May 6, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
DANIEL J. BINKIEWICZ, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2008
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 when you went on before that judge?
A: No, no.
Q: Any time during that evening, either to the entire assembly or to you individually, did the judge ever discuss the right to have a lawyer?
A: No, he didn't.
Q: Did he ever talk to you personally and [say] that you have a right to an adjournment, you have a right to have an attorney, to discuss this matter with an attorney to see if you have any defenses? Did he ever discuss any of that with you?
Q: Did you know at that time that you had a right to ask for an adjournment to go and hire an attorney?
A: No I didn't.
Defendant was cross-examined by the prosecutor and acknowledged that he had counsel for his second and third offenses.
After hearing the testimony, Judge Cleary first considered the defendant's testimony and found it credible with respect to the uncounseled plea in 1976, noting that defendant acknowledged having counsel for the subsequent pleas. Relying on State v. Laurick, 120 N.J. 1, 16 (1990), cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990), and State v. Hrycak, 184 N.J. 351, 365 (2005), Judge Cleary disregarded the uncounseled 1976 conviction for sentencing purposes and found that defendant was entitled to the step-down provision because the second and third offenses were more than ten years earlier. Defendant was sentenced as a third offender with respect to the administrative penalties.
The State appeals and argues:
DEFENDANT FAILED TO PROVE THAT HIS 1976 CONVICTION WAS UNCOUNSELED PURSUANT TO LAURICK
DEFENDANT IS NOT ENTITLED TO APPLICATION OF THE STEP-DOWN PROVISION
The State first argues that defendant's testimony regarding his 1976 plea was not sufficient under Laurick and Hrycak, which require a "three-tiered showing." Laurick, supra, 120 N.J. at 11; Hrycak, supra, 184 N.J. at 363. The State maintains that defendant (1) did not establish that he did not receive notice of the right to counsel in his prior conviction; (2) did not present evidence as to whether he was indigent and, therefore, entitled to representation at the public expense; and (3) did not demonstrate whether he effectively waived his right to counsel.
Here, defendant's testimony with respect to pleading to a DUI as a lesser offense of a DWI reflects the earlier statute, which delineated degrees of the offense. N.J.S.A. 39:4-50(a) (1966) was the more serious offense for an individual whose blood alcohol content (BAC) was between .10% and .15%. Paragraph (b) was a lesser offense of driving while "impaired" with a BAC between .05% and .10%. In 1977, the statute was amended to reflect one offense for which .10% BAC "establish[ed] the legal presumption of intoxication." State v. Nugent, 152 N.J. Super. 557, 559 (Mun. Ct. 1977). We determined that the different degrees of the offense in the earlier statute did not affect sentencing for subsequent offenses under the later statute. State v. Phillips, 169 N.J. Super. 452, 454 (App. Div. 1979) (holding that convictions of the lesser offense under (b) are considered prior convictions for sentencing under the amended statute).
Given that this offense occurred more than thirty years ago, defendant's testimony and certification that he did not know he was entitled to counsel and was not asked if he wanted an adjournment to obtain counsel is sufficient under Laurick and Hrycak.
Moreover, having found that defendant's 1976 conviction was uncounseled, Judge Cleary correctly applied the step-down provision and sentenced defendant as a second offender with respect to incarceration but as a third offender with respect to the administrative penalties. Laurick, 120 N.J. at 16; Hrycak, 184 N.J. at 365.
We affirm substantially for the reasons stated by Judge Cleary on the record of May 25, 2007.