Opinion
DOCKET NO. A-6118-12T4
12-15-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH POLLINA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 1401-60555. Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Joseph Pollina appeals from a July 26, 2013 sentence to eleven days county jail time imposed pursuant to a negotiated guilty plea to driving while suspended, N.J.S.A. 39:3-40. We affirm.
We also dissolve the stay of the jail sentence.
The plea agreement also called for dismissal of the indicted charge of fourth-degree driving while suspended, N.J.S.A. 2C:40-26. Before engaging in the plea colloquy, Judge Stuart A. Minkowitz advised counsel, in defendant's presence on the record, that the option of jail service in the sheriff's labor assistance program (SLAP) was not authorized by the driving-while-suspended statute. Defendant nonetheless proceeded to establish under oath his knowing, intelligent, and voluntary plea to the offense. See R. 3:9-3(b). At sentencing, the judge also relied upon State v. Luthe for his interpretation of the statute as barring service of jail time in SLAP. 383 N.J. Super. 512 (App. Div. 2006). He stayed defendant's incarceration pending resolution of this appeal.
Defendant was first convicted of driving while suspended on July 28, 1999. On September 29, 2008, he was convicted of driving while intoxicated, N.J.S.A. 39:4-50. He was convicted of the same offense a second time on January 11, 2013. This incident occurred in Boonton on February 7, 2013, when defendant operated his motor vehicle knowing that his privileges had been suspended after his second driving-while-intoxicated conviction.
The statute, N.J.S.A. 39:3-40, prohibits a person whose privileges have been suspended from driving. Subsection (f)(2) further provides:
[A]ny person violating this section under suspension issued pursuant to R.S. 39:4-50, § 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 [ten] days or more than [ninety] days.
The language construed in Luthe, drawn from N.J.S.A. 39:4-50(a)(3), refers to the imposition of a sentence "in a county jail or workhouse[.]" The language at issue here is identical. Those convicted of a violation under circumstances similar to this defendant "shall be imprisoned in the county jail[.]" N.J.S.A. 39:3-40. As we said in Luthe, "the language is clear. Confinement . . . is required. There is no allowance for non[-]custodial alternatives." 383 N.J. Super. at 514; accord State v. French, 437 N.J. Super. 333, 338-39 (App. Div. 2014). Such non-custodial alternatives include SLAP. We therefore agree with the Law Division judge that the eleven-day sentence imposed under N.J.S.A. 39:3-40(f)(2) must be served in the county jail facility.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION