On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-03-0503.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Axelrad, Sapp-Peterson and Espinosa.
Defendant entered a guilty plea to second-degree assault by auto for driving recklessly while under the influence within 1000 feet of school property which resulted in serious bodily injury, N.J.S.A. 2C:12-1c(3)(a) (assault by auto in a school zone), driving while intoxicated, N.J.S.A. 39:4-50 (DWI), and driving while his privileges were suspended, N.J.S.A. 39:3-40 (DWS). His timely motion to withdraw his guilty plea was denied and he now appeals. We affirm defendant's convictions for assault by auto in a school zone and DWI, and remand for a hearing regarding defendant's motion to withdraw his guilty plea to DWS.
The charges arise from an accident that occurred at approximately 2:00 a.m. on January 14, 2007 in Atlantic City. Defendant was returning from a convenience store to the Claridge Casino on Pacific Avenue, a four lane, lighted road, when he saw Robert Fields standing on the double yellow divider lines. Fields had crossed defendant's lane of traffic and was beginning to walk into the opposite lane of traffic when he backed up into defendant's lane of traffic. Defendant struck Fields, who hit the windshield and was flung more than eighty feet onto the sidewalk on the opposite side of the street. Defendant, a registered nurse, cared for Fields, who suffered a head injury and multiple fractures, until paramedics arrived.
Defendant agreed to provide breath and blood samples, which showed a blood alcohol content of .19. Defendant also gave police a statement in which he admitted striking Fields, consuming alcoholic beverages, and that his driver's license was suspended.
He was arrested on charges of assault by auto in a school zone, N.J.S.A. 2C:12-1c(3), and causing injury while driving privileges suspended, N.J.S.A. 2C:40-22b. Summonses were also issued for DWI; DWS; driving while intoxicated in a school zone, N.J.S.A. 39:4-50; driving while unlicensed, N.J.S.A. 39:3-10; reckless driving, N.J.S.A. 39:4-96; and careless driving for speeding, N.J.S.A. 39:4-97. Defendant was indicted on March 6, 2007 on the following charges: second-degree assault by auto in a school zone, N.J.S.A. 2C:12-1c(3)(a) (count one), and fourth-degree causing serious bodily injury while driving privileges suspended, N.J.S.A. 2C:40-22b (count two).
Defendant entered a guilty plea pursuant to a plea agreement to assault by auto in a school zone, DWI, and DWS. The prosecutor agreed to dismiss the remaining charges against him and to recommend that defendant be sentenced as a third-degree offender with a sentence not to exceed a New Jersey State Prison term of three years.
The transcript of May 21, 2007 reflects the following colloquy with respect to defendant's factual basis for his guilty plea to N.J.S.A. 2C:12-1c(3)(a):
COURT: All right, Mr. McDonald, the charge is that on January 14th, of this year, in Atlantic City, you drove a vehicle recklessly while driving and more specifically while intoxicated and also within a thousand feet of school property and caused serious bodily injury to Robert Fields; are you guilty of that offense?
After additional questioning, the court began to announce its finding that the defendant had knowingly, intelligently and voluntarily waived his rights in entering the plea when the prosecutor interrupted:
PROSECUTOR: Judge. Judge. I'm sorry.
And, sir, you don't dispute it was within a thousand feet of Our Lady of the Sea School, where the accident occurred?
DEFENDANT: I didn't see it, but I might have missed it, okay.
At defendant's request, his sentence was postponed several times. After receiving a "school zone map"*fn1 from the State, defense counsel advised the court on August 10, 2007 that "[t]he school zone map . . . shows basically that he is right just within or just on the edge of the sweep of the - the ambit of the school zone" and that "the school zone may include property that is not used for school purposes." Counsel argued that, although defendant "may have voluntarily, knowingly provided a factual basis [for his guilty plea], it may be supported by a fact which turns out to be incorrect[.]" Sentencing was delayed again to permit counsel to discuss this issue further with defendant.
On August 31, 2007, defense counsel asked for another continuance so that a surveyor could be retained to determine whether the prohibited conduct occurred within 1000 feet of school property. The issue to be raised in the motion was described as "that the Our Lady Star of the Sea property is not included in the school zone property. In other words, they should . . . have measured from the school, not the edge of the church property, when they designed or when they put together the school zone map." Defense counsel agreed with this description and also added that defendant's location at the time of the accident might be beyond the school zone even as defined on the school zone map. The court granted the request for a continuance, set a deadline for the filing of a motion to withdraw defendant's guilty plea, and gave counsel a briefing schedule.
Defendant's motion to withdraw his guilty plea relied upon defendant's certification, the transcript of his guilty plea and the argument of counsel. In his certification, defendant contended that he lacked sufficient knowledge at the time of his plea to provide a factual basis for committing the prohibited conduct within a school zone because he "did not know whether or not the school zone radiating from Our Lady Star of the Sea Regional School . . . swept across or included the exact accident scene[.]" He stated further that he became aware that he had "improvidently and unknowingly" entered a guilty plea when he received a survey prepared on his behalf that showed that it was the rectory and front garden area that was within a 1000 foot radius of the accident scene. Defendant did not contend that Our Lady Star of the Sea Regional School was not a "school" within the ambit of N.J.S.A. 2C:12-1c(3)(a).
On the return date for the motion, defense counsel argued that defendant failed to provide a factual basis for the school zone aspect of his guilty plea to the assault by auto charge. He contended that defendant's response to the prosecutor's question "was not unequivocal" and that defendant had "not [been] forced to actually answer the question do you dispute or not that it's a school zone." The court denied the motion without a hearing and found that defendant had given a satisfactory factual basis for the guilty plea, apparently had "buyer's remorse" about the plea, and remained unable to show that the offense did not occur in a school zone.
Pursuant to the terms of the plea agreement, the second-degree offense of assault by auto in a school zone charge was treated as a third-degree offense at sentencing and defendant was sentenced to a prison term of three years with credit for 235 days in custody. His driver's license was suspended for a period of twelve months and he was assessed appropriate fines and penalties. For the charges of DWI and DWS, the court imposed consecutive county jail sentences of 90 days and 60 days respectively, consecutive twelve month suspensions of his driver's license and additional fines and penalties.
In this appeal, defendant raises the ...