June 20, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BAHMAN TOOFANI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BMA 003-06-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 6, 2007
Before Judges C. S. Fisher and Yannotti.
In a de novo appeal to the Law Division from the municipal court, defendant Bahman Toofani was found guilty of driving under suspension, in violation of N.J.S.A. 39:3-40. Defendant appeals his conviction and the sentences imposed. Defendant raises the following points for our consideration:
POINT I: THE ABSTRACT OF APPELLANT'S DRIVING RECORD SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
A. THE STATE FAILED TO COMPLY WITH ITS DISCOVERY OBLIGATIONS UNDER RULE 7:7-7 IN THAT IT DID NOT PROVIDE DEFENSE COUNSEL WITH THE APPELLANT'S DRIVING RECORD, A CERTIFIED COPY OF WHICH WAS NECESSARY TO CONVICT THE APPELLANT, UNTIL AFTER THE TRIAL BEGAN.
B. THE DRIVING ABSTRACT, NOT BEING CERTIFIED IN ACCORDANCE WITH N.J.R.E. 902(a), WAS IMPROPERLY ADMITTED INTO EVIDENCE, BUT APPELLANT, NOT HAVING HAD TIME TO REVIEW THE ABSTRACT, CANNOT BE SAID TO HAVE WAIVED OBJECTION TO ITS ADMISSIBILITY.
POINT II: THE APPELLANT NOT HAVING BEEN ADVISED PURSUANT TO N.J.S.A. 39:4-50(c) OF THE ENHANCED PENALTIES FOR OPERATING DURING A DWI SUSPENSION, SUCH PENALTIES MAY NOT BE LAWFULLY IMPOSED.
POINT III: THE COURT FAILED ITS OBLIGATION TO ALLOW THE APPELLANT TO MAKE A STATEMENT PRIOR TO THE IMPOSITION OF SENTENCE AND ACCORDINGLY THE SIXTY-DAY CUSTODIAL SENTENCE AND TWO-YEAR LICENSE SUSPENSION MAY NOT STAND.
POINT IV: THE MUNICIPAL COURT JUDGE SHOULD HAVE RECUSED HIMSELF FROM HEARING THIS CASE.
We have carefully considered the record in light of the arguments advanced on appeal. We are convinced that there is no merit in the contentions asserted in Points I, II, and IV. R. 2:11-3(e)(2). We therefore affirm defendant's conviction. In Point III, defendant argues that the judges erred by imposing sentences without affording defendant and his attorney an opportunity to address the court. Defendant relies upon R. 7:9-1(a) which states that, before sentence is imposed, the court "shall" afford defendant and defense counsel an opportunity "to make a statement" and "present any information in mitigation of punishment." Defendant seeks reversal of the sentence and a remand for re-sentencing. The State agrees that re-sentencing is required in these circumstances. Accordingly, we reverse the sentences imposed and remand to the Law Division for re-sentencing.
Affirmed in part, reversed in part, and remanded to the Law Division for re-sentencing. We do not retain jurisdiction.
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