NOT FOR PUBLICATION WITHOUT THE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-4541-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMMA PRESTON,
Defendant-Appellant.
_______________________________________
Submitted May 22, 2018 – Decided July 16, 2018
Before Judges Mawla and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Municipal Appeal
No. 6194.
Richard J. Kaplow attorney for appellant.
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Izabella
M. Wozniak, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Emma Preston appeals from an order of the Law
Division denying a motion to vacate her guilty plea to two motor
vehicle offenses. We affirm.
I.
On July 12, 2012, defendant was operating a motor vehicle
while intoxicated in Westfield. She lost control of the car and
struck a tree. Officer Kevin J. O'Keefe was dispatched to the
scene where he observed a contusion on defendant's forearm and a
small laceration to her eyelid. Defendant declined medical
treatment. While speaking with defendant, Officer O'Keefe
detected a strong odor of alcohol emanating from her, and noticed
other indicia of intoxication. Defendant failed a field sobriety
test. Her blood alcohol level tested above the legal limit.
While investigating the accident, Office O'Keefe spoke with
defendant's passenger, Christopher Weber. The officer detected a
strong odor of alcohol emanating from Weber, who admitted he had
been drinking. Although an emergency medical technician was on
scene, Weber denied medical treatment and left on his own accord.
On July 12, 2012, defendant was issued summonses charging her
with careless driving, N.J.S.A. 39:4-97, and driving while
intoxicated (DWI), N.J.S.A. 39:4-50. On October 18, 2012,
defendant appeared in the Fanwood Municipal Court, where the matter
had been transferred because the judge in Westfield had previously
2 A-4541-16T3
represented Weber in a civil matter. Pursuant to a negotiated
plea agreement, defendant pled guilty to both offenses. Prior to
the plea allocution, defendant's attorney had the following
exchange with the court:
THE COURT: Was Mr. Weber injured in the
incident?
MR. KAPLOW: I don't know. He went out and
hired –
THE COURT: Do you know the attorney of
record?
MR. KAPLOW: He went out and hired a lawyer
and I believe that there's a
claim that he's injured. I
don't know the extent of his
injuries is (sic) really --
Defendant's attorney also stated, "[t]hank goodness . . . that
there doesn't appear to be any serious injury . . . from what I
know." The judge advised defendant that had Weber suffered serious
bodily injuries she would be in Superior Court facing criminal
charges.1
In her plea allocution, defendant admitted that she began
drinking alcohol approximately an hour and a half before the crash,
consuming almost an entire bottle of wine. She admitted to driving
1
Defendant's counsel argues that at the 2012 municipal court
proceedings he gave the court a June 2, 2016 letter from an
attorney stating that he represented Weber with respect to serious
bodily injuries incurred in the accident. However, the letter is
dated almost four years after defendant's guilty plea.
3 A-4541-16T3
carelessly while intoxicated and driving her car into a tree. The
court suspended defendant's driving privileges for three months,
imposed mandatory fines and penalties, and ordered her to complete
twelve hours at the Intoxicated Driver Resource Center.
On July 30, 2015, defendant incurred a second DWI conviction.
On March 24, 2016, a grand jury indicted defendant on charges
unrelated to the July 12, 2012 accident. She was charged with
fourth-degree driving while suspended for a second DWI conviction,
N.J.S.A. 2C:40-26(b), and third-degree assault by auto, N.J.S.A.
2C:12-1(c)(3)(a). Defendant also received a summons for DWI,
N.J.S.A. 39:4-50. Those charges are pending.
On January 1, 2017, a grand jury indicted defendant on charges
unrelated to the July 12, 2012 accident. Defendant was charged
with fourth-degree driving while suspended for a second DWI
conviction, N.J.S.A. 2C:40-26(b), third-degree representing self
as another, N.J.S.A. 2C:21-17(a)(4), and fourth-degree obstructing
the administration of law, N.J.S.A. 2C:29-1(a). Defendant was
also issued a disorderly person complaint charging her with
hindering apprehension or prosecution by giving false information,
N.J.S.A. 2C:29-3(b)(4). Those charges are pending.
On March 2, 2017, defendant appeared in municipal court on a
motion to vacate her 2012 guilty plea. The validity of the 2012
conviction may be relevant to defendant's pending charges for
4 A-4541-16T3
driving while suspended for a second DWI conviction, N.J.S.A.
2C:40-26(b), and will determine whether the 2016 DWI charge, if
proven, will be defendant's second or third DWI conviction.
Defendant argued that the municipal court lacked jurisdiction
to accept her guilty plea due to N.J.S.A. 2B:12-17.2(a). That
statute provides
[i]n any matter concerning Title 39 of the
Revised Statutes where death or serious bodily
injury has occurred, regardless of whether the
death or serious bodily injury is an element
of the offense or violation, the Superior
Court shall have exclusive jurisdiction over
the offense or violation until such time that
the Superior Court transfers the matter to the
municipal court.
