Opinion
DOCKET NO. A-2257-13T3
06-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANSHU PATHAK, Defendant-Appellant.
Kenneth A. Vercammen argued the cause for appellant (Kenneth Vercammen & Associates, attorneys; Mr. Vercammen, on the brief). Brian D. Gillet, Deputy First Assistance Prosecutor/Special Deputy Attorney General, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet of counsel; Matthew P. Tallia, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 20-2013.
Kenneth A. Vercammen argued the cause for appellant (Kenneth Vercammen & Associates, attorneys; Mr. Vercammen, on the brief).
Brian D. Gillet, Deputy First Assistance Prosecutor/Special Deputy Attorney General, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet of counsel; Matthew P. Tallia, on the brief). PER CURIAM
On April 6, 2012, defendant Anshu Pathak was arrested and charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50; DWI in a school zone, N.J.S.A. 39:4-50(g); refusal to submit to a breath test, N.J.S.A. 39:4-50.2; driving while suspended, N.J.S.A. 39:3-40; reckless driving, N.J.S.A. 39:4-96; and failure to produce the vehicle registration, N.J.S.A. 39:3-29. Following an unsuccessful motion to suppress evidence and a trial in the Piscataway Municipal Court, defendant was found guilty of the two DWI offenses, the refusal charge, and driving while suspended. Defendant was acquitted of the registration offense, and the court dismissed the reckless driving charge by merger.
The municipal court treated the DWI in a school zone as a third offense, and sentenced defendant to a 180-day jail term, imposed a twenty-year suspension of driving privileges, and a $2006 fine. For sentencing purposes, the court merged the DWI conviction with the school zone offense. On the refusal conviction, the court ordered a consecutive twenty-year license suspension and a $2006 fine. A $506 fine and consecutive six-month license suspension was imposed for driving while suspended. The court also imposed related costs, surcharges and penalties on each offense.
Following a trial de novo in the Law Division, defendant was again found guilty, and the same sentences were imposed. Defendant appeals, raising the following contentions:
POINT IHaving reviewed the record, we affirm defendant's convictions. However, we remand to the Law Division for reconsideration of the sentences imposed on the DWI and refusal offenses.
The trial judge should have granted the Motion to Transfer Case and Recuse Judge who heard confidential inadmissible facts on the record pre-trial
POINT II
The Municipal Court should have permitted expert Dr. Saferstein to testify at the Suppression motion and adjourn trial by one day to permit expert to testify
POINT III
The Court violated Defendant's Rights by Failure to provide a short adjournment to permit new defense counsel Vercammen more than 3 days to prepare to Trial.
POINT IV
The Municipal Court violated defendant's rights and ignored Court Rules by not recording court proceedings and conducting proceedings "off the record" [not raised before Law Division]
POINT V
The Municipal Court violated defendant's rights by conducting proceedings without defendant being present [not raised before Law Division]
POINT VI
The initial attorneys provided ineffective assistance of counsel signing an Order prepared by a Prosecutor to require an expert report to be served within two weeks then failing to file any motions to defend the DWI charge [not raised before Law Division]
POINT VII
The Judge did not carefully weigh the aggravating and mitigating factors and should have run penalties concurrent
I.
We summarize the salient facts and procedural history. At a case management conference (CMC) on November 15, 2012, the municipal court entered a pre-trial order deeming discovery complete, allowing defendant two weeks to submit any expert reports, and scheduling a further CMC for December 13, 2012. The next CMC took place on December 19, 2012. Since no expert report had been produced, the court barred any defense expert, and scheduled a peremptory trial date for January 9, 2013.
Defendant, represented by counsel, appeared on January 9, 2013, and entered a guilty plea to DWI and driving while suspended. He sought to be sentenced as a second offender on the DWI conviction. However, defendant was permitted to retract his guilty plea when a review of applicable case law did not support treating it as a second, as opposed to a third, DWI conviction. The court then rescheduled the matter for trial.
The parties next appeared on February 27, 2013. Defense counsel moved to recuse the municipal judge, on the basis that he had previously heard the factual basis underlying defendant's aborted guilty plea. The court denied the motion, relying on State v. Medina, 34 9 N.J. Super. 108 (App. Div.), certif. denied, 174 N.J. 193 (2002). Counsel then requested an adjournment to allow defendant's expert, Dr. Richard Saferstein, to testify, and to proceed with a Laurick motion in Highland Park Municipal Court where defendant's first DWI conviction was entered. The court granted defendant a final adjournment, and re-listed the matter for trial peremptorily on March 13, 2013.
