State v. Damiano

• Decision Date: 06 May 1976
• Citation: 142 N.J.Super. 457,361 A.2d 631
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Steven L. DAMIANO, Defendant-Appellant.
• Court: New Jersey County Court

Page 457

142 N.J.Super. 457

361 A.2d 631

STATE of New Jersey, Plaintiff-Respondent, v. Steven L. DAMIANO, Defendant-Appellant.

Morris County Court Law Division, New Jersey.

May 6, 1976.

R. Scott Rosmarin, Dover, for plaintiff-respondent.

Thomas R. O'Brien, Morris Plains, for defendant-appellant (Harper, McCoy & O'Brien, Morris Plains, attorneys).

HELFRICH, J.C.C.

Defendant-Appellant, age 17, was adjudicated guilty in the Madison Municipal Court of violating N.J.S.A. 39:4--50(a).

Before the start of the municipal court trial defendant moved for dismissal of the complaint on the ground that the applicable statute was unconstitutional as it applies to offenders under the age of 19. The municipal judge declined to rule on the validity of the statute and proceeded to trial, resulting in a conviction and the suspension of driving privileges until defendant reaches the age of 21.

A notice of appeal was filed, but a stay of the sentence was not sought. Defendant brings this appeal solely on the ground that N.J.S.A. 39:4--50(a) operates to deny him equal protection of the laws under the United States and New Jersey State Constitutions. A trial De novo was specifically waived.

All appeals from municipal court are to the County Court, R. 3:23--1, except in extraordinary circumstances where leave to appeal to the Appellate Division is granted under R. 2:2--3(b). See State v. Yaccarino, 3 N.J. 291, 70 A.2d 84 (1949), and State v. Buchan, 119 N.J.Super. 297, 29 A.2d 377 (App.Div.1972).

At the municipal court trial defendant raised the defense of the unconstitutionality of the statute under R. 7:4--2(e). That defense may only be raised by motion before trial or within ten days after verdict, Or on appeal. See R. 3:23--8(d) applying R. 3:10--3.

Although defendant might have taken an interlocutory appeal to the County Court under R. 7:4--2(e) and R. 3:24 he now raises the defense on appeal, waiving review of municipal court proceedings by a trial De novo.

Because a ruling as to the constitutionality of the statute would be dispositive of the appeal (defendant having impliedly acceded to his conviction under the statute), a waiver of a trial De novo is appropriate.

The statute in question states in relevant part:

A person who operates a motor vehicle while under the influence of intoxicating liquor * * * shall be subject for the first offense, to a fine not less than $200.00 nor more than $500.00, or imprisonment for a term of not less than 30 days nor more than 3 months or both . . . and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of 2 years from the date of his conviction Or until he reaches the age of 21 years, whichever is the greater period of time, in the case of a person who at the time of his conviction is under the age of 21 years. (N.J.S.A. 39:4--50(a); emphasis supplied)

It is clear from the statute that persons violating it, at ages 17 or 18, are subject to revocation of driver's license for a period of four and three years, respectively, while offenders over the age of 18 will suffer forfeiture of driving privileges for only two years.

Prior to trial of this matter defendant, through his attorney, sought to have jurisdiction retained by the Juvenile Court of Morris County. The requests were denied.

While the State contends that the statute under attack is not unconstitutional, it takes the somewhat unusual position that 'the statute has its problems.' The State does not insist that defendant must suffer a greater disability for a violation of N.J.S.A. 39:4--50(a) than persons 19 years of age or older, and urges upon this court the theory that the recent Age of Majority Act, N.J.S.A. 9:17B--1 Et seq. (lowering the age of majority to 18 years), supercedes N.J.S.A. 39:4--50(a) to the extent they may be inconsistent, citing N.J. State PBA v. Morristown, 65 N.J. 160, 320 A.2d 465 (1974). It is the State's further allegation that such supercession results in the severance and nullification of the sentencing phrase in the statute concerning offenders under the age of 21 years, to wit; 'or until he reaches the age of 21 years, whichever is the greater period of time, in the case of a person who at the time of his conviction is under the age of 21 years.' N.J.S.A. 39:4--50(a).

This court will first turn its attention to the defense of unconstitutionality.

It is well settled that a presumption of constitutionality attends all legislation. Absent a sufficient showing to the contrary, the courts must assume that a statute under attack rests upon some rational basis within the knowledge and experience of the Legislature. Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968); Fried v. Kervick, 34 N.J. 68, 167 A.2d 380 (1961). Inferior courts have been specifically charged to uphold an act of the Legislature 'unless it so clearly conflicts with the Constitution as to leave no reasonable doubt of its defectiveness.' State v. Cannarozzi, 77 N.J.Super. 236, 186 A.2d 113 (App.Div.1962). In State v. Smith, 58 N.J. 202, 276 A.2d 369 (1971), the court said:

* * * As a general proposition the courts will not interfere with the prescribed form of penalty unless it is so clearly arbitrary and without rational relation to the offense as to transgress the Federal and State constitutional prohibitions against excessive fines or cruel and unusual punishment. U.S.Const. Amend. VIII; N.J.Const. Art. I, Sec. XII. Ordinarily the Legislature is in a better position than the Courts to know the area in which an evil should be met and to make a decision as to the means of meeting it. And as we have said, the courts will not interfere with the legislative evaluation either as to the classification of offenders selected for separate treatment or as to the penalty prescribed for them, unless it is clearly constitutionally indefensible * * *.

The court in State v. Smith, enunciated the general test used to prove the validity of statutory criteria Vis a vis the principle of equal protection:

* * * If there is some reasonable basis for the recognition of separate classes, and if the disparate treatment of the classes has a rational relation to the object sought to be achieved by the lawmakers, the Constitution is not offended. The transgression arises only when the classification rests upon grounds wholly irrelevant to achievement of the State's objective; the separate treatment must admit of but one conclusion beyond a rational doubt, i.e., that the basis therefore is arbitrary and unreasonable and without relevance to the legislative goal * * * (at 207, 276 a,2d at 371)

The term best applied is the 'rational basis' test. See also, Robson v. Rodriquez, 26 N.J. 517, 141 A.2d 1 (1958), and Guill v. Hoboken Mayor and Council, 21 N.J. 574, 122 A.2d 881 (1956).

Defendant makes numerous references, both in his brief and at argument, to the 'compelling state interest' test. This strict standard is applied when a classification serves to penalize the exercise of a fundamental right and/or when the criteria used are 'suspect.' Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

In Bechler v. Parsekian, 36 N.J. 242, 176 A.2d 470 (1961) with regard to a license to operate a motor vehicle, our Supreme Court considered as wholesome the modern trend, namely, that in today's society a license to operate an automobile may be of vital significance and value to the licensee and may not be taken away except by due process. This court can find no basis upon which age, Per se, is a 'suspect' classification--one which on its face indicates arbitrary distinction lacking rational basis. Our Supreme Court has suggested that it would consider a classification drawn on racial, ethnic, national or religious basis as 'suspect.' State v. Young, 57 N.J. 240, 271 A.2d 569 (1970).

As was stated in Wurtzel v. Falcey, 69 N.J. 401, 354 A.2d 617 (1976):

* * * To test the power to establish an age qualification by the 'compelling interest' standard is really to deny a State any choice at all, because no State could demonstrate a 'compelling interest' in drawing the line with respect to age at one point rather than another. Oregon v. Mitchell, supra, 400 U.S. 112 at 294, 91 S.Ct. 260, at 349, 27 L.Ed.2d 272 at 379 (separate opinion of Stewart, J.) Rather, the power to establish an age requirement necessarily...