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State v. Dell'Priscoli

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 5, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL L. DELL'PRISCOLI, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. A-14-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 13, 2008

Before Judges Skillman and Winkelstein.

Defendant appeals from a February 2, 2007 order of the Law Division finding him guilty of driving while under the influence of alcohol, in violation of N.J.S.A. 39:4-50, in the Township of Evesham on July 5, 2005 and sentencing him as a third offender to a $2,000 fine, a ten-year suspension of his motor vehicle license, followed by ten years of being required to operate his vehicle only with an ignition interlock device, twelve hours in an Intoxicated Drivers Resource Center, and a 180-day term of imprisonment in the Burlington County Jail.

On appeal, defendant presents the following 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 UNIFORMED 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.

II. MR. DELLPRISCOLI'S MOTION FOR POST CONVICTION RELIEF UNDER LAURICK IS PROPER AND NOT TIME BARRED UNDER EITHER R. 7:10-2 OR R. 1:1-2 BECAUSE OF THE UNIQUENESS SURROUNDING THE CIRCUMSTANCES OF HIS SITUATION.

A. Because Mr. Dellpriscoli's first conviction was both uncounseled and uninformed for the right to counsel, in violation of the New Jersey Constitution and concurring case law, Mr. Dellpriscoli's first conviction was illegal.

B. Even assuming that Mr.

Dellpriscoli's original conviction was not illegal, he nevertheless meets the criteria under R. 7:10-2(b)(2).

C. In addition to all of the foregoing, Mr. Dellpriscoli's petition should be heard in the interest of justice pursuant to R. 1:1-2.

While the 2005 charge of driving while under the influence was pending before the Law Division and this court, defendant pursued a challenge to his first conviction for driving while under the influence, which occurred in the East Greenwich Township Municipal Court in 1988. Defendant claimed, in accordance with the procedures set forth in State v. Laurick, 120 N.J. 1, 11-12, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990), that his guilty plea to that charge was uncounseled and therefore should not be considered in establishing his status as a third offender for purposes of determining the period of incarceration to be imposed for the 2005 offense. The Law Division rejected this challenge on the ground that even though defendant was not advised of his right to counsel in the 1988 proceedings, he was unable to demonstrate that he was indigent and would have qualified for court- appointed counsel in that proceeding, and because the result of that proceeding would not have been different even if defendant had counsel when he entered his guilty plea.

On defendant's appeal from the Law Division's rejection of his application for relief from the 1988 conviction, we affirmed in an unreported opinion. State v. Dell'Priscoli, No. A-6507-05 (App. Div. June 25, 2007). We concluded that "the record supports the judge's decision that defendant did not submit sufficient evidence to establish either that he was indigent at the time he entered his guilty plea in 1988, or that the absence of counsel had an impact on his conviction or otherwise 'worked a miscarriage of justice.'" (slip op. at 7).

Although our prior opinion was unpublished, defendant is bound as a party to the appeal by the conclusions reached in that opinion. See R. 1:36-3; Raymond v. N.J. State Parole Bd., 221 N.J. Super. 381, 384-85 n.1 (App. Div. 1987).

The arguments that defendant presents in the present appeal were all rejected in our prior opinion. Therefore, we affirm defendant's conviction and sentence substantially for the reasons set forth in that opinion.

Affirmed.

20080305

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