In State v. Laurick, 120 N.J. 1, 16-17 (1990), the Court held that a defendant may not suffer an increased period of incarceration as a result of an improper previous uncounseled DWI conviction, and that postconviction relief from the effect of a prior uncounseled conviction should be sought in the court that imposed the original sentence.
On March 11, 2013, defendant retained new counsel, who promptly requested an adjournment. The court denied the adjournment, citing the age of the case and that the matter had previously been adjourned and a firm trial date scheduled. The court also ruled that it would allow the substitution as long as new counsel was prepared to proceed. Defendant then elected to have his new attorney try the case, while retaining his initial attorney as co-counsel. Noting that the defense had failed to timely provide an expert report, the judge barred Dr. Saferstein's testimony.
Defendant's appendix includes a copy of Dr. Saferstein's report, dated January 21, 2013, and a cover letter dated February 13, 2013, from defense counsel to the municipal prosecutor enclosing a copy of the expert report.
Defendant's new attorney had filed a series of motions two days before the trial date, including a motion to suppress evidence. The judge allowed the late filing, and conducted a hearing on defendant's suppression motion. Sergeant Michelle Chennels of the Piscataway Police Department testified that she stopped defendant's vehicle because he was driving erratically, and that a computer check revealed that the vehicle's owner was suspended. She noted defendant's hand movements were fumbling, his speech was garbled, and she detected an odor of alcohol coming from within the vehicle. Based on her training and experience, she concluded that defendant appeared intoxicated.
Officer Thomas Slover responded to the scene, and administered two field sobriety tests to defendant, the heel-to-toe test and the one-leg-stand test. Officer Slover deemed defendant's performance on the tests unsatisfactory. The court also viewed a video of the testing, and on several occasions noted that defendant lost his balance, and "almost fell over." Officer Slover also detected the odor of alcohol, and described defendant's eyes as bloodshot, watery, and droopy. Like Sgt. Chennels, Officer Slover opined that defendant was under the influence of alcohol.
Defense witness Mahesh Rajan testified at the suppression hearing that he met defendant after work and accompanied him to a pub in New Brunswick around 6 or 6:30 p.m. While there, Rajan observed defendant consume a Coors Light beer. Rajan left the bar around 7:30 p.m. Defendant remained, and Rajan did not see him again until he was called to pick defendant up at police headquarters following his arrest.
Defendant testified that he left the New Brunswick pub around 9:30 — 9:45 p.m. While there, he ate dinner and had three or four Coors Light beers. He stated that when he left, his throat was bothering him, and he was having difficulty breathing, for which he sought medical attention the following morning. According to defendant, he was stopped by police around 10:15 p.m. He did not feel he was under the influence, and attributed his poor performance on the field tests to an ankle injury he sustained some two-and-a-half-years earlier.
At the conclusion of the hearing, the court denied defendant's motion to suppress, finding the initial stop of the vehicle lawful, and that probable cause existed for defendant's arrest. The judge noted Sgt. Chennels' observations of defendant's erratic driving, as well as his speech, fumbling for credentials, and odor of alcohol. Additionally, the computer look-up identified the registered owner of the vehicle as a suspended driver. The judge cited defendant's testimony that he had consumed three to four beers, and reiterated his own observations of defendant losing his balance on the video. The judge found both officers credible. In contrast, he did not find defendant's testimony credible, noting that the officers stopped his vehicle at 11:22 p.m., not 10:15 as defendant recounted. Also, the judge observed on the video that defendant walked without any sign of injury, contradicting his testimony that he was affected by an old ankle injury.
After the court ruled, defense counsel again moved to recuse the judge from hearing the remainder of the trial. The court denied the motion, again citing Medina. Due to the lateness of the hour, the court continued the trial to April 4, 2013, a date selected in order to accommodate the schedules of both the municipal prosecutor and defense counsel.
