Opinion
DOCKET NO. A-0932-10T3
11-16-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERIK J. MURPHY, Defendant-Appellant.
Milber Makris Plousadis & Seiden, LLP, attorneys for appellant (Gabriel Adamo, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
Before Judges Grall and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 10-42.
Milber Makris Plousadis & Seiden, LLP, attorneys for appellant (Gabriel Adamo, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief).
Following a trial de novo in the Law Division, defendant Erik J. Murphy was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; and reckless driving, N.J.S.A. 39:4-96. The Law Division judge imposed a ninety-day driver's license suspension for the reckless driving conviction, a seven-month driver's license suspension for the DWI conviction to run consecutive to the suspension imposed for the reckless driving conviction, and a seven-month driver's license suspension for the refusal to submit to a breath test conviction to run consecutive to the suspension for the DWI conviction. This appeal followed.
The summons and judgment of conviction incorrectly cite N.J.S.A. 39:4-50.2 as the refusal statute instead of N.J.S.A. 39:4-50.4a. At a pre-trial hearing, the parties discussed the offense as a refusal offense, and it was tried as a refusal offense without objection. Thus, an amendment to the judgment of conviction is permitted to reflect the correct statute. State v. Ryfa, 315 N.J. Super. 376, 381 (Law Div. 1998); R. 7:14-2.
Defendant was also convicted of failure to keep right, N.J.S.A. 39:4-88; three counts under N.J.S.A. 39:3-29: failure to have in his possession a driver's license, a motor vehicle registration, and an insurance card; and failure to have a current motor vehicle inspection sticker, N.J.S.A. 39:8-1. He does not appeal from those convictions.
On appeal, defendant presents the following arguments
POINT I
THE TRIAL COURT IGNORED SENTENCING GUIDELINES AND FAILED TO FOLLOW PROPER SENTENCING PROCEDURES.
A. An Application of The Threshold [Yarbough] Sentencing Guidelines Requires the Imposition of Concurrent Sentencing.
B. The Court's Failure to Separately State its Reasons For Imposing a Consecutive Punishment Was Inappropriate.
C. This Excessive and Unwarranted Sentence is [Abhorrent] to a Sentencing Scheme That Stresses the Prima[c]y of Uniformity in Sentencing.
POINT II
MR. MURPHY RECEIVED INEFFECTIVE ASSISTANCE AT TRIAL THAT GREATLY PREJUDICED THE OUTCOME OF HIS CASE.
A. Trial Counsel's Failure to Effectively Subpoena Indispensable Witnesses Satisfies the First Prong of The [Strickland/Fritz] Test for Actual Ineffectiveness of Counsel.
B. Trial Counsel's Failure to Effectively Subpoena Indispensable Witnesses Prejudiced The Defendant Because it Precluded His Viable Confusion Defense.
C. Trial Counsel's Failure to Present Any Applicable Mitigating Factors at Sentencing [Satisfies] Both Prongs of The [Strickland/Fritz] Test for Ineffective Assistance of Counsel.
State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
We decline to address defendant's arguments in Point II relating to the alleged ineffective assistance of trial counsel. "'Our courts have expressed a general policy against entertaining ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.'" State v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). "However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal. Ibid. (citing State v. Allah, 170 N.J. 269, 285 (2002)). We are not persuaded that the record was sufficiently developed for us to consider defendant's claim of ineffective assistance of counsel on appeal. Thus, we adhere to the practice of deferring the issues of alleged ineffective-assistance of counsel to post-conviction relief proceedings where the necessary factual record can be established. Id. at 316.
Regarding defendant's arguments in Point I, we reverse and remand the sentence for reckless driving. A driver's license suspension is not an automatic sanction for reckless driving. See N.J.S.A. 39:4-96. As our Supreme Court made clear in State v. Moran, 202 N.J. 311, 322 (2010), N.J.S.A. 39:5-31 authorizes the municipal court and Law Division to impose a period of suspension for reckless driving. To do so, however, the court must first determine whether there are aggravating circumstances, that is, whether the driver "willfully violat[ed] the reckless-driving statute [by engaging] in conduct that is highly 'likely to endanger[] a person or property.'" Id. at 323-24 (quoting N.J.S.A. 39:4-96); see also State v. Palma, 426 N.J. Super. 510, 518 (App. Div. 2012). The court must then consider the following factors in determining whether to impose a license suspension under N.J.S.A. 39:5-31 and the length of the suspension:
Moran was decided on July 13, 2010, which was after defendant's municipal court conviction on April 29, 2010, but before his Law Division conviction on September 2, 2010.
[T]he nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation; whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation; whether the defendant's conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or dependants; and the need for personal deterrence. . . . Any other relevant factor clearly identified by the court may be considered as well. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors.
[Id. at 328-29.]
The court must then articulate the reasons for imposing a period of license suspension. Id. at 329; see also Rule 7:9-1(c) (requiring the court to "state it reasons for imposing sentence, including the findings for . . . imposing . . . driver's license suspension" in non-criminal cases involving a consequence of magnitude). "The suspension of a driver's license is a consequence of magnitude[.]" Moran, supra, 202 N.J. at 325.
Here, the Law Division judge did not follow Moran and Rule 7:9-1(c) in imposing the ninety-day driver's license suspension for defendant's reckless driving conviction. We, thus, reverse and remand for reconsideration of the reckless driving sentence.
We also reverse and remand defendant's consecutive sentences for DWI and refusal to submit to a breath test. We disagree with defendant that Yarbough applies to motor vehicle violations. "Motor vehicle violations are not offenses under the Code of Criminal Justice, and hence the Code's provisions, . . . do not apply to a . . . violation of the Motor Vehicle Act." State v. Hammond, 118 N.J. 306, 307 (1990); see also Palma, supra, 426 N.J. Super. at 517. For this reason, Rule 7:9-1(b), which requires the court to state its reasons for imposing the sentence and its factual basis for finding aggravating and mitigating factors in criminal code cases, does not apply to motor vehicle violations. We conclude that the court must apply the Moran rational and factors when determining whether to impose a consecutive sentence for motor vehicle violations.
This ruling does not apply to a second or subsequent refusal conviction. N.J.S.A. 39:4-50a mandates that a driver's license revocation for a second or subsequent refusal conviction shall be consecutive to any revocation imposed for a DWI conviction.
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Reversed and remanded to the Law Division for further proceedings consistent with this opinion. The Law Division judge, in conducting further proceedings prior to imposing de novo sentence, may supplement the record and admit additional testimony. R. 3:23-8(a). We also remand for entry of an amended judgment of conviction to reflect the refusal conviction under N.J.S.A. 39:4-50a.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION