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State v. Najjar

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 1, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LOWEI NAJJAR, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4537.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 18, 2007

Before Judges Parker and Messano.

Defendant Lowei Najjar appeals from the September 26, 2005 order and judgment in which the Law Division judge, after de novo review, found him guilty of driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50. Defendant pled guilty to the charge in Bloomingdale Municipal court, was sentenced to a term of imprisonment of 180 days, 90 days of which was to be spent in an inpatient rehabilitation facility; various fines and penalties were imposed, and his driver's license was suspended for ten years. On appeal before the Law Division, defendant did not challenge the guilty finding. Rather, he argued that the January 2004 amendment to N.J.S.A. 39:4-50(a)(3), as applied to him, violated the ex post facto provisions of the United States Constitution.

The salient facts are as follows. Defendant was convicted of DWI in 1991 and again in 1998. He was represented by counsel at both proceedings. On October 3, 2004, defendant was again charged with DWI. On February 23, 2005, again represented by counsel, he entered a guilty plea to his third DWI offense.

In January 2004, the Legislature amended N.J.S.A. 39:4-5(a)(3). Whereas previously the statute permitted the sentencing court to impose ninety days of community service as partial credit toward a mandatory 180 day term of imprisonment for third or subsequent DWI convictions, the amendment provided for a mandatory term of imprisonment of 180 days, of which 90 days may be spent inpatient in a rehabilitation program. Community service is no longer a sentencing option. The amendment became effective April 26, 2004.

Defendant argued before the municipal judge that the imposition of the enhanced penalty violated the ex post facto provisions of the United States Constitution. U.S. Const. art. I, § 10. He argued that since the penalties imposed for a third conviction were less onerous when he entered his earlier guilty pleas, any sentence imposed under the amended provisions for third offenders was a "retroactive application of [a] new law[]" that unfairly increased his punishment. He contended he should be sentenced as a first offender under the amended statute.

The municipal court judge denied his request. Defendant appealed that issue to the Law Division. Judge Nestor F. Guzman rejected defendant's contention, found him guilty of DWI, and imposed the same sentence. Relying upon State v. Nugent, 152 N.J. Super. 557 (Mun. Ct. 1977), and decisional law from the United States Supreme Court, Judge Guzman reasoned that

The event that occurred exposing the Defendant to subsequent offender provisions of the statute was not his prior convictions; it was the offense for which the Defendant was cited [] on October 3, 2004, approximately six months after the current statute went into effect.

Judge Guzman correctly noted, "no ex post facto [violation] exists when an act or offense occurs after the enactment of [the] statute at issue."*fn1

We have carefully considered the defendant's argument. We affirm for the reasons contained in Judge Guzman's thoughtful, written opinion.

Affirmed.


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