In the interim, defendant sought leave to appeal to the Law Division from the municipal court's orders barring Dr. Saferstein's testimony, denying new defense counsel additional time to prepare, and denying defendant's recusal motion. On March 21, 2013, Judge Joseph A. Paone allowed Dr. Saferstein to testify at trial. The court's order noted that Dr. Saferstein's testimony was not to be barred because of his late report, but left open that it could be barred for other reasons. Judge Paone also denied the request to disqualify the municipal judge, and declined to extend the trial date.
The record does not include a copy of defendant's motion for leave to appeal, the State's response, or a transcript of the hearing on the motion.
Trial continued in the municipal court on April 4, 2013. Defendant requested another adjournment, on the basis that Dr. Saferstein was attending a conference out of state on April 4 and 5. The municipal judge denied the adjournment, indicating that the case was then a year old, and that this was the third peremptory trial date, which had been agreed upon in court with defendant and all counsel present. The judge also referred to a letter he received indicating that Dr. Saferstein would not be available to testify until the end of May.
Defendant's appendix includes an April 2, 2013 letter from defense counsel to the court and municipal prosecutor advising of Dr. Saferstein's unavailability and requesting an adjournment of unspecified duration.
Counsel agreed, with defendant's consent, that the prior testimony from the suppression hearing would be incorporated for purposes of trial, except for defendant's testimony which was excluded. The State re-called Sgt. Chennels, who added that defendant passed through multiple school zones while operating his vehicle. Officer Slover testified at trial about his attempts to administer the Alcotest, during which defendant constantly gave a forced cough, burped several times, failed to blow properly into the machine, and was otherwise non-compliant with the officer's instructions, thus resulting in the refusal charge. Officer Slover further stated that, after being administered Miranda warnings, defendant alternately admitted having consumed "four to five beers" and "three to four beers."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant did not testify and presented no other witnesses on his behalf. The municipal judge found the testimony of both officers clear and precise. His own observation of the video confirmed Sgt. Chennels' description of defendant's driving as erratic, and Officer Slover's testimony regarding defendant's poor performance on the field sobriety tests. The judge also found that defendant failed to give the required breath samples after being read the proper warnings. He found defendant guilty of DWI and DWI in a school zone, refusing the breath test, and driving while suspended, and imposed sentence.
Defendant appealed to the Law Division. The matter came before Judge Alberto Rivas for de novo review. Defendant raised the following issues before the Law Division: (1) the municipal judge should have recused himself; (2) Dr. Saferstein was not permitted to testify at the suppression hearing; (3) defendant was improperly sentenced as having had three prior DWI convictions; (4) defendant was not provided a copy of the Alcohol Influence Report; (5) defendant provided valid breath samples, thus warranting reversal of the refusal conviction; (6) his adjournment request was improperly denied; and (7) ineffective assistance of counsel.
Judge Rivas rejected defendant's arguments in a comprehensive eighteen-page written opinion. Pertinent to the present appeal, Judge Rivas similarly relied on Medina, supra, in concluding that recusal of the municipal judge was not warranted. He also found no evidence that original counsel was ineffective.
Addressing defendant's argument that Dr. Saferstein should have been allowed to testify at the suppression hearing, Judge Rivas reasoned:
There was no specific application by [defendant] to have him testify at the suppression hearing. No proffer was made as to how the expert's testimony would be relevant on the issue of probable cause. The suppression hearing took place on March
13th, the same day the judge ruled the Dr. Saferstein would not be permitted to testify in the case in chief. This basis for reversal is denied. The issue of the expert's testimony at the trial in chief will be discussed later in this opinion.
Finally, Judge Rivas gave a lengthy, detailed analysis of his reasons for rejecting defendant's argument that the municipal judge erred in refusing to adjourn the trial date so that Dr. Saferstein could testify:
The last issue raised by [defendant] involves the preclusion of his expert from testifying at trial. On this issue, it is important to review the chronology of this case. The offense took place on April 6, 2012. There was a hiatus in the proceedings because the matter was reviewed by the county prosecutor's office to determine the applicability of N.J.S.A. 2C:40-26. The matter was remanded to the municipal court and conferenced on November 15, 2012. During the conference, an Order was entered requiring the expert reports to be produced in two weeks' time. This Order was a consent Order, notwithstanding that, the Order was not complied with by [defendant]. On December 19, 2012, with no report having been provided by [defendant's] expert, the municipal court judge barred the introduction of any expert report on behalf of [defendant]. No appeal was taken of this decision.
