On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Burlington County, Municipal Appeal No. 09-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 9, 2009
Before Judges Stern and Lyons.
Defendant appeals from a judgment of conviction for Driving While Intoxicated, N.J.S.A. 39:4-50. She was sentenced in the municipal court as a second offender to forty-five days in custody and her license was suspended for two years.*fn1 The custodial portion of the sentence was stayed pending appeal to the Law Division. Defendant was also convicted of reckless driving which she does not challenge before us.
We are told that defendant's car was observed by passing motorists stopped half way off the road. Her feet were hanging out of her car with her head to her chest. She was unresponsive and spitting up. When helped from the vehicle, defendant stumbled to a fence and back to the passenger side of the car.
We are further advised that the responding police officer saw that defendant's eyes were glassy, he could smell alcohol on her breath and that defendant told him that she had been drinking at the Marlton Tavern. She lost consciousness and emergency medical technicians (EMTs) were called to the scene. Defendant had a .237 BAT. Intoxication was stipulated but the question of how she got to the scene was not.
Defendant's argument, as stated in the table of contents of defendant's brief, is "the defendant should have been convicted of third degree offenses." Only one legal argument is presented. The point heading is "the defendant should not have been sentenced to a period of incarceration." The conviction is not challenged. Defendant challenges her sentence because it was not imposed de novo in the Law Division, the aggravating and mitigating factors were neither listed nor balanced, and no reasons were stated to justify the forty-five day custodial term.
Subtitle 3 of the Code of Criminal Justice, relating to sentencing, applies to the sentencing process for motor vehicle offenses including DWI convictions although the Code otherwise generally does not. See N.J.S.A. 2C:1-4c; 2C:1-5b; 2C:1-14k; State v. Taimanglo, 403 N.J. Super. 112 (App. Div. 2008), certif. denied, 197 N.J. 477 (2009). After defense counsel stated that he did not have "anything that [he wanted the Law Division] to evaluate further with respect to the issue of sentencing," the judge merely said "having made an independent review of the circumstances and facts in this case that the sentence imposed in the court below was appropriate and legal for the offenses charged, and I will impose the same sentence as was imposed in the court below . . . ." The sentence should have been imposed de novo, although not greater than that imposed by the municipal judge, State v. Taimanglo, supra. As a custodial sentence was imposed and there was no mandatory incarceration for the offense, we remand for de novo sentencing, including a necessary statement of reasons for the time imposed.*fn2
A defendant may file a municipal appeal, if for no other reason, to obtain a new sentencing procedure and reconsideration of his or her sentence. See State v. Mull, 30 N.J. 231, 239-40 (1959).
By remanding to the Law Division for resentencing, we do not address the "excessiveness" issue or conclude that the sentence is excessive.