Opinion
DOCKET NO. A-4578-12T1
07-01-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PETER J. HEINZ, Defendant-Appellant.
Robert W. Mayer, attorney for appellant. Frederic M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-023.
Robert W. Mayer, attorney for appellant.
Frederic M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Peter J. Heinz appeals from the April 19, 2013 decision by the Law Division judge refusing to allow him to serve a ten-day mandatory jail sentence in the Morris County Sheriff's Labor Assistance Program (SLAP). Defendant was sentenced after pleading guilty to driving while suspended, N.J.S.A. 39:3-40. His license had been suspended as a result of a conviction for refusal to submit to an alcohol test, N.J.S.A. 39:4-50.4a. We affirm.
We also dissolve the stay of the jail sentence, which was ordered pending appeal.
Defendant raises the following issue on appeal,
POINT I: S.L.A.P. (SHERIFF'S LABOR ASSISANCE PROGRAM) SHOULD BE AVAILABLE TO DEFENDANT INSTEAD OF 10 DAYS INCARCERATION.
In State v. Luthe, 383 N.J. Super. 512, 515 (App. Div. 2006), we held that a noncustodial sentence was not permissible for a defendant sentenced as a DWI third offender pursuant to N.J.S.A. 39:4-50(a)(3). More recently, we held that SLAP is not the equivalent of incarceration or a workhouse. State v. Kotsev, 396 N.J. Super. 389, 391 (App. Div.), certif. denied, 193 N.J. 276 (2007); see also State v. Grabowski, 388 N.J. Super. 431, 439 (Law Div. 2006) (referring to SLAP as a noncustodial alternative to jail). Indeed, N.J.S.A. 2B:19-5, the enabling legislation for SLAP, indicates that this type of program is an "alternative to direct incarceration[.]" It does not constitute incarceration because "SLAP inmates are not confined at the jail when not performing their labor functions." Grabowski, supra, 388 N.J. Super. at 439.
The statutory language is similar here to the language we interpreted in Luthe. N.J.S.A. 39:3-40 provides in relevant part:
No person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition.Subsection (f)(2), which applies to defendant, provides in pertinent part:
any person violating this section under suspension issued pursuant to R.S. 39:4-50, section 2 of P.L. 1981, c. 512 (C. 39:4-50.4a) or P.L. 1982, c. 85 (C. 39:5-30a et seq.), shall be fined $500, shall have his license to operate a motor vehicle suspended for an additional period of not less than one year or more than two years, and shall be imprisoned in the county jail for not less than 10 days or more than 90 days.
[(Emphasis added).]
We concluded in Luthe that the similar language found in N.J.S.A. 39:4-50(a)(3), referring to service of a sentence "in a county jail or workhouse[,]" precluded any alternative sentencing. Our statements in Luthe apply with equal force here. "The language is clear. Confinement . . . is required. There is no allowance for noncustodial alternatives." Luthe, supra, 383 N.J. Super. at 514.
Accordingly, we conclude, as did the Law Division, that the ten-day sentence imposed under N.J.S.A. 39:3-40(f)(2) must be served in jail and not in SLAP.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION