State v. Rama

The opinion of the court was delivered by

D’ANNUNZIO, J.A.D.

The issue is whether N.J.S.A. 2C:20-2.1) (section 2.1) mandates the suspension of defendant’s driving privileges upon conviction of automobile theft, or whether the statute merely authorizes a court to impose that sanction in its sentencing discretion.

Pursuant to a plea agreement, defendant pleaded guilty to receiving stolen property, a 1994 Lexus automobile, in violation of N.J.S.A. 2C:20-7. The court sentenced defendant to three years of probation, suspension of his driver’s license for one year, a $500 penalty, restitution, and other concomitant financial penalties. The court imposed the $500 penalty and license suspension because it believed that section 2.1 mandates the imposition of those sanctions. The court noted, however, that in the absence of section 2.1’s mandate, it would not have imposed the license suspension. The court stayed the license suspension pending appeal. We conclude that the section 2.1 sanctions are mandatory.

Section 2.1 provides:

a. In addition to any other disposition authorized by law, a person convicted under the provisions of this chapter of theft or unlawful taking of a motor vehicle shall be subject:
(1) For the first offense, to a penalty of $500.00 and to the suspension or postponement of the person’s license to operate a motor vehicle over the highways of this State for a period of one year.
(2) For a second offense, to a penalty of $750.00 and to the suspension or postponement of the person’s license to operate a motor vehicle over the highways of this State for a period of two years.
*342(3) For a third or subsequent offense, to a penalty of $1,000.00 and to the suspension or postponement of the person’s license to operate a motor vehicle over the highways of this State for 10 years.

Defendant contends that the section 2.1 sanctions are discretionary because the Legislature did not mandate their imposition,’but merely made qualifying defendants “subject to” them in the trial court’s sentencing discretion.

In construing a statute we must effectuate the Legislature’s intent. Monmouth County v. Wissell, 68 N.J. 35, 43-44, 342 A.2d 199 (1975). Sources of legislative intent are the language of a statute, the policy behind a statute, concepts of reasonableness, and legislative history. Coletti v. Union County Bd. of Chosen Freeholders, 217 N.J.Super. 31, 35, 524 A.2d 1270 (App. Div.1987); Shapiro v. Essex County Bd. of Chosen Freeholders, 177 N.J.Super. 87, 92, 424 A.2d 1203 (Law Div.1980), aff'd, 183 N.J.Super. 24, 443 A.2d 219 (App.Div.), aff'd, 91 N.J. 430, 453 A.2d 158 (1982).

“[W]e must first look at the evident wording of the statute to ascertain its plain meaning and intent.” Renz v. Penn Cent. Corp., 87 N.J. 437, 440, 435 A.2d 540 (1981). Our duty is to apply the legislative intent as expressed in the statute’s language, and we are not to presume that the Legislature intended something other than what it expressed by its plain language. In re Jamesburg High Sch. Closing, 83 N.J. 540, 548, 416 A.2d 896 (1980); In re Howell Tp., Monmouth County, 254 N.J.Super. 411, 419, 603 A.2d 959 (App.Div.), certif. denied, 127 N.J. 548, 606 A.2d 362 (1991).

In the present case, the language “shall be subject to” is ambiguous. See Leslie Salt Co. v. United States, 55 F.3d 1388, 1396-97 (9th Cir.) (describing phrase “shall be subject to” as “somewhat odd.”), cert. denied, Cargill, Inc. v. United States, — U.S.-, 116 S.Ct. 407, 133 L.Ed.2d 325 (1995). Although “shall” is mandatory, “subject to” is less clearly so. Compare Leslie Salt Co., supra, (holding that clause “shall be subject to a civil penalty” mandated imposition of penalty), with Spradling v. City of Tulsa, *34395 F.3d 1492, 1501 (10th Cir.1996) (ruling that phrase “subject to reduction” means “possibility.”) (cert. denied, U.S. -, 117 S.Ct. 1081, 137 L.Ed.2d 216) and People v. Postall, 153 Misc.2d 167, 580 N.Y.S.2d 975, 980 (1992) (declaring that postal service regulation that “[ejmployee lockers are subject to inspection” did not constitute blanket consent to search because phrase “subject to” is ambiguous; it can mean “always” or “under appropriate circumstances.”). When statutory language is ambiguous, courts must choose a construction which will carry out the legislative intent of the statute as a whole. Accountemps Div. of Robert Half v. Birch Tree Group, 115 N.J. 614, 622-23, 560 A.2d 663 (1989). Even though penal statutes should be strictly construed, the legislative intent controls in interpreting such statutes. State v. Tischio, 107 N.J. 504, 511, 527 A.2d 388 (1987).