On January 19, 2013, [defendant] attempted to plead guilty. He withdrew the plea upon learning that the court was going to treat the case as [his] third DWI; it should be noted that it was [defendant's] third DWI. A trial date of February 21, 2013 was scheduled.
The parties reconvened on February 27, 2013. [Defendant's] counsel moved to recuse the municipal court judge on the grounds that he took the aborted plea, which motion was denied [sic]. [Defendant's] counsel then moved to adjourn the trial based on the delay due to the county[] prosecutor's review of the matter. [Defendant] also sought an adjournment to permit his expert to testify, and to have time to file a motion in another court to negate the effect of [his] first DWI conviction. It should be noted that [defendant's] counsel on February 27th was the same lawyer who represented him on his second DWI. The record is devoid of any motion to vacate his first DWI conviction in his second DWI case. [Defendant's] counsel stated on February 27th that such a motion was not filed because he was sentenced as a first time offender in 2011. The municipal court judge granted [defendant's] motion for adjournment, but ruled that discovery was closed and no further adjournments would be granted. The court rescheduled the case for March 13, 2013 and set it as a peremptory trial date.
On March 11, 2013, two days before trial, [defendant] moved to substitute his trial counsel. [Defendant's] new counsel promptly requested yet another adjournment. On March 13, 2013, the parties appeared before the court and the court placed on the record its willingness to allow the substitution of counsel conditioned upon new counsel being ready to try the case. [New counsel] represented that he had received all the discovery materials prior to the peremptory trial date. The court pointed out that on February 27th it informed the parties that there would be no further adjournments in this case. Based on [new counsel's] representation of readiness, the court permitted [defendant] to have co-counsel for the March 13th hearing date.
The next issue addressed was the status of [defendant's] expert. An expert report was provided, but it is unclear from the record when exactly it was provided other than it was produced some time after the Order barring it. It was, however, resubmitted to the prosecutor on March 11th when [new counsel] attempted to substitute in the case. The court restated it was not going to allow the report or Dr. Saferstein's testimony.
A suppression hearing was thereafter conducted. Two police officers testified for the prosecution. [Defendant] and a witness testified on behalf of [defendant]. The issues were the initial motor vehicle stop of [defendant] and whether probable cause existed to detain [defendant] and require him to provide breath samples. The motion was denied. This [c]ourt sees no basis to disturb that finding.
Following the March 13th suppression hearing, a second peremptory trial date was scheduled for April 4, 2013 after consulting all counsel . . . . On March 21st, the Superior Court issued an Order allowing [defendant's] expert to testify, notwithstanding the late submission of his report. In [defendant's] form of Order submitted to the Superior Court, he included a provision seeking an adjournment of the April 4, 2013 trial date. That request was denied and crossed out by the Superior Court Judge. The attorneys for [defendant] were both aware that April 4th was a peremptory trial date, agreed to by them on the record. The record is devoid of any evidence, prior to April 4th, indicating that [defendant's] expert was not available for that date. Notwithstanding the lack of any notice, defense counsel came to court on the April 4th trial date requesting yet another adjournment on the grounds that
[defendant's] expert was in Boston and was therefore unavailable. Thus, after successfully obtaining the requested relief of having the expert testify at trial, [defendant] inexplicably failed to have his expert ready to proceed on a previously scheduled preemptory trial date. Further, he failed to inform the court of his expert's unavailability until all parties and witnesses were assembled and ready to proceed on the scheduled trial date.
[Defendant's] actions in this case eviscerate his arguments. He failed to abide by the November 2012 scheduling Order, despite the charges being initiated on April 26, 2012. The fact that this matter was reviewed by the County Prosecutor's Office does not excuse [defendant's] failure to be proactive with respect to his defense since the matter was going to go forward in either the municipal court or the Superior Court. [Defendant] knew that the matter was going to trial when he withdrew his guilty plea on January 19, 2013. The matter was scheduled for trial on February 27, 2013. [Defendant] requested and was granted an adjournment on February 27, 2013. At the time, [defendant] was clearly informed that this would be the final adjournment in the matter. On March 11th, [defendant] attempted to substitute counsel for a matter scheduled for March 13th. On March 13th new counsel appear[ed] and [sought] an adjournment, which was denied. On March 21st, [defendant] received an Order from the Superior Court allowing his expert to testify at the trial; even this application was inexpedient in light of the fact that [defendant] was aware, as of February 27th, that his expert witness was barred. After the Superior Court Order, [defendant] failed to advise anyone that his expert was not available until the actual trial date of April 4th, when all the parties, witnesses, and court were ready to convene.
