State v. Phillips

CourtSuperior Court of New Jersey
Writing for the CourtPORRECA
Citation154 N.J.Super. 112,380 A.2d 1197
Decision Date01 November 1977
PartiesSTATE of New Jersey, Plaintiff, v. Harley V. PHILLIPS, Defendant. STATE of New Jersey, Plaintiff, v. David SEAY, Defendant. STATE of New Jersey, Plaintiff, v. Matthew S. SMITH, Defendant. STATE of New Jersey, Plaintiff, v. Clarence WELDEN, Jr., Defendant. (Criminal)

Page 112

154 N.J.Super. 112
380 A.2d 1197
STATE of New Jersey, Plaintiff,
v.
Harley V. PHILLIPS, Defendant.
STATE of New Jersey, Plaintiff,
v.
David SEAY, Defendant.
STATE of New Jersey, Plaintiff,
v.
Matthew S. SMITH, Defendant.
STATE of New Jersey, Plaintiff,
v.
Clarence WELDEN, Jr., Defendant.
Superior Court of New Jersey, Law Division,
(Criminal).
Nov. 1, 1977.

[380 A.2d 1198]

Page 114

Charles E. Viel, Camden, for defendants Phillips, Smith and Weldon (Harry R. Adler, Bridgeton, attorney).

David C. Harper, Bridgeton, for defendant Seay.

Kevin P. McCann, Asst. County Prosecutor, Bridgeton, for plaintiff (William P. Doherty, Jr., Prosecutor of Cumberland County, Bridgeton, attorney).

PORRECA, J. C. C., Temporarily Assigned.

These are four appeals from four separate sentences imposed by the municipal courts of Downe Township and Upper Deerfield Township after the courts found defendants guilty of violating N.J.S.A. 39:4-50. Each of the four defendants contends that the trial judge erred in holding him to be a subsequent offender under the statute (N.J.S.A. 39:4-50) as amended by L.1977, c. 29, effective May 25, 1977, by reason of his conviction under the statute prior to this amendment. The issue before this court on appeal is whether a defendant convicted for driving a motor vehicle while impaired by the consumption of alcohol (N.J.S.A. 39:4-50(b) of the statute prior to the 1977 amendment) should be deemed to be convicted of a prior violation of the current statute and thus sentenced as a subsequent offender. This court holds that the subsequent offender provision was properly invoked.

Page 115

Defendants now before this court are Phillips, Seay, Smith and Welden. A statement of the essential facts respecting each is in order.

Phillips: On March 22, 1977 defendant Phillips was convicted of a violation of N.J.S.A. 39:4-50(b) under the statute as it existed prior to the 1977 amendments driving a motor vehicle while his ability was impaired by the consumption of alcohol. The date of the offense was December 4, 1976. In accordance with N.J.S.A. 39:4-50.7 defendant requested to be sentenced under the provisions of the current statute. On June 7, 1977 he was sentenced under the current statute as a second offender because he had been convicted in 1967 of driving a motor vehicle while his ability was impaired by the consumption of alcohol, in violation of N.J.S.A. 39:4-50(b).

SEAY: On April 9, 1977 defendant Seay was arrested and charged with violating N.J.S.A. 39:4-50(b), operating a motor vehicle while his ability was impaired by the consumption of alcohol. On June 7, 1977 he pleaded guilty and requested to be sentenced under the current statute. He was sentenced as a second offender by reason of a prior conviction in May 1977 when he was found to have violated N.J.S.A. 39:4-50(b) under the prior statute.

Smith: On June 15, 1977 the defendant Smith was found guilty of driving a motor vehicle while under the influence, N.J.S.A. 39:4-50(a). The date of the offense was April 8, 1977. Defendant requested to be sentenced in accordance with the penalties of the current statute. He was sentenced as a third offender because he had two prior convictions under the drinking-driving law as it existed before the 1977 amendments. One conviction was for driving a motor vehicle while under the influence of intoxicating liquor, N.J.S.A. 39:4-50(a), and the other was for driving a motor vehicle while his ability was impaired, N.J.S.A. 39:4-50(b).

Welden: Defendant Welden was arrested on February 5, 1977 and charged with driving a motor vehicle while under the influence of alcohol, in violation of N.J.S.A. 39:4-

Page 116

50(a). On March 16, 1977 he was convicted as charged; however, the imposition of a sentence was deferred until after May 25, 1977, the effective date of the current statute. Defendant was sentenced as a third offender because he had been convicted[380 A.2d 1199] on two prior occasions of driving a motor vehicle while his ability was impaired, N.J.S.A. 39:4-50(b).

