Opinion
DOCKET NO. A-1603-13T3
04-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN B. WATSON, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defendant, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the briefs). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Manahan. On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment Nos. 12-12-0753 and 13-07-0417. Joseph E. Krakora, Public Defendant, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the briefs). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Steven B. Watson, Jr. appeals from an order denying his motion to dismiss a single-count indictment charging him with operating a motor vehicle while his license was suspended for driving while intoxicated (DWI) or refusal to submit to a chemical test (Refusal) after his license had previously been suspended for the same DWI or Refusal offense; and from his sentence on a separate offense of violating a condition of a special sentence of community supervision for life (CSL). Defendant argues that because he was driving an all-terrain vehicle (ATV) for which a license was not required, the court should have dismissed the indictment relating to the DWI or Refusal. Defendant also argues that his sentence on the CSL violation is excessive. For the reasons that follow, we reverse his conviction for driving while his license was suspended, but affirm his sentence on the CSL violation.
I.
In March 2012, a State Conservation Officer observed defendant drive an ATV for approximately 500 yards along Gravelly Hill Road in the Maskell Mills Wildlife Management area. The State subsequently presented to a grand jury evidence that defendant had violated N.J.S.A. 2C:40-26, which provides:
a. It 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 removed for a first violation of [N.J.S.A.] 39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and the actor had previously been convicted of violating of [N.J.S.A.] 39:3-40 while under suspension for that first offense. A person convicted of an offense under the this
subsection shall be sentenced by the court to a term of imprisonment.A person commits a fourth-degree crime under subsection a. by violating N.J.S.A. 39:3-40 (driving while suspended) two or more times during the period of suspension for a first DWI or Refusal; and subsection b. by violating N.J.S.A. 39:3-40 during a period of suspension for a second or subsequent DWI or Refusal.
b. It 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 section 2 of P.L.1981, c.512 ([N.J.S.A.] 39:4-50.4a). A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.
c. Notwithstanding the term of imprisonment provided under N.J.S.[A.] 2C:43-6 and the provisions of subsection e. of N.J.S.[A.] 2C:44-1, if a person is convicted of a crime under this section the sentence imposed shall include a fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole.
When the State presented the case against defendant to the grand jury, the prosecutor called one witness, Conservation Officer Tracy L. Stites. Stites testified that while working in the Maskell Mills Wildlife Management area in March 2012, he observed defendant drive an ATV for approximately 500 yards along Gravelly Hill Road. Defendant complied when Stites motioned him to stop. Stites asked defendant for identification and a driver's license. Defendant said his license had been suspended. Defendant further explained that he had been working on the ATV's carburetor and was testing the repairs. Defendant admitted that he was riding on the road and the trails in the area.
The next day, Stites obtained a copy of defendant's driving abstract. The prosecutor elicited the following testimony concerning Stites' review of defendant's abstract:
Q And, on that day you received Mr. Watson's driver's abstract; correct? Then you learned that his license was suspended because of a previous DUI; correct?
A That's correct.
Q And, in fact, he had two previous DUIs; correct?
A Yes.
Q And, that was why his license was suspended at that time?
A Yes.
We pause to note that the Conservation Officer's testimony establishes the elements of N.J.S.A. 2C:40-26b, namely, that a person operates a motor vehicle during the period of license suspension when the person's license "was suspended or revoked for a second or subsequent [DWI or Refusal]." That offense is distinguishable from N.J.S.A. 2C:40-26a, which establishes a crime of the fourth degree for operating a motor vehicle during a period of suspension for DWI or Refusal "if the actor's license was suspended for a first [DWI or Refusal] and the actor had previously been convicted of violating [N.J.S.A.] 39:3-40 while under suspension for that first offense."
Returning to the grand jury presentation, after Stites testified, the following exchange took place between the prosecutor and a grand juror:
[Prosecutor:] Any questions of fact or questions of law for myself? Yes.
The Juror: Do you need a driver's license to operate an ATV?
[Prosecutor:] If you're on a public road, yes.
The Juror: All right. He was - - he was on the road?
[Prosecutor:] Yes.
The Juror: Yes.
[Prosecutor:] That's what I asked.
The grand jury returned a single-count indictment charging defendant with
operat[ing] a motor vehicle during a period of suspension in violation of [N.J.S.A.] 39:3-40 when [his] license was suspended or revoked for a first violation of [N.J.S.A.] 39:4-50, Driving While Intoxicated . . . and [he] had previously been convicted of
violating [N.J.S.A.] 39:3-40 while under suspension for that first DWI . . . offense, contrary to the provisions of N.J.S.A. 2C:40-26(a) . . . .
