Opinion
DOCKET NO. A-5546-12T1
12-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent/Cross-Appellant, v. ANTHONY M. FREZZA, Defendant-Appellant/Cross-Respondent.
Gary H. Lomanno, L.L.C., attorney for appellant/cross-respondent (Mr. Lomanno, on the briefs). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent/cross-appellant (Jason Magid, Assistant Prosecutor, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-08-02000. Gary H. Lomanno, L.L.C., attorney for appellant/cross-respondent (Mr. Lomanno, on the briefs). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent/cross-appellant (Jason Magid, Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
After a bench trial, the trial judge convicted defendant Anthony M. Frezza of the fourth-degree crime of operating a motor vehicle during a period of license suspension for multiple convictions of driving while intoxicated (DWI). N.J.S.A. 2C:40- 26(b). The judge sentenced defendant to two years on probation conditioned upon serving 180 days without parole in the Camden County Correctional Facility which time could be served in an alternative program such as house arrest. Defendant appeals from the July 26, 2013 conviction, arguing that the State presented insufficient evidence of guilt. The State cross-appeals, maintaining that the sentence imposed violated the statutory language requiring a mandatory minimum term of 180 days without parole eligibility. We affirm the conviction and reverse the sentence pursuant to our recent decision of State v. French, 437 N.J. Super. 333 (App. Div. 2014).
The sentence was stayed on joint application of the State and defendant.
The only witness to testify at trial was New Jersey State Trooper Mvemba Bukula, who pulled over defendant on the Atlantic City Expressway at 6:45 a.m. on February 4, 2012, for a motor vehicle stop. When Bukula asked defendant for his driving credentials, defendant told the trooper that his license was suspended. Bukula issued defendant a summons for driving with a suspended license, N.J.S.A. 39:3-40. The videotape of the stop was played for the judge.
The trooper was in uniform and on patrol in a marked police car. Defendant did not dispute the validity of the stop.
The trooper testified that in April he signed a complaint for the fourth-degree crime of driving while on suspension for multiple DWI convictions. The State submitted defendant's certified driving abstract into evidence without objection.
Defense counsel made an unsuccessful motion at the end of the State's case for a directed verdict, arguing that the driving abstract was not admissible evidence of defendant's prior DWI convictions. Defendant did not present evidence. Defense counsel then argued that because of defendant's numerous driving infractions it was impossible to tell from the abstract whether he was serving the suspension for his second DWI conviction at the time of the stop, or serving a suspension imposed earlier and had not yet begun serving the DWI suspension.
Defendant repeats these arguments on appeal. A certified driving abstract is admissible evidence. "DMV records of drivers' license suspensions are deemed sufficiently reliable to be admissible as prima facie evidence of the fact." State v. Pitcher, 379 N.J. Super. 308, 319 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). See State v. Zalta, 217 N.J. Super. 209, 214 (App. Div. 1987) (affirming a conviction for violating N.J.S.A. 39:3-40 predicated upon admission of a certified copy of defendant's driving record); N.J.R.E. 803(c)(6) and (8); N.J.R.E. 902. The abstract reveals that defendant's first DWI conviction occurred on February 25, 2004 and his second on October 26, 2011. Thus a mandatory two-year license suspension was imposed in October 2011. N.J.S.A. 39:4-50(a)(2). He was stopped in February 2012, well within the statutory two-year suspension. A driver is considered under suspension for DWI when that sentence is imposed, even if the driver must first serve a suspension imposed on an earlier date. State v. Cuccurullo, 228 N.J. Super. 517, 520-21 (App. Div. 1988). A contrary result would allow a defendant under suspension with two DWI convictions to escape the harsh custodial penalty intended by the Legislature only because he has such a bad driving record that he must serve suspension for another offense first. The possibility of such an anomalous result if defendant's argument prevailed was addressed and properly rejected by the trial judge.
When sentencing defendant, the trial judge reasoned that a sentence for a fourth-degree crime should not be more punitive than that for a third-degree crime. Following that reasoning, the judge said defendant could serve his time in "[a]ny program that he qualifies for." The judgment of conviction allowed defendant, who had no criminal record, to serve the 180 days imposed "in programs." Defendant's sentencing predated our decision clarifying that a defendant must be sentenced to 180 days in jail without parole, with no sentencing alternative available. State v. French, supra, 437 N.J. Super. at 335-39. We thus reverse the sentence imposed and remand to the judge to resentence defendant to 180 days to be served in jail without eligibility for parole.
In their briefs, both counsel refer to defendant serving the 180-day sentence in a home detention program.
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For the first time at sentencing, the State asked the judge to find defendant guilty of the motor vehicle offense of driving with a suspended license, N.J.S.A. 39:3-40. The State pointed out that the penalties of a mandatory license suspension and fine attaches to the motor vehicle violation but not the fourth-degree crime. The judge discussed the possibility of merger of the two offenses, but ultimately dismissed the motor vehicle violation because the trial was over and the State had not sought a conviction on the violation until the sentencing date. The argument is raised on appeal only in a footnote in the State's supplemental brief. The State argues in this footnote that we should exercise original jurisdiction to find defendant guilty of this motor vehicle violation and impose an additional penalty of a $1000 fine and two-year license suspension, which penalties would survive any merger.
"The requirement that legal issues be argued under point headings obviously forecloses the raising of issues merely by footnote." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2.6-2 (2015). This dismissal issue was not raised in the notice of cross-appeal either. R. 2:5-1(f)(1). "[I]t is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review." 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004). As the State had the opportunity to raise this issue properly at trial and on appeal, and offers no reason for not doing so, we will not review the judge's decision to dismiss the motor vehicle violation.
The conviction is affirmed. The sentence is reversed and remanded for resentencing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION