State v. Anicama

• Decision Date: 13 July 2018
• Docket Number: DOCKET NO. A-0452-16T4
• Citation: 455 N.J.Super. 365,190 A.3d 474
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Pedro C. ANICAMA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

455 N.J.Super. 365

190 A.3d 474

STATE of New Jersey, Plaintiff-Respondent,

v.Pedro C. ANICAMA, Defendant-Appellant.

DOCKET NO. A-0452-16T4

Superior Court of New Jersey, Appellate Division.

Argued December 19, 2017

Decided July 13, 2018

Anthony R. Draucikas, Fairfield, argued the cause for appellant (The Draucikas Law Firm, LLC, attorneys; Anthony R. Draucikas, on the brief).

Stephanie Davis Elson, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Frances Tapia Mateo, Assistant Prosecutor, on the brief).

Before Judges Yannotti, Carroll, and Leone.

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Pedro C. Anicama appeals from the Law Division's August 16, 2016 order. He received the mandatory 180-day sentence for his third or subsequent conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a)(3). The Municipal Court allowed him to serve his sentence by being in jail only two days a week, a form of periodic service. The Law Division reversed. Despite prior decisions by this court, it is apparently "not entirely clear whether a third or subsequent offender's mandatory prison term may be served on a periodic basis." Richmond & Burns, Municipal Court Practice § 29:3-3 (2017) (citing State v. Grabowski, 388 N.J. Super. 431, 908 A.2d 861 (Law Div. 2006) ). We disapprove Grabowski and hold that a third or subsequent DWI offender is ineligible for periodic service of the mandatory 180-day sentence. Accordingly, we affirm the Law Division.

I.

In his guilty plea colloquy, defendant admitted the following facts. On the evening of May 10, 2015, he consumed beer and a shot of scotch whiskey. The alcohol affected his ability to drive. As a result, defendant hit a parked car in the Town of Harrison and continued driving. He drove into the Borough of East Newark, and hit another parked car, and again kept driving to his house. When he parked at his home, police officers approached and arrested him. The officers found cocaine and a half-empty bottle of scotch whiskey in defendant's car. Defendant had three prior convictions for DWI, and a prior conviction for controlled substances.

Defendant was charged in East Newark with DWI; third-degree possession of a controlled dangerous substance; leaving the scene of an accident; failing to report an accident; reckless driving; careless driving; and having an open container of alcohol in a vehicle. He was charged in Harrison with leaving the scene of an accident. The charges were consolidated in the East Newark Municipal Court.

On March 10, 2016, defendant pled guilty in the Municipal Court to a third or subsequent DWI violation, N.J.S.A. 39:4-50(a)(3) ; disorderly-persons possession of drug paraphernalia, N.J.S.A. 2C:36-2 ; leaving the scene of an accident, N.J.S.A. 39:4-129(d) ; and careless driving, N.J.S.A. 39:4-97. Pursuant to the plea agreement, the other charges were dismissed, and he was sentenced to ten years' loss of driving privileges and 180 days of incarceration for the DWI charge, a suspended 180-day jail sentence and one year of probation for the paraphernalia offense, plus fines and other monetary assessments for those offenses, for leaving the scene, and for careless driving.

Defendant requested that the 180 days in jail for his DWI offense be served two days per week. He claimed serving his sentence continuously would result in the loss of his restaurant business. The Municipal Court found it had authority to allow such periodic service under N.J.S.A. 2B:12-22. The judge ordered defendant to serve the 180 days "at a rate of not less than two consecutive days per week," with his "work schedule to be accommodated to the extent possible." Defendant began serving his sentence on Mondays and Tuesdays only.

The State appealed the "illegal sentence" on the DWI offense. After hearing argument, the Law Division issued a written opinion on August 26, 2016, reversing the Municipal Court. The Law Division ruled "[d]efendant's argument that periodic service is permissible pursuant to N.J.S.A. 39:4-50(a)(3) is without merit," and ordered defendant to surrender and serve the remainder of his sentence on consecutive days. Defendant appeals.¹

II.

Defendant raises an issue of statutory interpretation. " ‘[B]ecause statutory interpretation involves the examination of legal issues,’ " we apply " ‘a de novo standard of review applies.’ " State v. Nance, 228 N.J. 378, 393, 157 A.3d 439 (2017) (citation omitted). We must hew to that standard of review.

A court's responsibility "is to give effect to the intent of the Legislature." To do so, we start with the plain language of the statute. If it clearly reveals the Legislature's intent, the inquiry is over. If a law is ambiguous, we may consider extrinsic sources including legislative history. We also look to extrinsic aids if a literal reading of the law would lead to absurd results.

[ State v. Harper, 229 N.J. 228, 237, 160 A.3d 1281 (2017) (citations omitted).]

III.

The general statutes governing Municipal Courts provide that "[a] court may order that a sentence of imprisonment be served periodically on particular days, rather than consecutively. The person imprisoned shall be given credit for each day or fraction of a day to the nearest hour actually served." N.J.S.A. 2B:12-22. The issue is whether this general statute applies to defendants convicted of third or subsequent DWI violations under N.J.S.A. 39:4-50(a)(3). To decide this issue, we must review the changes regarding the jail term for third or subsequent DWI offenses made effective January 20, 2004 by "Michael's Law," L. 2003, c. 315.²

Michael's Law made the following pertinent amendments to the existing statutes, with the additions and [deletions]. First, Michael's Law amended N.J.S.A. 39:4-50(a)(3) :

For a third or subsequent violation, a person ... shall be sentenced to imprisonment for a term of not less than 180 days in a countyjail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served [performing community service in such form and on such terms as the court shall deem appropriate under the circumstances] participating in a drug or alcohol inpatient rehabilitation program...

[ N.J.S.A. 39:4-50(a)(3) (1993) & (2018).]

Second, Michael's Law amended an unnumbered paragraph of N.J.S.A. 39:4-50(a) :

A court that imposes a term of imprisonment for a first or second offense under this section may sentence the person so convicted to the county jail, to the workhouse of the county wherein the offense was committed, to an inpatient rehabilitation program or to an Intoxicated Driver Resource Center or other facility ....

[ N.J.S.A. 39:4-50(a) (1993) & (2018).]

Finally, Michael's Law amended N.J.S.A. 39:4-51 :

A person who has been convicted of [violating] a first or second violation of section 39:4-50 of this Title, and in pursuance thereof has been imprisoned in a county jail or workhouse in the county in which the offense was committed, shall not, after commitment, be released therefrom until the term of imprisonment imposed has been served. A person imprisoned in the county jail or workhouse may in the discretion of the court, be released on a work release program.

No warden or other officer having custody of the county jail or workhouse shall release therefrom a person so committed, unless the person has been released by the court on a work release program, until the sentence has been served. A person sentenced to an inpatient rehabilitation program may upon petition by the treating agency be released, by the court, to an outpatient rehabilitation program for the duration of the original sentence.

[ N.J.S.A. 39:4-51 (1977) & (2018).]

Defendant argues that, unlike persons convicted of "a first or second" DWI violation, persons convicted of third or subsequent DWI violations need not be confined "until the term of imprisonment imposed has been served." Ibid. That literal reading has no basis in the legislative history, and produces absurd results.

The bill that became Michael's Law was introduced into the Assembly. A. 3342 (Feb. 13, 2003) [Original Assembly Bill ].³

The Assembly Law and Public Safety Committee adopted a committee substitute. Assemb. Comm. Substit. for A. 3342 (Mar. 10, 2003) [Assembly Committee Substitute ]. The Senate Law and Public Safety and Veterans' Affairs Committee amended the Assembly Committee Substitute. Assemb. Comm. Substit. for A. 3342 (first reprint Nov. 24, 2003) [Senate Committee Amended Bill ].⁴ The amended version was unanimously passed by the Senate, unanimously passed by the Assembly on January 12, 2004, and was signed by the Governor. Governor's Official Press Release (Jan. 20, 2004) [Governor's Statement ].⁵

The bill was known as Michael's Law "in memory of Michael Albano, a 19-year old from Vineland who was killed by a drunk driver in December 2001. The offender had four previous drunk driving convictions." Sponsors' Statement appended to A. 3342 53 (Feb. 13, 2003) [Sponsors' Statement ]. The statutory language and legislative history show Michael's Law "enhances penalties for third and subsequent [DWI] offenses." Governor's Statement at 1. As Governor McGreevey explained: " ‘Statistics show multiple DWI offenders are one of the most difficult groups to stop from drunk driving .... Michael's Law will keep third-time DWI offenders off the streets, even if they won't keep themselves off the streets. It will guarantee they spend time in jail.’ " Ibid.

First, Michael's Law sought to make third or subsequent DWI offenders spend 180 days in jail, with the only exception being up to ninety days in an inpatient drug or alcohol treatment program. The Original Assembly Bill provided that such a "person shall be sentenced to imprisonment for a term of not less than 180 days, except that the court may lower such term for each day, not exceeding 90 days, of participation in a rehabilitation program for drug and alcohol dependent persons." Id. at 2.⁶ The...