On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 06-06 and 22-06.
By way of background, on January 10, 2006, defendant Richard Porcello was charged in the Township of Jackson Municipal Court with driving while intoxicated (DWI), N.J.S.A. 39:4-50, and various other motor vehicle and disorderly persons offenses. On May 31, 2005, defendant Michael Polito was charged in the Township of Brick Municipal Court with DWI and refusal to submit to a chemical test, N.J.S.A. 39:4-50.4a. Both defendants entered conditional pleas of guilty to the DWI charge after the respective municipal court judges rejected their arguments that the January 20, 2004 amendment to N.J.S.A. 39:4-50 constituted an unconstitutional ex post facto law. This was both defendants' third DWI offense, defendant Porcello having two previous convictions, and defendant Polito having been previously convicted in 1989 and 1998. Defendant Porcello was sentenced as a third offender to the statute's mandatory penalties including a term of incarceration of 180 days, with credit for 28 days for his participation in a drug rehabilitation program. Defendant Polito was also sentenced to the statutory mandatory third offender penalties and was allowed to enter a ninety-day rehabilitation program in lieu of ninety days incarceration.
Defendants argue here, as they did below, that the 2004 amendment to N.J.S.A. 39:4-50(a)(3), which eliminated the discretion formerly conferred upon a trial court to sentence a defendant to community service for ninety days of the statutorily mandated 180 day term of imprisonment and instead conferred discretion upon the trial court to sentence a defendant to a ninety day in-patient alcohol rehabilitation program in lieu of ninety days of the statutorily mandated 180 day term of imprisonment, constitutes an unconstitutional ex post facto law as applied to their sentences. This amendment was enacted on January 20, 2004, before defendants committed their third DWI offenses, Porcello on January 10, 2006 and Polito on May 31, 2005, and therefore, its application to defendants' sentences did not violate the State or federal constitutional proscriptions against ex post facto laws. See State v. Oliver, 162 N.J. 580, 587 (2000); State v. Phillips, 154 N.J. Super. 112, 119-20 (Law Div. 1977), aff'd o.b., 169 N.J. Super. 452 (App. Div. 1979); see also Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, 1687 (1948); United States v. Ilacqua, 562 F.2d 399, 403-04 (6th Cir. 1977), cert. denied, 435 U.S. 906, 917, 947, 98 S.Ct. 1453, 1473, 1532, 55 L.Ed. 2d 497, 508, 545 (1978). This is because the elimination of the leniency provision does not punish either defendant for his prior offenses, but only arguably affects the punishment for their instant offenses, committed well after the enactment of the challenged amendment. See Oliver, supra, 162 N.J. at 587; see also State v. Fortin, 178 N.J. 540, 608 (2004); State v. Sturn, 119 N.J. Super. 80, 81-83 (App. Div.), certif. denied, 61 N.J. 157 (1992); Phillips, supra, 154 N.J. Super. at 119.