STATE OF NEW JERSEY v. JEFFREY RUST (6262, UNION 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NOT FOR PUBLICATION WITHOUT THE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-0229-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY RUST,

Defendant-Appellant.
_________________________

Argued January 5, 2022 – Decided January 20, 2022

Before Judges Mayer and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Municipal Docket No. 6262.

James A. Abate argued the cause for appellant.

Milton S. Liebowitz, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (William A. Daniel, Union County
Prosecutor, attorney; Milton S. Leibowitz, of counsel
and on the brief).

PER CURIAM
 Defendant Jeffrey Rust appeals from an August 25, 2020 order of the

Superior Court, Law Division, finding him guilty of driving while intoxicated

(DWI), N.J.S.A. 39:4-50. We affirm.

The facts are undisputed. In accordance with a plea agreement in

municipal court, defendant admitted operating a motor vehicle within Winfield

Township while under the influence of alcohol on April 20, 2019. The

municipal court judge sentenced defendant to a two-year suspension of his

driving privileges, forty-eight hours at the Intoxicated Driver's Resource Center

(IDRC), thirty-days community service, and payment of monetary fines and

other assessments. The municipal court judge granted a stay of the sentence

pending defendant's appeal to the Superior Court, Law Division.

On appeal to the Law Division judge, defendant argued the new

sentencing provisions under N.J.S.A. 39:4-50 should be applied retroactively so

he could be sentenced to installation of an ignition interlock device rather than

suspension of his driver's license. Defendant also argued "an offense does not

come into existence until there is a conviction, and a defendant does not become

an offender until they are convicted."

In an August 25, 2020 order and written decision, the Law Division judge

rejected defendant's arguments. He found defendant committed the DWI

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offense on April 20, 2019 and the revised penalties under the DWI statute

applied prospectively to offenses occurring after December 1, 2019. Because

defendant committed the offense nearly seven months prior to the effective date

of the revised DWI statute, the Law Division judge concluded suspension of

defendant's license was mandated.

The Law Division judge also held defendant's interpretation of the

language in the revised DWI sentencing statute distorted the common definition

and application of the terms "offense" and "offender." He concluded "[u]nder

plain usage, an 'offense' is distinct from an 'offender.' An offense consists of

the transactions and occurrences comprising the acts violative of the statute. In

contrast, an offender under N.J.S.A, 39:4-50.17 is a person who has been

convicted of the offense."

At the sentencing hearing, the Law Division judge suspended defendant's

driving privileges for two years. He also sentenced defendant to forty-eight

hours at the IDRC, thirty hours of community service, installation of an ignition

interlock device for two years after completion of the license suspension period,

and payment of a $1000 fine and other monetary assessments. The Law Division

judge denied defendant's request for a stay of the sentence pending appeal to

this court.

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On appeal, defendant raises the following arguments:

POINT I

USE OF THE TERMS "OFFENSE" AND
"OFFENDER" IN THE LEGISLATION ARE NOT
AMBIGUOUS AND SHOULD BE INTERPRETED
SO AS TO PERMIT DEFENDANTS IN CASES OPEN
AND PENDING AT THE TIME OF THE BILL'S
EFFECTIVE DATE TO ELECT WHETHER TO BE
SENTENCED TO PENALTIES AS THEY EXISTED
BEFORE OR AFTER THE DATE OF
ADJUDICATION.

POINT II

PUNISHMENTS REQUIRED BY AMELIORATIVE
STATUTES MAY APPLY TO OFFENSES
COMMITTED BEFORE BUT ADJUDICATED
AFTER A STATUTE’S EFFECTIVE DATE.

POINT III

INTERPRETING THE TERM "OFFENSE" TO
APPLY ONLY TO INCIDENTS COMMITTED ON
OR AFTER DECEMBER 1, 2019, LEADS TO AN
ABSURD RESULT, GIVEN THE LEGISLATURE’S
FINDING AND DECLARATION THAT ALCOHOL
IGNITION INTERLOCK DEVICES ARE MORE
EFFECTIVE THA[N] DRIVING PRIVILEGE
FORFEITURE.

POINT IV

GIVEN THE EX POST FACTO IMPLICATIONS
WITH THE ENACTMENT OF NEW PENALTIES,
DEFENDANTS CHARGED BEFORE DECEMBER 1,
2019, SHOULD BE GIVEN THE OPPORTUNITY TO

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 CHOOSE WHETHER TO BE SENTENCED IN
ACCORDANCE WITH PENALTIES IN EFFECT
EITHER BEFORE OR AFTER DECEMBER 1, 2019.

After the Law Division judge issued his decision in this matter, we

published our opinion in State v. Scudieri, A-0352-20 (App. Div. November 1,

2021) disposing of the same arguments raised by defendant in this appeal. To

the extent defendant suggests his arguments are more nuanced than the

arguments we reviewed and rejected in Scudieri, we disagree.

Here, defendant argues the four-month delay between adoption of the

revised DWI statute and its effective date supports application of the ignition

interlock device penalty to offenses occurring prior to December 1, 2019. We

addressed this argument in Scudieri, "observ[ing] the four-month gap between

the law's passing and the effective date was hardly an arbitrary or random

decision. Rather, the law granted the New Jersey Motor Vehicle Commission

time to 'take any anticipatory administrative action in advance of that date as

shall be necessary to implement the provisions of this act.'" Id. slip op. at 5.

We also noted the potential for adverse consequences stemming from

acceptance of the defendant's argument seeking "application of the new [DWI]

sentencing laws to defendants . . . who committed offenses prior to the new law's

enactment, but who are sentenced afterward." Id. slip op. at 6. We commented

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such a position would likely result in manipulation of sentencing dates, cause

defendants in similar situations to be sentenced dissimilarly, and foster

impermissible "judge shopping" by defendants seeking a purportedly more

sympathetic judge for sentencing.1 Ibid.

Additionally, defendant argues the revised DWI statute's use of the word

"offense" and "offender" is clear and unambiguous, and the term "offender" is

synonymous with the term "conviction." However, we rejected that argument

in Scudieri. Id. slip op. at 8.

Contrary to defendant's argument, "offense" and "conviction" are not

synonymous. The revised DWI statute applies specifically "to any offense

occurring on or after [December 1, 2019]." N.J.S.A. 39:4-50. If the Legislature

intended to apply the revised DWI statute for any conviction occurring after

December 1, 2019, it would, and could, have so stated. See DiProspero v. Penn,

183 N.J. 477, 494 (2005) (quoting N.J. Democratic Party, Inc. v. Samson, 175

N.J. 178, 195 n. 6 (2002)) ("[T]he Legislature is presumed to be aware of judicial

construction of its enactments.").

1
Judge-shopping is "an attorney's attempt to have a particular judge try his or
her case . . . ." Goldfarb v. Solimine, 460 N.J. Super. 22, 32 (App. Div. 2019),
aff'd as modified and remanded, 245 N.J. 326 (2021). In Goldfarb, we held
judge-shopping "may undermine public confidence in the impartial
administration of justice." Ibid.
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 We affirm the sentence imposed for defendant's DWI conviction based on

our decision in Scudieri. The Law Division judge's application of the DWI

statute in effect as of April 20, 2019, the date defendant admitted operating his

car while intoxicated, was both proper and prescient.

Affirmed.

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