As a general proposition, [c]ourts should err on the side of granting short adjournments in order to allow a defendant to present a defense. See e.g., State v. Dimitrov, 325 N.J. Super. 506, 511-12 (App. Div. 1999), certif. denied 163 N.J. 79 (2000) and State v. Matarama, 306 N.J. Super. 6, 14 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998). However, in this case, the judge properly proceeded to hold the trial in the absence of [defendant's] expert witness.
In reviewing all the facts in their totality, this court finds that [defendant] engaged in gamesmanship and purposeful, dilatory tactics. [Defendant] presented contrived reasons for not being able to go forward with his case despite the opportunities afforded to him by the municipal court. [Defendant] sought to create delay by substituting counsel on the eve of a preemptory trial date and by not making sure his expert was ready to proceed on the next preemptory trial date of April 4th, despite having obtained a court Order from the Superior Court allowing the expert to testify. Any prejudice here was self-inflicted. [Defendant's] objective, as glea[n]ed from the record, was designed to put off and delay the case for as long as possible. When the actions undertaken are designed by a defendant to prevent the action from going forward; he cannot claim prejudice. The municipal Court judge, in this case, worked with [defendant] to accommodate him and [defendant] took advantage of the court. The court was prepared to allow [defendant's] expert to testify. [Defendant] had an Order allowing same and received this Order well in advance of the trial date. This expert was presumably within the control of [defendant] and was not available simply because the expert was either not asked or was unwilling
to adjust his scheduled to accommodate the client and lawyer that retained him to provide testimony. Neither is a valid excuse. [Defendant] requested particular relief, which was granted to him, but he failed to abide by the Order he sought. The request for a reversal for failing to allow [defendant] to present his expert is denied.
II.
Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 157 (1964)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).
Since the Law Division judge is not in a position to judge the credibility of witnesses, he should defer to the credibility findings of the municipal court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
In this case, the Law Division judge clearly understood that his role was to make independent findings; findings that, ultimately, were reflected in his thorough written opinion. However, no such deference is owed to the Law Division or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts. See State v. Handy, 206 N.J. 39, 45 (2011) (stating "appellate review of legal determinations is plenary").
On appeal, defendant essentially reiterates many of the same arguments that he presented to the Law Division. We are satisfied from our review of the record that Judge Rivas applied the correct evidential standard, that his factual findings were clearly supported by competent, credible evidence in the record, and that his legal analysis was correct. We therefore affirm defendant's convictions, substantially for the reasons stated in the judge's thorough written opinion. We add only the following comments.
In Medina, supra, 349 N.J. Super. at 129-30, we rejected defendant's contention that the trial judge erred by failing to recuse himself after adjudicating pretrial motions and reviewing grand jury transcripts. Construing Rule 1:12-1, we ruled that
exposure to inadmissible evidence in the course of pretrial proceedings generally does not require disqualification of the judge even where the judge is to serve as the factfinder. A judge sitting as the factfinder is certainly capable of sorting through admissible and inadmissible evidence without resultant detriment to the decisionmaking process . . . . Trained judges have the ability to exclude from their consideration irrelevant or improper evidence and materials which have come to their attention.
[Medina, supra, 349 N.J. Super. at 130 (citations and internal quotation marks omitted)].
In the present case, while the municipal judge initially accepted defendant's guilty plea, he then permitted defendant to retract it, and was plainly aware that defendant's statements during the plea colloquy could no longer be considered. Similarly, following the suppression hearing, although it was agreed that the prior testimony would be incorporated for purposes of trial, it was clearly acknowledged that defendant's testimony was to be excluded. On that basis, applying Medina, we discern no error in the municipal judge having continued to conduct the trial in this matter.
Defendant argues before us that the municipal judge erred in refusing to "adjourn [the] trial by one day to permit [his] expert to testify." However, we note that, while it was represented that Dr. Saferstein was out of State on the peremptory trial date, there is no competent evidence in the record that he was available to testify the next day, or within a short period thereafter.
