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State v. Colley

December 14, 2007


On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Docket No. 06-060.

The opinion of the court was delivered by: RODRÍGUEZ, A. A., P.J.A.D.



Submitted October 29, 2007

Before Judges Stern, A. A. Rodríguez and C. S. Fisher.

In this opinion, we hold that a prior conviction in another state for conduct equivalent to that proscribed by N.J.S.A. 39:4-50 subjects a defendant to the enhanced penalty set by N.J.S.A. 39:3-40f(2) upon a subsequent conviction in this state. Defendant, Lateef J. Colley, appeals from his conviction by the Law Division for driving while suspended in violation of N.J.S.A. 39:3-40. We affirm.

On June 29, 2005, Port Authority Police Officer Robert Sisserson was on roving patrol of the area surrounding the George Washington Bridge. At approximately 7:15 p.m., Sisserson observed defendant's vehicle, a 2000 Nissan, traveling eastbound on Bruce Reynolds Boulevard in the right-turn-only lane. Rather than making a right turn as required, defendant proceeded straight through the intersection of Lemoine Avenue and Bruce Reynolds Boulevard. Sisserson stopped the Nissan and requested defendant's documentation. Defendant produced a New York State driver's license, indicating that he resides in Staten Island, New York. Upon reviewing defendant's driving credentials in his vehicle's mobile data terminal (MDT), Sisserson learned that defendant's New York license was suspended. As a result, he issued defendant two motor vehicles summonses.*fn1 In his statement of facts, defendant notes that he objected to the introduction of information obtained through the MDT because it was inadmissible hearsay. However, defendant has not made an issue of the admissibility of this evidence on appeal.*fn2 It was subsequently determined that defendant was convicted in New York on March 1, 2005 for driving while impaired. Defendant's license was suspended the same day. Defendant has never challenged the accuracy of his driving abstract.

Defendant appeared at the Fort Lee Municipal Court to answer those charges. At that time, Municipal Court Judge Robert T. Tessaro accepted a proposed plea agreement, whereby the State agreed to dismiss the summons for failure to obey a signal in exchange for defendant pleading guilty to the driving while suspended charge. This agreement, however, was contingent upon the judge accepting the proposition that defendant was not subject to the enhanced penalty provision set by N.J.S.A. 39:3-40, which calls for the enhancement where the basis of the suspension was a violation of N.J.S.A. 39:4-50.

Judge Tessaro reserved his decision on this issue. Subsequently, Judge Tessaro advised counsel in writing that, after exhaustively researching the issue, it was his opinion that the enhanced penalties outlined in N.J.S.A. 39:3-40 were mandatory and applied to defendant's conviction.

Defendant moved for reconsideration or, in the alternative, to withdraw his guilty plea. Judge Tessaro denied reconsideration and the matter was tried upon defendant's withdrawal of his guilty plea. At the conclusion of the trial, defendant was found guilty of violating N.J.S.A. 39:3-40. The judge imposed a $500 fine; $33 in court costs; a $6 surcharge; a ten-day jail term to be served in the Sheriff's Labor Assistance Program; and a one-year driving privilege suspension in the State of New Jersey.

Defendant appealed to the Law Division. Judge Harry G. Carroll held a trial de novo. Judge Carroll found defendant guilty and imposed the same penalties as the municipal court. The sentence was stayed pending appeal.

On appeal, defendant contends that Judge Carroll "erred in the interpretation of the provisions of [N.J.S.A.] 39:3-40." Defendant further contends that it was error to accept into evidence "a document without a proper foundation." We disagree and affirm.

Defendant argues that his conviction in New York for driving while impaired does not subject him to enhanced penalties pursuant to N.J.S.A. 39:3-40 because the prior conviction was not for a violation of N.J.S.A. 39:4-50. Specifically, defendant contends that a literal reading of N.J.S.A. 39:3-40 requires a conviction of N.J.S.A. 39:4-50 in this state in order to trigger the assessment of the enhanced penalty. Additionally, defendant asserts that the enhanced penalties do not apply because he is not the holder of a New Jersey driver's license. We reject these contentions.

Pursuant to N.J.S.A. 39:3-40, "[n]o person . . . whose driver's license or reciprocity privilege has been suspended or revoked . . . shall personally operate a motor vehicle during the period of refusal, suspension, revocation or prohibition." This section is extended to nonresident drivers whose privilege to drive has been automatically suspended by virtue of N.J.S.A. 39:3-17, as a result of ...

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