STATE OF NEW JERSEY VS. ALLAN AFANADOR(04-16, GLOUCESTER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5620-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALLAN AFANADOR,
Defendant-Appellant.
_______________________________
Argued October 3, 2017 – Decided November 14, 2017
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Municipal
Appeal No. 04-16.
Michel L. Testa, Jr. argued the cause for
appellant (Testa Heck Testa & White, PA
attorneys; Anthony M. Imbesi, on the brief).
Joseph H. Enos, Jr., Senior Assistant
Prosecutor, argued the cause for respondent
(Sean F. Dalton, Gloucester County Prosecutor,
attorney; Monica Bullock, on the brief).
PER CURIAM
Defendant pleaded guilty to refusing to submit to a chemical
test, N.J.S.A. 39:4-50.4a (the refusal statute).1 He had prior
convictions in 2004 for refusal to submit to a chemical test, and
in 2008 for driving while intoxicated (DWI), N.J.S.A. 39:4-50 (the
DWI statute). Despite defendant's argument that he should be
sentenced as a second offender for violating the refusal statute,
the municipal court judge, on the basis of those two prior
convictions, sentenced defendant as a third offender.2 Defendant
appealed and proffered the same sentencing argument to the Law
Division judge who held defendant's prior DWI conviction was
properly considered, in accordance with State v. Frye, 217 N.J.
566 (2014), in sentencing defendant as a third-time offender.
On appeal, defendant reiterates his argument that he should
have been sentenced as a second offender, relying on State v.
Ciancaglini, 204 N.J. 597 (2011). The State counters that
defendant's sentence as a third offender complied with the Frye
decision. We agree that defendant's sentence as a third offender
is supported by precedent and affirm.
1
Charges for other motor vehicle violations, including driving
while intoxicated, N.J.S.A. 39:4-50, were dismissed.
2
The judge imposed a ten-year suspension of defendant's driving
privileges and other penalties consistent with a third-time
offender. N.J.S.A. 39:4-50.4a.
2 A-5620-15T1
Our review is de novo because we are considering the legality
of the sentence imposed and "[a] trial court's interpretation of
the law and the legal consequences that flow from established
facts are not entitled to any special deference." Manalapan
Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Supreme Court interpreted an early version of the refusal
statute and held a prior DWI conviction enhanced a sentence for a
subsequent refusal conviction. In re Bergwall, 85 N.J. 382 (1981),
rev'g on dissent, 173 N.J. Super. 431 (App. Div. 1980). Over
thirty years later, the Court recognized Bergwall, despite many
amendments to the refusal statute, "remains binding precedent."
Frye, supra, 217 N.J. at 580. The Court observed the amendments
did not make "any significant changes" to the refusal statute,
concluding that the Legislature acquiesced to the Bergwall Court's
interpretation. Ibid.
In Ciancaglini, supra, 204 N.J. at 599-600, the Court held a
defendant's prior refusal conviction could not enhance a
subsequent DWI sentence. The Court discerned the DWI and refusal
statutes had discrete, albeit related, purposes and elements. Id.
at 606-08. Recognizing the Legislature did not amend either
statute to provide otherwise, the Court concluded references to
prior violations in the DWI statute were to DWI convictions, not
to refusal convictions. Id. at 610-11.
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The Court again acknowledged those statutory differences in
Frye when it held that Bergwall, not Ciancaglini, controlled the
outcome of a case where the defendant's two prior convictions for
DWI enhanced his sentence on a subsequent refusal conviction.
Frye, supra, 217 N.J. at 581-82.
We see no grounds to depart from the Court's statutory
interpretation in Bergwall and Frye. Although the Frye Court
upheld Bergwall, in part, because enhancement of subsequent
refusal convictions prevented defendants with a prior DWI
conviction from gaining a tactical advantage by refusing to be
tested, that consideration was only "further support[]" for the
Court's decision, id. at 582; the statutory interpretation was the
cornerstone of the Court's holding, see id. at 577-80.
The legislative fiat recognized in Bergwall and Frye
surmounts defendant's argument that the enhancement of his
sentence disregards the progressive system of discipline designed
by the Legislature. The Legislature's language compels
enhancement of defendant's refusal conviction.
We comprehend defendant's argument that it is inequitable to
treat his current conviction as a third offense, whereas, if he
was convicted of DWI, he would have faced sentencing as a second
offender. The power to remedy any inequity, however, rests with
the Legislature.
4 A-5620-15T1
Affirmed.
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