On appeal from Superior Court, Law Division, Middlesex County.
Long and Gruccio. The opinion of the court was delivered by Gruccio, J.A.D.
At issue on this appeal is whether or not the mandatory enhanced penalty provisions for a subsequent conviction of driving while intoxicated in violation of N.J.S.A. 39:4-50 should be imposed at sentencing where the second violation occurs prior to sentencing for the first conviction.
The facts are not disputed. On April 22, 1989, defendant Paul Petrello was charged with operating a motor vehicle while under the influence of alcohol, N.J.S.A. 39:4-50, in the Borough of Metuchen. Thereafter, on May 21, 1989, defendant was again charged with the same offense in the Township of Holmdel.
On September 25, 1989, defendant appeared in the Holmdel Township Municipal Court, pleaded guilty to the drunk-driving charge originating there and was sentenced as a first offender. On March 30, 1990, defendant appeared in the Borough of Metuchen Municipal Court, pleaded guilty to the earlier charge pending there and was sentenced to the enhanced penalties resulting from a second conviction of the drunk-driving statute. On appeal to the Law Division from the sentence imposed in Metuchen, defendant was again sentenced to the enhanced penalties due a second offender.
On appeal, defendant contends:
1. A defendant cannot be subjected to the enhanced penalty provisions as a second offender without having been advised of the penalties as a second offender.
2. A person cannot be sentenced as a second offender under N.J.S.A. 39:4-50 unless he had a prior conviction under that statute at the time of his arrest.
Defendant first refers to N.J.S.A. 39:4-50(c) which provides, among other things:
Upon conviction of a violation of this section, the court shall notify the person convicted, orally and in writing, of the penalties for a second, third or subsequent violation of this section. A person shall be required to acknowledge receipt of that written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of this section.
Defendant contends that he cannot be sentenced as a second offender because at the time of the commission of the offense leading to the second conviction, he had not then received the mandated oral advice by the court of the penalties for a second, third or subsequent violation. The basis for this position is the language in the statute providing that the failure of the court to provide defendant with written notice is not a defense to a subsequent charge, coupled with silence of the statute as to the effect of a failure to so notify the defendant orally. Defendant posits that this legislative silence signifies an intention to bar sentencing as a subsequent offender without, minimally, an oral advisement of the penalties for a second, third or subsequent violation. We disagree. To do so would frustrate the obvious legislative intent to provide enhanced penalties for each subsequent conviction of the statute. We would then reward the defendant who intentionally or negligently fails to appear in court and subsequently violates the statute because he could not then be sentenced as a subsequent offender.
The reliance by defendant on State v. Lightfoot, 208 N.J. Super. 475, 506 A.2d 363 (App.Div.1986), is misplaced since that case was expressly overruled in its application to primarily deterrent statutes by the Supreme Court in State v. Hawks, 114 N.J. 359, 554 A.2d 1330 (1989). In so doing, Justice Clifford, speaking for the majority, distinguished the Graves Act, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3d, as primarily deterrent in nature from N.J.S.A. 2C:14-6, the statute governing repeat sex offenders regarded as primarily rehabilitative in nature. The repeat-sex-offender statute was the subject of State v. Anderson, 186 N.J. Super. 174, 45 ...