction.

N.J.S.A. 2C:1-8(a)(1) provides for merger of more than one

offense; however, "N.J.S.A. 2C:1-8 does not apply to motor vehicle

violations, only criminal offenses." State v. Frank, 445 N.J.

Super. 98, 108 (App. Div. 2016). Nevertheless, "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." Ibid.

Here, defendant was convicted of both driving while suspended

under N.J.S.A. 39:3-40, a motor vehicle violation, and driving

while suspended for a second or subsequent DWI under N.J.S.A.

2C:40-26(b), an indictable offense. The elements of the motor

vehicle violation correspond to the elements of the indictable

offense, making merger appropriate.

We therefore affirm the conviction under N.J.S.A. 2C:40-

26(b), but remand for resentencing in light of the need for merger

of the motor vehicle violation.

Affirmed and remanded. We do not retain jurisdiction.

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