STATE OF NEW JERSEY VS. JAMES T. DOUGHERTY (16-04-0407, BURLINGTON COUNTY AND STATEWIDE) ( 2018 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2045-16T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,                APPROVED FOR PUBLICATION
    v.                                               July 10, 2018
    APPELLATE DIVISION
    JAMES T. DOUGHERTY,
    Defendant-Appellant.
    ________________________________
    Argued April 11, 2018 – Decided July 10, 2018
    Before Judges Alvarez, Nugent, and Currier.
    On appeal from Superior Court of New Jersey,
    Law Division, Burlington County, Indictment
    No. 16-04-0407.
    Joseph P.    Grimes   argued   the    cause    for
    appellant.
    Jennifer E. Kmieciak, Deputy Attorney General,
    argued the cause for respondent (Gurbir S.
    Grewal, Attorney General, attorney; Carol M.
    Henderson, Assistant Attorney General, of
    counsel and on the brief).
    The opinion of the court was delivered by
    ALVAREZ, P.J.A.D.
    Drivers commit a fourth-degree crime if they operate a motor
    vehicle during a period of license suspension for a second or
    subsequent motor vehicle violation of driving while intoxicated
    (DWI), N.J.S.A. 39:4-50, or refusal to submit to a breath test
    (refusal), N.J.S.A. 39:4-50.4(a).              N.J.S.A. 2C:40-26(b).       When
    defendant   James    T.    Dougherty     was   arrested   and   charged    with
    violating N.J.S.A. 2C:40-26(b), he had one prior DWI conviction,
    one prior refusal conviction, and his license was suspended for
    the refusal.      He contends 2C:40-26(b) requires convictions of the
    same two predicate violations, either two convictions for driving
    while intoxicated, or two convictions for refusal, not one of
    each. Based on the plain language of the statute, we conclude the
    two predicate violations may consist of one prior DWI and one
    prior   refusal    conviction.       Hence,     we   affirm   the   denial    of
    defendant's    motion     to   dismiss   the    indictment,   his   subsequent
    conviction, and vacate the Law Division judge's stay of his
    sentence.
    Defendant was convicted on August 19, 2015, of DWI, and on
    November 9, 2015, of refusal.1           On December 19, 2015, during the
    seven-month refusal suspension,2 police stopped defendant while he
    was operating a motor vehicle.               A grand jury indicted him for
    1
    The refusal arrest took place on February 4, 2009. The DWI
    arrest occurred on February 23, 2009. The record does not explain
    the reason for the more than six-year delay between arrests and
    convictions.
    2
    The record does not indicate the length of suspension imposed
    on the DWI.
    2                             A-2045-16T4
    driving while suspended, and after the judge denied his motion to
    dismiss the indictment, defendant entered a conditional guilty
    plea.   The court sentenced him on December 15, 2016, to the
    statutory minimum of 180 days incarceration and stayed the service
    of the jail time pending the outcome of this appeal.
    Defendant raises the following points:
    i.   Point One: A charge of [DWI] or Refusal
    cannot be used to enhance the penalties of the
    other
    ii. All methods of statutory construction
    including the Rule of Lenity in criminal cases
    supports appellant's interpretation of the
    DW[I] statute and requires reversal
    Defendant's arguments on appeal raise issues of law, which
    we review de novo.      State v. Grate, 
    220 N.J. 317
    , 329 (2015)
    (citing State v. Drury, 
    190 N.J. 197
    , 209 (2007)) (holding that
    on appeal legal issues are reviewed "de novo, unconstrained by
    deference to the decisions of the trial court").
    N.J.S.A. 2C:40-26(b) reads:        "[i]t shall be a crime of the
    fourth degree to operate a motor vehicle during the period of
    license suspension in violation of [N.J.S.A.] 39:3-40, if the
    actor's license was suspended or revoked for a second or subsequent
    violation of [N.J.S.A.] 39:4-50 or [N.J.S.A. 39:4-50.4a]."
    Relying   on   State   v.   Ciancaglini,   
    204 N.J. 597
       (2011),
    defendant argues the reference in N.J.S.A. 2C:40-26(b) to a second
    3                              A-2045-16T4
    or subsequent violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4a
    means a single conviction under each section of the Motor Vehicle
    Code does not suffice for prosecution.      We disagree that the
    opinion supports defendant's interpretation of the statute.
    Ciancaglini holds a "[d]efendant's refusal conviction cannot
    be considered a prior DWI violation for enhancement purposes" when
    a defendant is being sentenced for a violation of the DWI statute.
    
    204 N.J. at 612
    .   Ciancaglini focuses only on N.J.S.A. 39:4-50.
    In State v. Frye, 
    217 N.J. 566
     (2014), the Court again
    addressed the interplay between DWI and refusal convictions for
    sentencing purposes, this time in the context of the refusal
    statute.   Frye reaffirmed the doctrine established in In re
    Bergwall, 
    85 N.J. 382
     (1981).   Based on the language of N.J.S.A.
    39:4-50.4a, the Bergwall Court had held a prior DWI conviction
    enhances the sentence for a conviction for refusal.    
    85 N.J. at
    383 (citing In re Bergwall, 
    173 N.J. Super. 431
    , 436 (App. Div.
    1980) (Lora, P.J.A.D., dissenting)). The defendant in Frye argued:
    "the Court's decision in Ciancaglini supports the proposition
    that, for sentencing purposes, the refusal and DWI statutes are
    separate and distinct" and that as a result a prior DWI could no
    longer be used to enhance a refusal penalty.   217 N.J. at 573.
