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State v. Carey

Decided: April 28, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDREW CAREY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Petrella, Gruccio and Landau. The opinion of the court was delivered by Gruccio, J.A.D.

Gruccio

[232 NJSuper Page 554] Defendant Andrew Carey pleaded guilty in the Tinton Falls Municipal Court to driving while intoxicated, N.J.S.A. 39:4-50. At sentencing, the State produced a computer printout indicating that defendant was a second offender under the statute. However, a Division of Motor Vehicles (DMV) abstract apparently erroneously listed no prior convictions. Defendant objected to the use of the computer printout, contending it was hearsay and insisted on being sentenced as a first-time offender. The municipal court judge rejected this contention, considered

the printout and sentenced defendant as a second offender. Defendant appealed and at the de novo hearing in the Superior Court, Law Division, he again contended the use of the computer printout was improper. The State presented a corrected DMV abstract showing the previous conviction. The Law Division judge accepted the amended abstract and considered it in imposing sentence upon defendant as a second offender as follows: A $500 fine; $15 costs; $100 surcharge; revocation of his driver's license for 2 years; 30 days of community service, and 48 hours incarceration in the Intoxicated Drivers Resource Center.

On appeal defendant contends:

1. The municipal court erred in permitting the State to admit a computer print-out which is hearsay. A Division of Motor Vehicle Abstract is the public document required to enhance the penalties of defendant. Therefore, defendant must be sentenced as a first offender.

2. The Superior Court, Law Division, erred by allowing the State to admit new evidence at a trial de novo.

Preliminarily, we observe that there are two phases to every criminal and quasi-criminal matter: (1) the determination of guilt or innocence and (2) the imposition of sentence. The rules of evidence apply to the former but are relaxed as to the latter. For example, N.J.S.A. 2C:44-4d provides that "[a]ny prior conviction may be proved by any evidence, including fingerprint records made in connection with arrest, conviction or imprisonment, that reasonably satisfies the court that the defendant was convicted." (Emphasis supplied). Our case law likewise provides that "there is no need to restrict the State's presentation at the sentencing hearing to testimony admissible under the strict rules of evidence. The court may consider any evidence which, from its content, nature and manner of presentation is inherently reliable, trustworthy and credible." State v. Merlino, 208 N.J. Super. 247, 264 (Law Div.1984).

Computer-generated material has reached general acceptance in both the private and public sector and has been used by the courts not only on sentencing matters but as substantive evidence in criminal and civil proceedings. See Admissibility of

Computerized Private Business Records, 7 A.L.R. 4th 8 (1981). In U.S. v. DeGeorgia, 420 F.2d 889 (9th Cir.1969), a federal criminal prosecution, the court relied upon a computer print-out in support of the testimony of a service manager who testified that all information on vehicle rentals, leases and returns was routinely entered into the computer.

The rules of evidence apply to the determination of the innocence or guilt of defendant, not the sentencing phase where the judge must, of necessity, consider all relevant information in imposing a proper legal and just sentence.*fn1 As the U.S. Supreme Court said in Williams v. People of State of New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949):

Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both ...


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