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State v. Damiano

May 6, 1976

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEVEN L. DAMIANO, DEFENDANT-APPELLANT



Helfrich, J.c.c.

Helfrich

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 (1949) and State v. Buchan , 119 N.J. Super. 297 (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 ...


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