On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. MA06-087.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Parker.
The Monmouth County Prosecutor appeals from a judgment of conviction entered against defendant Daniel J. Binkiewicz on May 25, 2007 after he was found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant was sentenced to pay a $1,000 fine, serve forty-eight hours in the Intoxicated Drivers' Resource Center (IDRC), a ten-year suspension of his driver's license and auto registration and the usual surcharges and penalties.
The background relevant to this appeal is as follows. On September 25, 2006, defendant pled guilty to DWI. He had three prior convictions: 1976 in Upper Deerfield Township, 1982 in Madison Township, and 1993 in Bradley Beach. With respect to the 2006 offense, defendant argued that he should be sentenced as a second offender because his first conviction in 1976 was uncounseled and the subsequent convictions exceeded the ten-year time span under N.J.S.A. 39:4-50(a)(3), entitling him to a step-down in sentencing as a second offender. The municipal court judge rejected defendant's argument and sentenced him as a fourth offender to 180 days in the county jail and the administrative penalties for a third or subsequent offender in N.J.S.A. 39:4-50(a)(3).
Defendant appealed to the Superior Court and Judge Patricia Del Bueno Cleary adjourned the matter to allow defendant to file a petition for post-conviction relief (PCR) on the 1976 conviction in Upper Deerfield Township. That municipal court declined to hear the matter, however, because of its age and the absence of records.*fn1 Defendant then returned to the Superior Court and appeared on May 25, 2007 before Judge Cleary, who exercised original jurisdiction pursuant to Rule 3:23-8(a) and conducted a PCR hearing.
Defendant testified that he was now fifty-four years old, and that when he was ticketed for his first DWI, he went to court with his mother and grandparents, but did not have a lawyer. He testified as follows with respect to what happened in municipal court:
I went to the bench and the judge said to the state trooper, would you be willing to drop it from a DWI, I think it was, to a DUI. The state trooper said yes, he was a gentleman and I'll do that.
Before that he told the stenographer to pull the thing out so she wasn't taking any notes or nothing like that. So --
Q: They had a court stenographer there?
A: There was a lady in there. He said just don't -- that's it. So then they took it to DUI and then they fined me and that was it and I lost the license and everything like that.
Q: At any time in that proceeding . . . were you in court on any other occasion back then other than this one time ...