State v. Toussaint

• Decision Date: 14 May 2015
• Docket Number: Docket No. A-3654-13T1.
• Citation: 114 A.3d 1016,440 N.J.Super. 526
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Michele TOUSSAINT, a/k/a Michele C. Toussaint, Michele Toussant, Defendant–Respondent.
• Court: New Jersey Superior Court — Appellate Division

440 N.J.Super. 526

114 A.3d 1016

STATE of New Jersey, Plaintiff–Appellant

v.Michele TOUSSAINT, a/k/a Michele C. Toussaint, Michele Toussant, Defendant–Respondent.

Docket No. A-3654-13T1.

Superior Court of New Jersey, Appellate Division.

Submitted Feb. 3, 2015.

Decided May 14, 2015.

Mary Eva Colalillo, Camden County Prosecutor, attorney for appellant (Jason Magid, Assistant Prosecutor, of counsel and on the briefs).

Joseph E. Krakora, Public Defender, attorney for respondent (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs).

Before Judges REISNER, KOBLITZ and HIGBEE.

Opinion

The opinion of the court was delivered by

REISNER, P.J.A.D.

This appeal raises the issue whether a defendant convicted of violating N.J.S.A. 39:3–40(e) and N.J.S.A. 39:6B–2 may be permitted to serve her sentence in an electronic monitoring home detention program in lieu of the county jail.¹ Unlike the sentencing statute at issue in State v. French, 437 N.J.Super. 333, 335, 98 A. 3d 603 (App.Div.2014), certif. denied, 220 N.J. 575, 108 A. 3d 635 (2015), and unlike other provisions in Title 39, N.J.S.A. 39:3–40(e) and N.J.S.A. 39:6B–2 do not unambiguously require that a convicted defendant serve the required imprisonment term “without parole” or “in the county jail.” Consequently, applying well established principles of statutory construction, including the rule of lenity, we conclude that the trial court had discretion to permit defendant to serve her sentence in a home electronic monitoring program rather than in the county jail. Accordingly, we affirm the sentence imposed. We remand this matter for the limited purpose of vacating the stay of sentence entered by the trial court.²

I

While driving during a period of license suspension, defendant was involved in a motor vehicle accident in which two pedestrians were injured. Pursuant to a negotiated plea agreement, defendant pled guilty to one count of third-degree endangering an injured victim, N.J.S.A. 2C:12–1.2, for which the State agreed to recommend two years of probation. At a second plea hearing, on January 24, 2014, she also pled guilty to two motor vehicle offenses, driving while her license was suspended, N.J.S.A. 39:3–40, and driving without insurance, N.J.S.A. 39:6B–2.

At the initial plea hearing on December 11, 2013, the prosecutor recited that the State would recommend an aggregate sentence of “90 days” for the violation of N.J.S.A. 39:3–40(b) and (e). The prosecutor told the judge that “[t]he State would object to programs,” i.e., alternatives to serving the sentence within the county jail. The prosecutor also stated that defendant would be subject to a fourteen-day jail term for driving without insurance, which could be imposed concurrent to the sentence for being involved in an accident during a period of license suspension. The judge reminded both counsel that in addition to the jail terms already discussed, a second conviction for driving while suspended, N.J.S.A. 39:3–40(b), required a sentence of between one and five days which “must be served in the county jail.”

The judge explained on the record that he interpreted the several provisions of N.J.S.A. 39:3–40 as requiring imprisonment in the county jail when a particular section specified that the sentence must be served “in the county jail,” but as allowing “programs such as house arrest or the CSLS program ... when the term of incarceration that is required is characterized generally as imprisonment or in some other general way.”³

At the sentencing hearing, defense counsel asked the judge to permit defendant to serve her sentence in an alternative program, because defendant was employed and supporting her son, and was also living with and caring for her elderly mother. Defendant also agreed to pay restitution to the two injured pedestrians. After finding that the mitigating factors outweighed the aggravating factors, the judge sentenced defendant to two years of probation for leaving an injured victim. For the motor vehicle violations, the judge sentenced defendant to five days in the county jail, which was subsumed by five days of jail credit, plus eighty-five days “imprisonment” as to which “programs” would be “permissible.” That is, defendant could serve the eighty-five days in home confinement with electronic monitoring.

II

Our review of the trial court's statutory interpretation is de novo. State v. Vargas, 213 N.J. 301, 327, 63 A. 3d 175 (2013) ; State v. Gandhi, 201 N.J. 161, 176, 989 A. 2d 256 (2010). In construing the statutes at issue, we consider their plain language, and if we find the language ambiguous we consider the legislative history and purpose of the enactments. Gandhi, supra, 201 N.J. at 176–77, 989 A. 2d 256 ; DiProspero v. Penn, 183 N.J. 477, 492–93, 874 A. 2d 1039 (2005).