[N.J.S.A. 2B:12-17.2(a).]
Defendant argued that Weber was seriously injured in the July 12,
2012 accident, and that the matter was never transferred to the
Superior Court pursuant to N.J.S.A. 2B:12-17.2(a).
In support of her motion, defendant produced medical records
indicating that Weber went to a hospital emergency room on August
24, 2012, approximately six weeks after the accident, complaining
of abdominal pain. According to the records, Weber reported that
the pain began two to three weeks earlier, but that he believed
the symptoms "may be related" to the accident. The records
indicate that the "mechanism of injury" to Weber is "unknown." A
CAT scan administered that day revealed a subcapsular hematoma on
5 A-4541-16T3
Weber's spleen, requiring an immediate splenectomy. Postoperative
examination records indicate that Weber told his physician "that
he had a CAT scan at some point after the accident and that it was
negative." No medical provider causally related Weber's spleen
laceration to the July 12, 2012 accident.2
The State opposed defendant's motion, arguing that at the
time of the accident there was no indication that defendant or
Weber sustained serious bodily injury. Thus, there was no reason
for the Westfield police to refer the matter to the prosecutor's
office for investigation. In addition, the State argued that
because defendant was never charged with an indictable offense,
the Superior Court never had jurisdiction over this matter. The
State also argued that the purpose of N.J.S.A. 2B:12-17.2(a) is
to prevent a defendant from avoiding prosecution on criminal
charges arising from a motor vehicle accident by first resolving
related Title 39 violations in municipal court and triggering
double jeopardy protections. The State argued the statute's
purpose is not contravened because defendant was never charged
2
Notably, the records indicate that Weber twice denied a history
of alcohol use. This contradicts his admission at the scene of
the accident that he had consumed alcohol, calling into question
the veracity of his statements to medical personnel. Defendant's
brief states that she produced the medical records to the municipal
court in 2012. This appears to be a typographical error, as the
transcript of the 2012 plea allocution does not reference Weber's
medical records, which were presented to the court in 2017.
6 A-4541-16T3
with an indictable offense, and no such charges were or are
contemplated.
The municipal court denied defendant's motion. The court
found that the medical records do not prove that Weber suffered
serious bodily injury in the accident. To reach this conclusion,
the court relied on the six-week gap between the accident and
Weber's emergency room treatment, the record notation that Weber
had a CAT scan after the accident that was negative, and the
inability to take testimony from Weber, who died before the hearing
from causes unrelated to the accident. In addition, the municipal
court judge agreed that N.J.S.A. 2B:12-17.2(a) is intended to
prevent a defendant from avoiding criminal prosecution for
injuries caused by a motor vehicle accident by resolving Title 39
charges in municipal court before resolution of criminal charges
in Superior Court, circumstances not present here.
Defendant appealed to the Law Division, where on June 9,
2017, Judge John M. Deitch issued a comprehensive written opinion
rejecting her claims. The trial court treated defendant's motion
as an application for post-conviction relief pursuant to Rule
3:22-2(b) and Rule 7:10-2(c)(2). The court determined that she
did not establish that she was entitled to an evidentiary hearing.
Finding the statute ambiguous with respect to whether the
Superior Court obtains jurisdiction in the circumstances presented
7 A-4541-16T3
here, the trial court examined the statute's legislative history
to discern its intent. The court noted that N.J.S.A. 2B:12-17.2(a)
was enacted in response to the holding in State v. Dively, 92 N.J.
573 (1983), and the facts that gave rise to In re Seelig, 180 N.J
234 (2004). In Dively, the defendant was driving while intoxicated
when his careless driving resulted in the death of another driver.
92 N.J. at 576. He was issued five municipal court summonses,
including one for DWI. When the municipal court proceedings
commenced, the parties and the court were aware of the death
resulting from the accident. Ibid. The defendant entered a guilty
plea to DWI, and other Title 39 violations. Id. at 576-77. A
grand jury later indicted the defendant for causing death by auto,
N.J.S.A. 2A:113-9 (repealed), based on the same accident that was
the subject of the municipal court summonses. Id. at 577.
Although the defendant entered a guilty plea to the criminal
charge in Superior Court, the next day, the United States Supreme
Court issued its decision in Illinois v. Vitale, 447 U.S. 410
(1980). In that case, Vitale carelessly drove his car and struck
two children who died from their injuries. Id. at 411. After the
driver was convicted of a traffic offense related to the accident,
he was indicted for involuntary manslaughter for the death of the
two children. Id. at 412-13. Ultimately, the Supreme Court held
that if the prosecution of Vitale on the criminal charges required
8 A-4541-16T3
the same proofs that were necessary to establish the motor vehicle
violation, Vitale's prosecution on the criminal charges would be
barred by the Double Jeopardy Clause of the United States
Constitution. Id. at 421. The matter was remanded for a
determination of whether Illinois could prove involuntary
manslaughter without proving the facts supporting the motor
vehicle offense of which Vitale was convicted. Ibid.