    Contrary to that defendant's suggestion that     Ciancaglini
    controlled the outcome, in Frye, the Court examined the "plain
    4                          A-2045-16T4
    language of the refusal statute" and the legislative history of
    the subsequent amendments, concluding the enactments were all
    designed to discourage drivers from refusing to submit to alcohol
    breath testing in order to avoid more serious penalties under the
    DWI statute.   The Court again held that prior DWI convictions must
    be included as prior convictions when a defendant is sentenced for
    refusal.   Id. at 575-82.      A "strong public policy" mandated the
    continuing viability of Bergwall because of the societal interest
    in addressing the harm inflicted by drunken drivers.         Id. at 582.
    The   analysis   in    Ciancaglini   and   Frye   focuses   on     well-
    established rules of statutory construction as applied to the
    particular law under consideration.       That methodology informs our
    discussion.
    In interpreting a statute, the primary goal is, as always,
    "to divine and effectuate the Legislature's intent."             State v.
    Shelley, 
    205 N.J. 320
    , 323 (2011) (citing DiProspero v. Penn, 
    183 N.J. 477
    , 492 (2005)); accord State v. Bass, 
    224 N.J. 285
    , 322
    (2016) (quoting Shelley, 
    205 N.J. at 323
    ); State v. Gandhi, 
    201 N.J. 161
    , 176 (2010).      We consider the enactment's plain language,
    viewed in the context of the entire legislative scheme                    that
    includes it.    Bass, 224 N.J. at 322; Drury, 
    190 N.J. at 209
    ;
    superceded by statute on other grounds, State v. Livingston, 
    172 N.J. 209
    , 217-18 (2002); superceded by statute on other grounds,
    5                                 A-2045-16T4
    State v. Thomas, 
    166 N.J. 560
    , 567 (2001). "Statutory text 'should
    be given its ordinary meaning and be construed in a common-sense
    manner.'"   State v. Revie, 
    220 N.J. 126
    , 132 (2014) (quoting State
    in re K.O., 
    217 N.J. 83
    , 91 (2014)).
    If, however, the language is ambiguous or lends itself to
    more than one reasonable interpretation, we look beyond the literal
    language and consider extrinsic factors, such as the statute's
    purpose, legislative history, and statutory context to determine
    the legislative intent.     State v. McDonald, 
    211 N.J. 4
    , 18 (2012);
    Gandhi, 
    201 N.J. at 177, 180-81
    ; Drury, 
    190 N.J. at 209
    .
    We must strictly construe any reasonable doubt about the
    meaning of a penal statute in favor of a defendant, applying the
    rule of lenity.       State v. D.A., 
    191 N.J. 158
    , 164 (2007).       The
    rule of lenity, however, applies only where the statutory language,
    legislative history, and other secondary sources do not resolve
    the purported ambiguity.      McDonald, 211 N.J. at 18 (citing State
    v. Gelman, 
    195 N.J. 475
    , 482 (2008)); Drury, 
    190 N.J. at 209-10
    .
    Defendant also argues the relevant language is ambiguous and
    triggers the rule of lenity, compelling interpretation of the
    statute   requiring    dismissal   of   his   indictment.   Defendant's
    starting premise on this issue is that a fair reading of State v.
    Olivero, 
    221 N.J. 632
    , 639 (2015), and In re Estate of Fisher, 
    443 N.J. Super. 180
    , 190-95 (App. Div. 2015), means the word "or" in
    6                           A-2045-16T4
    the statute should not be interpreted as "either/or," but as "or"
    without the "either."    He therefore asserts that he should have
    gained the benefit of the rule and his motion to dismiss the
    indictment should have been granted.
    The statutory language is not ambiguous.     Even if it were,
    the legislative history reveals that DWI and refusal are referred
    to interchangeably as predicate convictions.
    "When N.J.S.A. 2C:40-26 was enacted in 2009, L. 2009, c. 333,
    § 1, the Senate intended to lodge 'criminal penalties for persons
    whose [drivers'] licenses are suspended for certain drunk driving
    offenses and who, while under suspension for those offenses,
    unlawfully operate a motor vehicle.'" See State v. Luzhak, 
    445 N.J. Super. 241
    , 245-46 (App. Div. 2016) (quoting Senate Law and
    Public Safety and Veterans' Affairs Comm. Statement to S. 2939
    (Nov. 23, 2009)).   The phrase "certain drunk driving offenses" is
    not limited to one category of offense.   It necessarily refers to
    more than DWI.   Otherwise it would have said the intent of the law
    was to create "criminal penalties for persons whose [drivers']
    licenses are suspended for DWI and who, while under suspension for
    that offense, unlawfully operate a motor vehicle."
    Additionally, the Sponsor's Statement to S. 2939 (June 15,
    2009) explained that N.J.S.A. 2C:40-26(b) made it a fourth-degree
    crime for "a person who is convicted of a second or subsequent
    7                          A-2045-16T4
    driving while intoxicated or refusal offense" to operate a motor
    vehicle during a period of license suspension "for that second
    offense."     After the specific mention of DWI and refusal, the
    language states:    "that second offense[,]" effectively referring
    to both types of offenses interchangeably as possibilities.             The
    legislative    intent   is   therefore   clear——the   word   "either"    is
    imported into the use of "or" in this statute.        Since the statute
    is not ambiguous, and the pertinent language does not lend itself
    to a different reasonable interpretation, the rule of lenity does
    not apply.
    It is noteworthy that the statute, unlike most fourth-degree
    crimes, imposes a mandatory 180-day jail sentence.3          That speaks
    to the legislative purpose of addressing the problem of drunk
    driving by imposing significant sanctions, tailored to maximize
    the deterrent impact.
    We affirm defendant's conviction and vacate the stay of the
    sentence.
    3
    N.J.S.A. 2C:44-1(e) creates a general presumption against
    imprisonment for first offenders convicted of fourth-degree
    crimes.
    8                             A-2045-16T4