On appeal from the Superior Court, Law Division, Passaic County.
Michels, Deighan and Stern. The opinion of the court was delivered by Stern, J.s.c., temporarily assigned.
[209 NJSuper Page 598] Defendant appeals his conviction for driving while intoxicated (N.J.S.A. 39:4-50) and contends that it was error to sentence him as a third offender. Specifically, he argues that his prior conviction in New York for driving while impaired should not have been considered as a prior offense for purposes of the enhanced penalties provided for a third offender. He further contends that since he was not represented by counsel when he pleaded guilty in New York, it was constitutionally impermissible to use that conviction to impose an enhanced sentence of imprisonment. Defendant also argues that the State of New Jersey was "estopped" from sentencing him as a third offender
in view of the fact that he was treated as a first offender in New York.
We disagree with defendant's principal contentions but, for the reasons set forth in Point IV of our opinion, vacate the conviction for driving while intoxicated and remand for further proceedings.*fn1
On February 5, 1985 defendant entered his guilty pleas in the Haledon Municipal Court. On motion of the prosecutor, a charge of driving while his license was suspended (N.J.S.A. 39:3-40), occurring simultaneously on November 5, 1984, was merged into the charge of driving under the influence. On March 19, 1985 defendant appeared before the municipal court judge for sentencing. The prosecutor represented that defendant had two prior convictions within the last ten years for driving while intoxicated, one on November 22, 1981 in West Paterson, New Jersey, and the other on July 28, 1982 in the state of New York. The question arose as to whether the New York conviction should be considered and whether defendant could be sentenced as a third offender. Defendant submitted a letter from the court clerk for the Town of Blooming Grove, New York, indicating that he was arrested in that town on July 28, 1982 and charged with driving while intoxicated, and that on January 25, 1983 he pleaded guilty to driving while impaired. See N.Y.Veh. & Traf.Law, §§ 1192(1) and (3) (McKinney Supp. 1986). He was sentenced to pay a fine of $250 and to a 60-day suspension of his New York driving privileges. The clerk further indicated that defendant "was not represented in court by an attorney."
The municipal judge in the case concluded that the New York conviction should be considered and that defendant was therefore a third offender under N.J.S.A. 39:4-50. Accordingly, on the conviction for driving while intoxicated, he sentenced defendant to the Passaic County Jail for 180 days, suspended his license for ten years and imposed a fine of $1,000, a surcharge of $100 and $25 court costs.
The Law Division on trial de novo found that defendant was a third offender and imposed the same sentence. The judge relied on State v. Cromwell, 194 N.J. Super. 519 (App.Div.1984), which held that a defendant was subject to the enhanced penalty for driving while under a license suspension, pursuant to N.J.S.A. 39:4-50, where his underlying conviction for drunk driving leading to the suspension occurred in New York.
Defendant subsequently moved before the New York court to vacate his guilty plea entered in that state on the ground that he was not represented by counsel at the time the plea was entered. The presiding justice denied defendant's motion for the following reasons:
The Defendant originally sought an adjournment for the purpose of retaining an attorney. That adjournment was granted. He chose to proceed without an attorney after several requests for further adjournments were granted. He should not now be permitted to withdraw his plea of guilty on the grounds that he was not represented at that time.
Defendant, relying on State v. Davis, 95 N.J. Super. 19 (Cty.Ct.1967), contends that he should not have been treated as a third offender since he had only one previous conviction under N.J.S.A. 39:4-50 in New Jersey.
N.J.S.A. 39:4-50(a) provides that "A person who operates a motor vehicle while under the influence of intoxicating liquor . . . shall be subject" to certain enumerated penalties. The actual penalty depends on the number of prior convictions, if any. N.J.S.A. 39:4-50(a)(3), now reads as it provided on November 5, 1984, and states:
For a third or subsequent violation, a person shall be subject to a fine of $1,000.00, and shall be sentenced to imprisonment for a term of not less than 180 days, except that the court may lower such term for each day, not exceeding 90 days, served performing community service in such form and on such terms as the court shall deem appropriate under the circumstances and shall thereafter forfeit his right to operate a motor vehicle over the highways of this State for 10 years.
N.J.S.A. 39:4-50(a) further provides, in part:
A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after ...