We begin with the statutory language. N.J.S.A. 39:6B–2 provides that upon a second or subsequent conviction for driving without insurance, the defendant “shall be subject to a fine of up to $5,000 and shall be subject to imprisonment for a term of 14 days.” N.J.S.A. 39:3–40(e) specifies that if a defendant drives during a period of license suspension and is involved in an accident in which another person is injured, “the court shall impose a period of imprisonment for not less than 45 days or more than 180 days.” Both statutes refer to “imprisonment” but neither statute specifies whether the sentencing court has the discretion it would normally have to permit alternatives to incarceration in the county jail. See R. 7:9–1; N.J.S.A. 39:5–7 ; N.J.S.A. 2C:44–2(b). As will be further discussed below, that is significant, because in other sections of Title 39, and in cognate provisions of Title 2C concerning automobile-related offenses, the Legislature has specified when a term of imprisonment must be served “in the county jail” or “without parole.”

Because the statutory language does not answer the question presented in this case, we consider the legislative history. State v. Gelman, 195 N.J. 475, 482, 950 A. 2d 879 (2008) ; DiProspero, supra, 183 N.J. at 492–93, 874 A. 2d 1039. While our research reveals no relevant history for N.J.S.A. 39:6B–2, the history of N.J.S.A. 39:3–40 is helpful. Prior to its amendment in 1982, the statute consisted of three unnumbered paragraphs. Only the first and third paragraphs are relevant here:

No person to whom a driver's license has been refused or whose driver's license ... has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition.

....

A person violating any provision of this section shall be fined not less than $200.00 nor more than $1000.00, or be imprisoned in the county jail for not more than 6 months, or both, provided, that if while operating a vehicle in violation of this section, such person is involved in an accident resulting in personal injury, the punishment shall include imprisonment for not less than 45 days.

[L. 1981, c. 38, § 1 (current version at N.J.S.A. 39:3–40 ).]

In 1982, the statute was amended to “increase[ ] the general penalties” for “driving on the revoked list.” Senate Law, Public Safety and Defense Committee Statement, Senate, No. 904—L . 1982, c. 45; Assembly Judiciary, Law, Public Safety and Defense Committee, Senate, No. 904—L . 1982, c. 45. In amending the statute, the Legislature divided section 40 into several separate sections, corresponding to different types of violations. As amended, N.J.S.A. 39:3–40 provided that a person in violation of its provisions would be subject to:

a. Upon conviction for a first offense, a fine of $500.00;

b. Upon conviction for a second offense, a fine of $750.00 and imprisonment in the county jail for not more than 5 days;

c. Upon conviction for a third offense, a fine of $1,000.00 and imprisonment in the county jail for 10 days;

d. Upon conviction, the court shall impose or extend a period of suspension not to exceed 6 months;

e. Upon conviction, the court shall impose a period of imprisonment for not less than 45 days if while operating a vehicle in violation of this section a person is involved in an accident resulting in personal injury.

Notwithstanding paragraphs a. through e., any person violating this section while under a suspension issued pursuant to R.S. 39:4–50 shall be subject upon conviction to a fine of $500.00, imprisonment in the county jail for 90 days, and an additional suspension of the license to operate a motor vehicle for a period of 5 years.

[L. 1982, c. 45, § 2 (emphasis added) (current version at N.J.S.A. 39:3–40 ).]

As the emphasized portions illustrate, all of the other amended sections providing for imprisonment specified that the sentence was to be served “in the county jail,” while section (e) only provided for “imprisonment.” The legislative history does not reveal the reasons for this difference in wording. Statements on the bill that became subsection (e) indicate that if a person is involved in an accident where personal injury occurs, he or she will “be imprisoned for not less than 45 days.” Senate Law, Public Safety and Defense Committee Statement, Senate, No. 904—L . 1982, c. 45; Assembly Judiciary, Law, Public Safety and Defense Committee, Senate, No. 904—L . 1982, c. 45.

The legislative statements do not address whether the imprisonment mandated by subsection (e) must be a traditional county jail sentence or whether some variation is permitted. However, the sentences in section 40 for which the Legislature specified incarceration “in the county jail” were all either very short terms of a few days, or related to driving during a license suspension for driving while intoxicated (DWI), an offense the Legislature has treated as particularly egregious. See N.J.S.A. 2C:40–26(c) (requiring 180 days imprisonment without parole for a second or subsequent conviction for driving while suspended for DWI); French, supra, 437 N.J.Super. at 336–37, 98 A. 3d...