Defendant subsequently moved to dismiss the indictment. The trial court denied the motion. Noting that an ATV fits the definition of a motor vehicle in N.J.S.A. 39:1-1, namely, "all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles[,]" and further noting the provision in N.J.S.A. 39:3-10 that "[n]o person shall drive a motor vehicle on a public highway . . . unless the person . . . is in possession of a . . . basic driver's license[,]" the court reasoned that defendant was subject to the penalties set forth in N.J.S.A. 39:3-40 (driving when license suspended), as well as the penalties set forth in N.J.S.A. 2C:40-26. The court did not discuss the provisions of Title 39, Chapter 3C, which specifically regulate ATVs.
While the charges stemming from defendant's driving an ATV were pending, a grand jury charged him in a separate indictment with knowingly violating a condition of a special sentence of CSL, N.J.S.A. 2C:43-6.4d. Defendant thereafter negotiated a plea to both indictments. During the plea colloquy, defendant gave the following factual basis for his plea involving his license suspension:
Q. Mr. Watson, on March 31st, 2012, you were in the Township of Quinton?
A. Yes.
Q. And, you were operating an ATV?
A. Correct.
Q. And, you were on the road?
A. Yes.
Q. And, you have a prior DUI?
A. Yes.
Q. And, your license was suspended for the DUI?
A. Correct.
. . . .
THE COURT: Anything, Prosecutor?
[PROSECUTOR:] The State's satisfied.
THE COURT: Then at this time I'll find that there is a sufficient factual basis for the Plea. I find that it was made freely, voluntarily, without coercion, with a full understanding of the ramifications, knowing wavier of trial, adequate representation of counsel.
As is evident from a comparison of the plea colloquy with the statute, N.J.S.A. 2C:40-26a, the facts to which defendant admitted did not establish the statutory elements. In fact, they did not even establish the statutory elements of N.J.S.A. 2C:40-26b.
In accordance with the plea bargain, the court sentenced defendant on the indictment involving the ATV to 180 days in the county correctional facility; and on the indictment involving violation of a special condition of CSL to 364 days in the county correctional facility. The sentences were concurrent. The court also imposed appropriate penalties and assessments. Following imposition of sentence, defendant filed this appeal.
II.
Defendant presents the following points for our consideration:
POINT I
BECAUSE OPERATING AN ATV DOES NOT REQUIRE POSSESSION OF A VALID DRIVER'S LICENSE, AN INDIVIDUAL CANNOT VIOLATE N.J.S.A. 2C:40-26(a) BY OPERATING AN ATV DURING A PERIOD OF DRIVER'S LICENSE SUSPENSION. THEREFORE, THE COURT ERRED IN FAILING TO DISMISS THE INDICTMENT.
POINT II
A REMAND IS REQUIRED FOR RESENTENCING TO CORRECT THE EXCESSIVE SENTENCE IMPOSED ON INDICTMENT NUMBER 13-07-0417.
We first address defendant's first point. The registration and operation of snowmobiles, ATVs, and dirt bikes are regulated by the provisions of N.J.S.A. 39:3C-1 to -34. Those statutory provisions do not require a person to have a license to operate an ATV. Nevertheless, N.J.S.A. 39:3C-17(b), with exceptions not relevant to the case before us, prohibits any person from operating an ATV on a public street or highway. N.J.S.A. 39:3C-19 enumerates unlawful acts for ATV operators. Those acts do not include operating an ATV without a license. The penalties for violating the provisions of Chapter 3C are set forth in N.J.S.A. 39:3C-28.
In addition to the provisions of Chapter 3C, the legislature has provided, specifically, that certain enumerated laws apply to ATV operators:
Text of section effective until the third month after the date the commissioner has designated the first of the three sites pursuant to section 38 of P.L.2009, c. 275 (C.13:1L-5.1).
Owners and operators of snowmobiles and all-terrain vehicles shall, when operating such across a public highway or on public lands or waters, comply with the following provisions of chapter 4 of Title 39 of the Revised Statutes: [N.J.S.A.] 39:4-48 through [N.J.S.A.] 39:4-51; [N.J.S.A.] 39:4-64; [N.J.S.A.] 39:4-72; [N.J.S.A.] 39:4-80; [N.J.S.A.] 39:4-81; [N.J.S.A.] 39:4-92; [N.J.S.A.] 39:4-96 through [N.J.S.A.] 39:4-98; [N.J.S.A.] 39:4-99; [N.J.S.A.] 39:4-100; [N.J.S.A.] 39:4-104; [N.J.S.A.] 39:4-129 through [N.J.S.A.] 39:4-134; [N.J.S.A.] 39:4-203. The failure to comply with any of these provisions shall be a violation of this act and the penalty for such a violation shall be as provided in section 28 of P.L.1973, c. 307 ([N.J.S.A.] 39:3C-28) rather than the penalty provided in the sections cited above.
