On appeal from the Superior Court of New Jersey, Law Division, Monmouth County
Pressler, O'Brien and Stern. The opinion of the court was delivered by Stern, J.A.D.
[230 NJSuper Page 403] The critical issue in this case is whether defendant was properly sentenced as a second offender upon his plea of guilty in the Tinton Falls Municipal Court for driving while intoxicated, in violation of N.J.S.A. 39:4-50. We conclude that defendant was improperly convicted as a second offender and remand for resentencing.
On June 30, 1987 defendant appeared with counsel before the municipal court and defendant pled guilty to violating N.J.S.A. 39:4-50 and another offense. He indicated that he was doing it "conditionally under R. [3:9-3]," premised on a finding that he was a first offender.*fn1
Defendant took the stand in support of his claim that he was uncounselled at the time of his prior drunk driving conviction. He testified that on January 23, 1979 he appeared in the Weehawken Municipal Court and, while waiting to be reached, was approached by the arresting officer. Defendant explained that the officer offered him a deal involving merger of offenses and dismissal of charges against others in exchange for his guilty plea to two offenses including drunk driving. The following colloquy was then developed between defendant and his counsel at the 1987 proceedings regarding the 1979 plea:
Q. As a result of the discussion with the officer when you appeared before the court, did you have an attorney to advance your plea at that moment?
A. No, we didn't have an attorney with us.
Q. And when you did, did it come about exactly as the officer said it would come about?
A. Yes. We went into the courtroom. The Judge called us. And he said that he had, you know, heard the policeman's statements, and that he agreed on the merger of the two things. And that other people were found not guilty.
Q. And you were found guilty of, -- you plead guilty to drunk driving?
The testimony was further developed ...