Section 2.1 was one of a package of four bills passed by the Legislature and signed by Governor Florio in response to an epidemic of automobile thefts in New Jersey. All four of the bills were effective April 2,1991.

L. 1991, c. 80, § 1 added N.J.S.A. 2C:20-16. It defined a new second degree crime, the maintenance or operation of “any premises, place or facility used for the remodeling, repainting, or separating of automobile parts for resale of any stolen automobile,” colloquially known as a “chop shop,” and, as an additional sanction, provided that a person convicted of this offense “shall forthwith forfeit his right to operate a motor vehicle in this State for a period to be fixed by the court at not less than three nor more than five years.”

L. 1991, c. 81, added N.J.S.A. 2C:20-17, which makes it a second degree crime for an adult to knowingly use a person seventeen years of age or younger to commit theft of an automobile. The statute provided that an actor’s mistaken belief that the juvenile was older than seventeen is no defense “even if such mistaken belief was reasonable.” N.J.S.A. 2C:20-17b.

*344L. 1991, c. 82, added N.J.S.A. 2C:20-18 which makes it a second degree crime to be “a leader of a theft trafficking network.” It authorized a fine not to exceed $250,000 “or five times the retail value of the automobiles seized at the time of the arrest, whichever is greater.”

L. 1991, c. 88, § 1 is section 2.1. Section 2 of chapter 83, however, is N.J.S.A. 2C:20-2.2 (section 2.2). This section authorizes a fine greater than the maximum ordinary fine of $7,500 for a third-degree offense, if a stolen automobile is not recovered. In that event, it authorizes a fine equivalent to the fair market value of the unrecovered vehicle.

It is apparent that the four statutes manifest the Legislature’s determination to increase the punishment available for persons involved in auto theft.

Section 3 of chapter 83 reinforces the inference that those statutes as a whole reflected the Legislature’s determination to attack aggressively the problem of auto theft. Section 3 amended N.J.S.A. 2A:4A-26 by adding automobile theft to the list of serious offenses which qualified juveniles for treatment as an adult. L.1991, c. 83 § 3; N.J.S.A. 2A:4A-26a(2)(h).

We recognize that the operative language in section 2.1 lacks the clear mandate contained in chapter 80, section 1 which, as previously indicated, provides that a person convicted of maintaining a “chop shop” “shall forthwith forfeit his” driving license. Though the language difference between section 2.1 and chapter 80 are entitled to consideration regarding the Legislature’s intent, we attribute less significance to those differences than the other indicia of legislative intent. Moreover, when the Legislature authorized a discretionary sanction, it used language which clearly expressed that intent. It did so in chapter 82 when it provided that “the court may impose a fine not to exceed $250,000____” on the leader of a theft trafficking network.

We also note that section 2.1b contains detailed provisions for the administration of license suspensions under the statute. The *345first sentence removes the sentencing court’s discretion regarding the commencement date of any license suspension. It provides;

The suspension or postponement of the person’s license to operate a motor vehicle pursuant to subsection a. of this section shall commence on the day the sentence is imposed.
[N.J.S.A. 2C:20-2.1b.]

We are persuaded that the Legislature would not have granted only discretionary powers to suspend a license while removing from the sentencing court the discretion to determine the commencement date of the suspension period. Similarly, § 2.1 establishes the period of suspension, thereby removing even that degree of discretion from the sentencing court.

Finally, the criminal code, prior to the adoption of section 2.1, empowered a sentencing court, within its discretion, to forfeit a driving license for crimes “in the course of which a motor vehicle was used.” N.J.S.A. 2C:43-2c. It provides:

Instead of or in addition to any disposition made according to this section, the court may postpone, suspend, or revoke for a period not to exceed two years the driver’s license, registration certificate, or both of any person convicted of a crime, disorderly persons offense, or petty disorderly persons offense in the course of which a motor vehicle was used. In imposing this disposition and in deciding the duration of the postponement, suspension or revocation, the court shall consider the severity of the crime or offense and the potential effect of the loss of driving privileges on the person’s ability to be rehabilitated. Any postponement, suspension, or revocation shall be imposed consecutively with any custodial sentence.
[Ibid.]

We conclude that automobile theft, including the crime of receiving a stolen automobile under N.J.S.A. 2C:20-7, qualifies as a crime to which N.J.S.A. 2C:43-2c applies. Therefore, if § 2.1 authorizes only discretionary license suspensions, it is redundant and unnecessary. We presume that the Legislature would not adopt such a statute. See State v. Szemple, 135 N.J. 406, 422, 640 A.2d 817 (1994) (“we are mindful that a construction that renders any part of a statute superfluous or meaningless is to be avoided”) (citations omitted).

Affirmed.