[N.J.S.A. 39:3C-30.]
Text of section effective on the third month after the date the commissioner has designated the first of the three sites pursuant to section 38 of P.L.2009, c. 275 (C.13:1L-5.1).
Owners and operators of snowmobiles, and all-terrain vehicles, and dirt bikes shall, when operating such across a public highway or on public lands or waters, comply with the following provisions of chapter 4 of Title 39 of the Revised Statutes: [N.J.S.A.] 39:4-48 through [N.J.S.A.] 39:4-51; [N.J.S.A.] 39:4-64; [N.J.S.A.] 39:4-72; [N.J.S.A.] 39:4-80; [N.J.S.A.] 39:4-81; [N.J.S.A.] 39:4-92; [N.J.S.A.] 39:4-96 through [N.J.S.A.] 39:4-98; [N.J.S.A.] 39:4-99; [N.J.S.A.] 39:4-100; [N.J.S.A.] 39:4-104; [N.J.S.A.] 39:4-129 through [N.J.S.A.] 39:4-134; [N.J.S.A.] 39:4-203.
[N.J.S.A. 39:3C-30.]
According to the New Jersey Department of Environmental Protection official website, the first state-owned ATV park was opened on January 13, 2013. Thus, when defendant violated N.J.S.A. 39:3C-17(b) by operating the ATV on a public street or highway, N.J.S.A. 39:3C-30 explicitly provided that the penalty for DWI or Refusal was not the penalty provided for in the DWI and Refusal statutes, but rather the penalty provided in N.J.S.A. 39:3C-28. Moreover, the Legislature had not provided that N.J.S.A. 39:3-40, prohibiting a person whose driver's license has been suspended from operating a motor vehicle, applied to ATVs.
When the prosecutor presented the case against defendant to the grand jury, he specifically informed a grand juror that if a person is operating an ATV on a public road, that person needs a license. Though inadvertent, and perhaps not an unreasonable interpretation of N.J.S.A. 39:1-1, that statement was a misstatement. It implied that one could obtain a license to operate an ATV on a public highway, which is just not so.
The trial court also relied on the definition of "motor vehicle" in N.J.S.A. 39:1-1 in reasoning that the ATV was subject to the licensing provisions of Title 39. However, specific statutes regulate the registration and operation of ATVs. Those specific statutory provisions control, rather than the general provisions of Title 39. "In general, when there is a conflict between general and specific provisions of a statute, the specific provisions will control." Wilson v. Unsatisfied Claim & Judgment Fund Bd., 109 N.J. 271, 278 (1988).
Here, the specific provisions of N.J.S.A. 39:3C-1 to -34 controlled the operation of ATVs. As we have noted, those provisions did not incorporate N.J.S.A. 39:3-40 prohibiting one from driving while his or her license is suspended, and provided a specific penalty for driving an ATV while intoxicated. In view of the Legislature's specific action, we can discern no basis for expanding the statutory provisions regulating ATVs beyond those specifically incorporated by the Legislature.
The State argues that when defendant pled guilty, he did not preserve for appeal his challenge to the indictment, thereby waiving it. We disagree.
This case is replete with error. In addition to the prosecutor's misstatement to a grand juror, the grand jury returned an indictment charging defendant with N.J.S.A. 2C:40-26a when the proofs presented to the grand jury did not establish that offense. More significantly, the factual basis for defendant's plea did not establish the elements of either N.J.S.A. 2C:40-26a or b. Our Supreme Court has recently emphasized the policy reasons underpinning the need to obtain from a defendant pleading guilty a factual basis that establishes the elements of the offenses to which he is pleading. See State v. Tate, 220 N.J. 393 (2015); State v. Gregory, 220 N.J. 413 (2015); State v. Perez, 220 N.J. 423 (2015).
In short, flaws occurred at every critical stage of the criminal proceedings against defendant. Considering those circumstances, we decline to find that he waived his right to challenge the indictment.
We have considered defendant's arguments in support of his second point and found them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
For the foregoing reasons, the judgment of conviction on Indictment 12-12-0753, concerning defendant's operation of an ATV while his license was suspended for DWI, is reversed. The sentence on Indictment 13-07-0417, violation of a condition of CSL, is affirmed.
Affirmed in part and reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION