State v. Frank

• Decision Date: 29 March 2016
• Docket Number: DOCKET NO. A-0832-13T1
• Citation: 445 N.J.Super. 98,136 A.3d 429
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Louise FRANK, Defendant–Appellant.
• Court: New Jersey Superior Court — Appellate Division

445 N.J.Super. 98

136 A.3d 429

STATE of New Jersey, Plaintiff–Respondent

v.Louise FRANK, Defendant–Appellant.

DOCKET NO. A-0832-13T1

Superior Court of New Jersey, Appellate Division.

Argued March 3, 2015.

Decided March 29, 2016.

Philip Nettl, New Brunswick, argued the cause for appellant (Benedict and Altman, attorneys; Mr. Nettl, on the brief).

Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).

Before Judges MESSANO, OSTRER and SUMNERS.

The opinion of the court was delivered by

SUMNERS, JR.

, J.A.D.

A jury found defendant Louise Frank guilty of fourth-degree leaving the scene of a motor vehicle accident involving serious bodily injury, N.J.S.A. 2C:12–1.1

.¹ The judge, thereafter, found defendant guilty of leaving the scene of a motor vehicle accident resulting in injury, N.J.S.A. 39:4–129(a). At sentencing, the trial court ordered that the motor vehicle violation merged into the crime, but that the penalties survived merger.² Defendant was sentenced to a four-year term of probation on the N.J.S.A. 2C:12–1.1

offense, but the court determined that a custodial sentence of 180 days was mandated by N.J.S.A. 39:4–129(a).

Defendant appealed, arguing:

POINT I

THE CUSTODIAL PORTION OF DEFENDANT'S SENTENCE SHOULD BE VACATED, BECAUSE THE TRIAL COURT MISINTERPRETED N.J.S.A. 39:4–129(a)

BY FINDING THAT INCARCERATION WAS MANDATORY.

POINT II

DEFENDANT'S CONVICTION FOR N.J.S.A. 39:4–129(a) SHOULD MERGE INTO HER CONVICTION FOR N.J.S.A. 2C:12–1.1.

We have reviewed the contentions advanced on appeal, and in light of the record and applicable law, we reverse and remand for resentencing. The trial court correctly determined that the motor vehicle violation, N.J.S.A. 39:4–129(a)

, merged into the offense under the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:12–1.1. While mandatory penalties imposed by the motor vehicle provision survive merger, the trial court erred in concluding that N.J.S.A. 39:4–129(a) mandates a custodial sentence.

I.

Considering that the primary challenge before us involves interpreting a motor vehicle statute's sentencing requirements, a lengthy discussion of the record is unnecessary. Suffice it to say that on March 30, 2009, defendant was driving her vehicle in her neighborhood when she got into an altercation with two women who were walking their dogs. Defendant was accused of driving her vehicle into one of the women, injuring her, and leaving without waiting for the police. Consequently, defendant was charged that same day with the following motor vehicle offenses: reckless driving, N.J.S.A. 39:4–96

; failure to report an accident, N.J.S.A. 39:4–130 ; and leaving the scene of an accident, N.J.S.A. 39:4–129(a).

Defendant was later indicted for second-degree aggravated assault, N.J.S.A. 2C:12–1(b)(1)

(count one); fourth-degree assault by auto, N.J.S.A. 2C:12–1(c)(1) (count two); and fourth-degree leaving the scene of an accident involving serious bodily injury, N.J.S.A. 2C:12–1.1 (count three).³ At trial, a jury found defendant guilty of count three, but was unable to reach a verdict on counts one and two. After retrial resulted in another hung jury and mistrial, defendant's motion to bar a third trial was granted and the unresolved counts were dismissed with prejudice.

On September 24, 2013, the trial court, relying upon the earlier testimony provided at the jury trial and supplemented with oral argument by counsel, issued a decision on the motor vehicle summonses. Defendant was acquitted of reckless driving, but was found guilty of leaving the scene of an accident and failure to report an accident.

The court then sentenced defendant on all offenses arising from the incident, stating that the criminal offense and motor vehicle violation were merged with the penalties surviving merger. After considering the aggravating and mitigating factors, the court placed defendant on probation for four years, with certain conditions, for the N.J.S.A. 2C:12–1.1

offense. However, the court found that there was a mandatory prison term of 180 days for the N.J.S.A. 39:4–129(a) violation because a victim suffered a bodily injury, and sentenced defendant accordingly. Despite maintaining that the statute was ambiguous regarding the imposition of a prison term, the court determined that the statute's reference to 180 days prison term was a “shall provision” if there was a “finding of a bodily injury.” The court also suspended defendant's driving privileges for a year. However, when recording the sentence and penalties on the motor vehicle summons, the court did not note that the violation merged with the criminal offense. The judgment of conviction (JOC) also failed to indicate the merger.

Defendant's request to stay the custodial portion of the sentence was granted so that defendant may perfect appeal and make an application for bail.⁴ This appeal followed.

II.

Before us, defendant contends that the trial court erred by finding that incarceration is required when a defendant is convicted under N.J.S.A. 39:4–129(a)

for leaving the scene of a motor vehicle incident involving bodily injury to another. We agree.

The statute provides:

The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible.... Any person who shall violate this subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned for a period of 180 days, or both. The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section.

In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State.

[Ibid. ]

Specifically, defendant maintains that the statute's plain language grants the court discretion to impose a custodial sentence only in cases where there is an injury of another person. Defendant also argues that there is nothing in the statute's legislative history indicating the Legislature's intention to impose a mandatory term of incarceration.

The last sentence of the subsection's first paragraph was added by a 1994 amendment which increased penalties. Defendant cites the Sponsor's Statement, stating: “The bill provides that the term of imprisonment shall be imposed only if a person other than the driver was killed or injured.” L. 1994, c. 183. Defendant maintains that the Statement “never says that term of imprisonment was becoming mandatory in any situation.” Further, defendant contends that if there is some ambiguity over whether the statute requires a mandatory jail term if someone else is injured, under the rule of lenity, the statute is construed strictly and interpreted in favor of a criminal defendant, and would not result in an interpretation calling for imprisonment. State v. Livingston, 172 N.J. 209, 218, 797 A. 2d 153 (2002)

.

The State, also relying upon the plain language of N.J.S.A. 39:4–129(a)

, argues that the court properly interpreted the statute, and mandatorily sentenced defendant to 180 days in prison because her accident injured someone. The State relies upon the same Sponsor's Statement cited by defendant to support its position that imprisonment is only mandatory where the accident resulted in death or injury to a person other than the driver.

Our scope of review of the findings made by a judge after a bench trial is limited. State v. Locurto, 157 N.J. 463, 470–71, 724 A. 2d 234 (1999)

(citing State v. Johnson, 42 N.J. 146, 161–62, 199 A. 2d 809 (1964) ). However, where issues on appeal turn on interpretation of the law, there is no deference to the determinations of the trial court, and our review is de novo. State v. Gandhi 201 N.J. 161, 176, 989 A. 2d 256 (2010) ; see also

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A. 2d 1230 (1995) (We owe no deference to the trial court's “interpretation of the law and the legal consequences that flow from established facts.”).

The principles governing statutory interpretation are well-established. Our goal is to determine and effectuate the Legislature's intent. State v. Olivero, 221 N.J. 632, 639, 115 A. 3d 1270 (2015)

. We begin with examining the plain language of the statute. State v. Munafo, 222 N.J. 480, 488, 120 A. 3d 170 (2015) (citing State v. Frye, 217 N.J. 566, 575, 90 A. 3d 1281 (2014) ); Gandhi, supra, 201 N.J. at 161, 989 A. 2d 256. “It is a basic rule of statutory construction to ascribe to plain language its ordinary meaning.” Bridgewater–Raritan Educ. Ass'n v. Bd. of Educ., 221 N.J. 349, 361, 113 A. 3d 764 (2015) (citing D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 119–20, 927 A. 2d 113 (2007) ); see also

Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572, 39 A. 3d 177 (2012) (stating that a provision “should not be read in isolation, but in relation to other constituent parts so that a sensible meaning may be given to the whole of the legislative scheme”). If the language is clear, our task is complete; if it is not, we may turn to extrinsic evidence. In re Kollman, 210 N.J. 557, 568, 46 A. 3d 1247 (2012) (citations omitted). The legislative history is examined where the statute's plain language is unclear or can be given “more than one possible meaning[.]” Marino v. Marino, 200 N.J. 315, 329, 981 A. 2d 855 (2009)

.

A penal statute must be strictly construed. Olivero, supra, 221 N.J. at 639, 115 A. 3d 1270

. The doctrine of lenity, which gives words their ordinary meaning and affords any reasonable doubt in favor of the defendant, is “applied only if a statute is...