Believing that the decision in Vitale barred his conviction
on the death by auto charge on double jeopardy grounds, the
defendant in Dively moved to withdraw his guilty plea. Dively,
92 N.J. at 577. The prosecutor conceded that the same evidence
that would have been offered to prove the municipal court charges
would be necessary to prove the criminal charge against the
defendant. The Superior Court permitted the defendant to enter a
guilty plea conditioned on his right to raise the double jeopardy
argument, which the trial court denied, on appeal. Ibid.
Our Supreme Court held that the motor vehicle violations of
which Dively was convicted and the criminal offense for which he
was indicted were based on the same facts. Thus, the Court
concluded, in order to prove the criminal charge the State would
rely on the same evidence and alleged acts that underlie the motor
vehicle offenses, triggering double jeopardy protections. Id. at
9 A-4541-16T3
582-83. In order to prevent this situation from arising in the
future, the Court reiterated its prior directive that
where a complaint is filed in the municipal
court and the magistrate has reason to believe
that the factual situation out of which the
complaint arose may also involve an indictable
offense, the matter should be referred to the
county prosecutor.
[Id. at 589-90.]
In addition, the Court issued a "directive to all municipal
court judges to withhold actions on drunk driving incidents
involving personal injuries until clearance to proceed has been
obtained from the county prosecutor." Id. at 590. This was
followed by a May 3, 1983 Administrative Directive that provides
that when a complaint is issued in the municipal court and the
judge or administrator believes the factual situation also
involves an indictable offense, the matter should be referred to
the prosecutor. Seelig, 180 N.J. 234.
In Seelig, a motorist collided with a disabled vehicle,
killing two. Id. at 237-38. The motorist was charged with two
counts of aggravated manslaughter, and death by auto. He was
arraigned and released on bail. Police thereafter issued three
summonses for motor vehicle violations arising from the accident.
Id. at 238. With the criminal charges pending, the motorist
appeared in municipal court and entered a guilty plea to the motor
10 A-4541-16T3
vehicle violations. Although the judge asked if anyone was injured
in the accident, he did not follow up when the motorist's counsel
responded affirmatively. Id. at 239. The entry of the pleas
raised "double jeopardy issues in connection with prosecution on
the charged indictable offenses." Id. at 240. The State's motion
to vacate the guilty pleas because of deficiencies in the municipal
court proceeding was granted. Id. at 241.
After considering these decisions, Judge Deitch held that the
purpose of N.J.S.A. 2B:12-17.2(a) is to prevent defendants from
using the holding in Dively to preclude criminal prosecution by
resolving traffic violations in municipal court before resolution
of indictable offenses arising from a traffic accident. The judge
also held that the "stated goal of the statute is to provide for
the disposition of these matters in one court and avoid the
municipal and Superior Court working at odds with each other."
The trial court found that defendant was no longer in danger
of being exposed to liability in two courts, given the State's
declaration that it has no intention of prosecuting her on criminal
charges arising from the July 12, 2012 accident. In addition, the
court found that defendant was in much the same position as the
defendant in Seelig, seeking to use double jeopardy precedents to
avoid penalties for her actions. Were her guilty plea to be
vacated, defendant would not face criminal charges, and the State
11 A-4541-16T3
would have the difficult task of proving at a new trial motor
vehicle infractions alleged to have taken place six years prior.
The trial court also found that defendant's arguments failed
under the doctrine of judicial estoppel. Under the doctrine, a
party is barred "from arguing a position inconsistent with one
previously asserted" in a judicial proceeding. State v. Gonzalez,
142 N.J. 618, 632 (1995) (quotations and citations omitted). "To
be estopped a party must have convinced the court to accept its
position in the earlier litigation," Kimball Int'l, Inc. v.
Northfield Metal Prods., 334 N.J. Super. 596, 606-07 (App. Div.
2000) (quotations omitted), and "a party's inconsistent behavior
will otherwise result in a miscarriage of justice," State v.
Jenkins, 178 N.J. 347, 359 (2004) (quotations and citations
omitted).
The trial court noted that at the plea allocution defendant's
counsel advised the municipal court that there appeared to be no
serious injury. This representation was accepted by the court,
and benefitted defendant because the municipal court did not stay
the matter to permit an investigation by the prosecutor's office
into possible criminal charges against defendant. The trial court
also noted that the municipal court judge advised defendant that
if there had been serious bodily injury in the accident, the matter
12 A-4541-16T3
would be in Superior Court. On June 9, 2017, Judge Deitch entered
an Order denying defendant's application.
This appeal followed. On appeal, defendant raises the
following argument:
THE TRIAL COURT ERRED IN ITS INTERPRETATION
AND APPLICATION OF N.J.S.A. 2B:12-17.2
Having reviewed the record in light of defendant's arguments
and the law, we conclude that defendant's arguments are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We affirm substantially for the reasons expressed
by Judge Deitch in his thorough and well-reasoned written decision.
Affirmed.
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