On appeal from Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 19-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2008
Before Judges Skillman and Grall.
Defendant pled guilty in the Hamilton Township Municipal Court to driving while under the influence of alcohol, in violation of N.J.S.A. 39:4-50. The municipal court judge sentenced defendant as a third-time offender to serve a 180-day jail term and to forfeit his driving privileges for ten years. The judge also imposed the statutorily mandated fines, penalties, fees and assessments. On appeal, the Law Division imposed the same sentence.
On his appeal to the court, defendant presents the following arguments:
I. THIS COURT SHOULD READ THE DWI STATUTE IN THE LIGHT MOST FAVORABLE TO THE DEFENDANT AND TREAT HIM AS A SECOND OFFENDER FOR SENTENCING PURPOSES.
II. THIS COURT SHOULD VACATE DEFENDANT'S CONVICTION AND REMAND HIS CASE FOR A JURY TRIAL BECAUSE HE FACED SERIOUS QUASI-CRIMINAL AND CIVIL CONSEQUENCES AS A DIRECT RESULT OF THE MUNICIPAL COURT PROCEEDINGS.
Defendant's argument that he should have been sentenced as a second-time rather than a third-time offender is governed by our decision in State v. Burroughs, 349 N.J. Super. 225 (App. Div.), certif. denied, 174 N.J. 43 (2002), which held that a defendant who commits a third violation of N.J.S.A. 39:4-50 within ten years of a second violation should be sentenced as a third offender even though more than ten years elapsed between his first and second offenses and, in accordance with N.J.S.A. 39:4-50(a)(3), the second offense was treated as a first offense for sentencing purposes. As defendant concedes, the facts of this case are not distinguishable in any material respect from those in Burroughs. Defendant has not presented any persuasive argument for us to depart from our holding in Burroughs.
By pleading guilty without any reservation, defendant waived his argument that a person charged with a third violation of N.J.S.A. 39:4-50(a) is entitled to a jury trial. In any event, the Supreme Court rejected this argument in State v. Hamm, 121 N.J. 109 (1990), cert. denied, 499 U.S. 947, 111 S.Ct. 1413, 113 L.Ed. 2d 466 (1991), which is binding upon this court.
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