On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, A-09-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Fuentes.
Following a third conviction for driving while intoxicated (DWI), defendant appeals from Judge Marshall's denial of his Laurick*fn1 application, in which defendant had requested that the court not use his first drunk driving conviction, which occurred in 1988 and was uncounseled, for purposes of sentencing, and instead sentence him as a second offender for his third DWI conviction. In a written decision dated July 11, 2006, the Law Division judge found that defendant proved that in 1988 he was not advised of his right to counsel and did not have counsel; but, the judge denied defendant's application because defendant was unable to demonstrate that he was indigent in 1988 and qualified for a court-appointed attorney, and, further, because even if defendant had counsel at the time he entered his plea, the result of the proceeding would not have been different. On appeal, defendant raises the following legal arguments:
I. The trial court erred in convicting Mr. Dellpriscoli as a third-time offender for Driving While Intoxicated because his first conviction was both uncounseled and uninformed of the right to counsel, in violation of the New Jersey Supreme Court's decision in State v. Hrycak.
A. The trial court erred in convicting Mr. Dellpriscoli because he meets the burden required under the three-part test elucidated in State v. Hrycak.
B. Given the gravity of the offense, and the potential loss of liberty at stake, coupled with the lack of records available, Mr. Dellpriscoli should not be convicted as a third-time offender because of the fundamentally unjust burden the State is attempting to impose on him.
We have carefully considered defendant's contentions in light of the facts and applicable law. We conclude that his arguments are without merit and affirm.*fn2
On January 16, 1988, defendant was charged in East Greenwich Township with DWI, in violation of N.J.S.A. 39:4-50. He pleaded guilty to the charge on March 21, 1988, and the court imposed a penalty of costs and fines. Transcripts of the hearing are no longer available because the Township has destroyed them pursuant to its policy of disposing of records after fifteen years.
On April 26, 2001, defendant was charged in Cinnaminson with his second DWI violation. On June 21, 2001, defendant pleaded guilty to that charge.
On July 8, 2005, defendant was charged in Evesham Township with reckless driving, failure to keep to the right, failure to have a driver's license and registration in his possession, and a third DWI. On December 8, 2005, he pleaded guilty to the DWI charge. The judge withheld sentence pending resolution of defendant's Laurick motion.
Defendant filed his Laurick motion in Greenwich Township Municipal Court on January 17, 2006. The court denied the motion. Defendant appealed to the Law Division. The Law Division judge considered defendant's motion on its merits, despite the expiration of the five-year time limit to file the application, R. 7:10-2(b)(2), because defendant sufficiently demonstrated that the delay in filing was due to "excusable neglect".
Defendant alleged that he was unable to afford an attorney when charged with DWI in 1988, as he had been out of work after injuring his leg the ...