"The granting of trial adjournments rests within the sound discretion of the trial court. Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error." State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div) (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)); certif. denied, 58 N.J. 335 (1971). An abuse of discretion only occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (citation and internal quotation marks omitted). Here the judge engaged in a painstaking analysis of the history of the prior adjournments, and concluded that no further delay was warranted. We discern no abuse of discretion.
We decline to consider defendant's claim of ineffective assistance of counsel, which is more appropriately addressed in a post-conviction proceeding. State v. Preciose, 129 N.J. 451, 460 (1992). The evidence necessary to determine that prior defense counsel was ineffective must be developed from evidence outside the record. Ibid.
We also decline to consider defendant's contention, raised for the first time on appeal, that the municipal court erred in conducting case management conferences off the record, without defendant being present. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). "[A]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" Id. at 386; R. 2:10-2.
III.
Finally, we address defendant's challenges to his sentence which, we note, were not raised before Judge Rivas. Specifically, defendant now argues that the court failed to carefully weigh the aggravating and mitigating factors, and that the penalties for DWI, DWI in a school zone, and refusing the breath test, should have merged.
Initially we note that our review is hampered by defendant's failure to include in his appendix an abstract of his driving history upon which the court relied in imposing sentence. We first address defendant's contention that the penalties for the DWI and refusal offenses should have merged, and that he should not have received a twenty-year license suspension on the refusal conviction. The refusal statute allows the period of license suspension to run either concurrently or consecutively with a license suspension imposed on a related DWI conviction. N.J.S.A. 39:4-50.4a(a). However, the court's discretion to run the license suspensions concurrently applies only to first offenders. For a second or subsequent offense, the statute mandates that the suspension periods be imposed consecutively. Ibid. If, as it appears, defendant is a third DWI offender, the suspensions must be served consecutively, and defendant's argument to the contrary must be rejected. Moreover, since the license suspension periods for second and subsequent DWI and refusal offenders are mandatory under N.J.S.A. 39:4-50 and 39:4-50.4a, respectively, the analysis of aggravating and mitigating factors would play no role in their imposition.
We note that a previous conviction for DWI, N.J.S.A. 39:4-50, serves to enhance the sentence for a subsequent conviction for refusal, N.J.S.A. 39:4-50.4a. State v. Frye, ___ N.J. ___ (2014).
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We next consider defendant's argument that the penalties for DWI and DWI in a school zone should have merged. Here, we note that defendant was convicted of both offenses. For sentencing purposes, the DWI was merged into the school zone offense, and defendant was given the enhanced penalties applicable to a third offender under N.J.S.A. 39:4-50(g).
In order to qualify as a third or subsequent offender in a school zone case, defendant must have previously been convicted of at least two violations of N.J.S.A. 39:4-50(g). See State v. Reiner, 180 N.J. 307, 318 (2004). Moreover, merger of separate DWI and school zone offenses under N.J.S.A. 39:4-50(a) and (g) has been construed as requiring defendant to be sentenced in accordance with the highest penalties that apply to him. Reiner, supra, at 319. By implication, the same result should attach with respect to the enhanced school zone penalties under the refusal statute, N.J.S.A. 39:4-50.4a(b).
The record in this case indicates only that defendant has two prior DWI convictions. Without an abstract, we are unable to ascertain whether those convictions involved violations of either subsection (a) or (g) of the DWI statute. If the prior convictions were for school zone offenses, then defendant was properly given enhanced penalties for the school zone offenses here. However if, for example, both of defendant's prior DWI convictions involved violations of N.J.S.A. 39:4-50(a), then his conviction here would constitute a third violation under that subsection, but only a first school zone offense under subsection (g). Applying Reiner, since the third offense penalties under N.J.S.A. 39:4-50(a) are more severe, defendant would be sentenced under that subsection, into which the sentence on the first school zone offense would then merge. Similar principles would guide defendant's sentencing under the refusal statute. On remand, we direct the trial court to undertake an analysis of defendant's driving history and the nature of his prior DWI convictions, and to reconsider defendant's sentence in light of the principles expressed above.
IV.
Affirmed. Remanded for reconsideration of sentence on the DWI, DWI in a school zone, and refusal convictions only. We do not retain jurisdiction.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION