State v. Phillips

• Decision Date: 25 July 1979
• Citation: 169 N.J.Super. 452,404 A.2d 1270
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Harley V. PHILLIPS, Matthew Smith and Clarence Welden, Jr., Defendants-Appellants. STATE of New Jersey, Plaintiff-Respondent, v. Deborah PETERSON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 452

169 N.J.Super. 452

404 A.2d 1270

STATE of New Jersey, Plaintiff-Respondent, v. Harley V. PHILLIPS, Matthew Smith and Clarence Welden, Jr.,

Defendants-Appellants.

STATE of New Jersey, Plaintiff-Respondent, v. Deborah PETERSON, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued July 16, 1979.

Decided July 25, 1979.

Charles E. Viel, Vineland, for defendants-appellants Harley V. Phillips, Matthew Smith and Clarence Welden, Jr.

Christopher H. Riley, Jr., Millville, for defendant-appellant Deborah Peterson, relied on brief filed by other appellants.

No one appeared for plaintiff-respondent in A-894-77 and no brief was filed on behalf of plaintiff-respondent in A-1157-77.

Before Judges SEIDMAN, MORGAN and PRESSLER, JJ.

PER CURIAM.

Harley V. Phillips, Matthew Smith and Clarence Welden, Jr., ¹ were all found guilty in municipal court of violating N.J.S.A. 39:4-50, subparagraph (b) in the case of Phillips and subparagraph (a) in the case of Smith and Welden. As permitted by N.J.S.A. 39:4-50.7, each elected to be sentenced under the provisions of the amended statute, L. 1977, C. 29. Phillips was sentenced as a subsequent offender because of a prior conviction for driving while impaired (N.J.S.A. 39:4-50(b)). Smith was sentenced as a third offender, having been previously convicted of (a) and (b). Welden was also sentenced as a third offender because of two prior convictions of (b).

Defendants appealed to the County Court, contending that one convicted under the pre-amendment statute of (b) should not be deemed to be convicted of a prior violation under the present statute and thus sentenced as a subsequent offender. The County Court judge disagreed, holding that a person convicted under the current statute is a subsequent offender if he had theretofore been convicted under either (a) or (b). He imposed sentences accordingly, and this appeal followed.

We affirm substantially for the reasons expressed by Judge Porreca in his written opinion. 154 N.J.Super. 112, 380 A.2d 1197 (Law Div.1977). See State v. Culbertson, 156 N.J.Super. 167, 383 A.2d 729 (App.Div.1978). We find no merit in the argument, presented for the first time on appeal, that Culbertson did not consider "the Legislative intent, as embodied in the report of the Motor Vehicle Study Commission," in holding that convictions of (b) are to be considered as prior convictions for sentencing under the amended statute.

Deborah Peterson, whose separate appeal was consolidated with A-894-77, raises the same...