This issue arises because N.J.S.A. 39:4-50, as it existed before the 1977 amendments, provided for two types of offenses respecting the operation of a motor vehicle after a defendant had consumed alcohol. Subsection (a) of that statute concerned the more serious offense of driving while under the influence of intoxicating liquor, while subsection (b) was directed at the lesser offense of driving while ability was...

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11 practice notes
  • State v. Oliver
    • United States
    • Superior Court of New Jersey
    • November 8, 1996
    ...(C.D.CA.1968); U.S. v. Platt, 31 F.Supp. 788, 793 (D.Ct.Tex.1940); In re Caruso, 10 N.J. 184, 89 A.2d 661 (1952); State v. Phillips, 154 N.J.Super. 112, 380 A.2d 1197 (Law Div.1977), aff'd, 169 N.J.Super. 452, 404 A.2d 1270 (App.Div.1979). This is so because the law does not punish the defe......
  • Blair v. Anik Liquors
    • United States
    • Superior Court of New Jersey
    • January 24, 1986
    ...punishment for violators but rather to provide for treatment and rehabilitation in addition to Page 643 punishment. State v. Phillips, 154 N.J.Super. 112, 380 A.2d 1197 (Law Div.1977) aff'd 169 N.J.Super. 452, 404 A.2d 1270 The plaintiffs in this case are actually seeking recovery or indemn......
  • Com. v. Grady
    • United States
    • Superior Court of Pennsylvania
    • December 28, 1984
    ...State ex rel. Van Natta v. Rising, 262 Ind. 33, 310 N.E.2d 873 (1974); State v. Willis, 332 N.W.2d 180 (Minn.1983); State v. Phillips, 154 N.J.Super. 112, 380 A.2d 1197 (1977), aff'd, 169 N.J.Super. 452, 404 A.2d 1270 (1979). Cf. State v. Acton, 665 S.W.2d 618, 620 (Mo.1984) (en banc); Stat......
  • Commonwealth v. Grady
    • United States
    • Superior Court of Pennsylvania
    • December 28, 1984
    ...State ex rel. Van Natta v. Rising, 262 Ind. 33, 310 N.E.2d 873 (1974); State v. Willis, 332 N.W.2d 180 (Minn.1983); State v. Phillips, 154 N.J.Super. 112, 380 A.2d 1197 (1977), aff'd, 169 N.J.Super. 452, 404 A.2d 1270 (1979). Cf. State v. Acton, 665 S.W.2d 618, 620 (Mo.1984) (en banc); Stat......
  • Request a trial to view additional results
11 cases
  • State v. Oliver
    • United States
    • Superior Court of New Jersey
    • November 8, 1996
    ...(C.D.CA.1968); U.S. v. Platt, 31 F.Supp. 788, 793 (D.Ct.Tex.1940); In re Caruso, 10 N.J. 184, 89 A.2d 661 (1952); State v. Phillips, 154 N.J.Super. 112, 380 A.2d 1197 (Law Div.1977), aff'd, 169 N.J.Super. 452, 404 A.2d 1270 (App.Div.1979). This is so because the law does not punish the defe......
  • Blair v. Anik Liquors
    • United States
    • Superior Court of New Jersey
    • January 24, 1986
    ...punishment for violators but rather to provide for treatment and rehabilitation in addition to Page 643 punishment. State v. Phillips, 154 N.J.Super. 112, 380 A.2d 1197 (Law Div.1977) aff'd 169 N.J.Super. 452, 404 A.2d 1270 The plaintiffs in this case are actually seeking recovery or indemn......
  • Com. v. Grady
    • United States
    • Superior Court of Pennsylvania
    • December 28, 1984
    ...State ex rel. Van Natta v. Rising, 262 Ind. 33, 310 N.E.2d 873 (1974); State v. Willis, 332 N.W.2d 180 (Minn.1983); State v. Phillips, 154 N.J.Super. 112, 380 A.2d 1197 (1977), aff'd, 169 N.J.Super. 452, 404 A.2d 1270 (1979). Cf. State v. Acton, 665 S.W.2d 618, 620 (Mo.1984) (en banc); Stat......
  • Commonwealth v. Grady
    • United States
    • Superior Court of Pennsylvania
    • December 28, 1984
    ...State ex rel. Van Natta v. Rising, 262 Ind. 33, 310 N.E.2d 873 (1974); State v. Willis, 332 N.W.2d 180 (Minn.1983); State v. Phillips, 154 N.J.Super. 112, 380 A.2d 1197 (1977), aff'd, 169 N.J.Super. 452, 404 A.2d 1270 (1979). Cf. State v. Acton, 665 S.W.2d 618, 620 (Mo.1984) (en banc); Stat......
  • Request a trial to view additional results

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