On appeal from the Superior Court of New Jersey, Law Division, Warren County, Municipal Appeal No. A-30-08-Y08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and Waugh.
Defendant Francis Stine appeals from the sentences imposed following his plea of guilty to driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50, and DWI with a minor in the vehicle, contrary to N.J.S.A. 39:4-50.15(b). Defendant was sentenced in the municipal court as a second offender under N.J.S.A. 39:4-50 and received a loss of driving privileges for two years, fines and costs totaling $1014, thirty days of community service, a two-day term in jail, and forty-eight hours at the Intoxicated Driver's Resource Center (IDRC). On the N.J.S.A. 39:4-50.15(b) offense, he was sentenced to a consecutive six-month loss of driving privileges, fines and costs totaling $433, five days of community service, and a forty-five day jail term. On de novo review in the Law Division, the judge imposed the same sentence that the municipal judge imposed. We now affirm in part and remand for de novo resentencing.
On November 27, 1979, defendant was charged with allowing a drunk driver to operate a motor vehicle, contrary to N.J.S.A. 39:4-50. He was convicted after a bench trial on March 3, 1980. On December 8, 1984, defendant was charged with operating a motor vehicle while intoxicated, also contrary to N.J.S.A. 39:4-50. He pled guilty on February 28, 1985, and was sentenced as a second offender in the municipal court to forty-eight hours in jail, thirty days of community service, and a two-year loss of driving privileges. He was ordered to pay a $750 fine, $20 in court costs, and a $100 DWI surcharge. However, on June 11, 1985, the Law Division judge on de novo review disagreed with that sentence, concluding that defendant should be sentenced as a first offender because, as defendant argued, the DWI-allowing conviction should not be bundled with the DWI conviction to determine the number of offenses. Defendant was sentenced to twelve hours in an IDRC, a six-month loss of driving privileges, and was ordered to pay a $350 fine and $20 in court costs. Neither party appealed this decision.
On January 21, 2008, defendant was arrested by Greenwich Township Patrolman Sean McLaughlin and charged with DWI, contrary to N.J.S.A. 39:4-50; DWI with his ten-year-old son in his vehicle, a disorderly persons offense under N.J.S.A. 39:4-50.15(b); refusal to submit to alcohol testing, contrary to N.J.S.A. 39:4-50.4a; failure to maintain lane, contrary to N.J.S.A. 39:4-88(b); careless driving, contrary to N.J.S.A. 39:4-97; and three charges of failure to exhibit his driver's license, registration, and insurance card, all contrary to N.J.S.A. 39:3-29.
Defendant pled guilty to the charges of DWI and DWI with a minor on October 20, 2008. He admitted drinking six beers before operating his vehicle while his wife and son were passengers. Defendant argued that the municipal judge was bound by the June 11, 1985, Law Division determination that he was a first offender. Therefore, he contended he should again be sentenced as a first offender pursuant to the step-down provision of N.J.S.A. 39:4-50, since more than ten years had elapsed since his December 8, 1984, offense. The judge concluded that he was not bound by the June 11, 1985, sentence, which he considered erroneous, and determined to sentence defendant as a step-down second offender. Defendant further contended that no jail time should be imposed on the disorderly persons offense because he had no criminal record, but the judge disagreed.
On the DWI charge, the judge sentenced defendant to two days in jail, forty-eight hours in an IDRC, 30 days of community service, and a two-year loss of driving privileges, and ordered defendant to pay a $656 fine, $33 in court costs, a $50 Violent Crimes Compensation Board (VCCB) surcharge, a $75 Safe Neighborhood fine, and two $100 driving-enforcement surcharges.
On the disorderly persons offense of DWI with a minor, the judge sentenced defendant to forty-five days in jail, five days of community service, and a six-month consecutive loss of driving privileges, and ordered defendant to pay a $400 fine and $33 court costs.
Defendant appealed both sentences, seeking de novo review in the Law Division. On May 12, 2009, the Law Division judge issued a written decision in which he noted that our Supreme Court in State v. Kashi, 180 N.J. 45, 48 (2004), held that N.J.S.A. 39:4-50 "is 'one offense that may be proved by alternative evidential methods,'" making defendant a third offender. He concluded that the 1985 Law Division decision "is immaterial to these proceedings for it has no affect [sic] upon the actual number of violations committed by the defendant." He found "beyond a reasonable doubt that the defendant should be sentenced as a second-offender and that the sentence imposed by the Greenwich Township Municipal Court was neither punitive, nor irrational. It is an appropriate sentence and should be immediately enforced."
As to the disorderly persons offense of DWI with a minor, he found aggravating factor (3),*fn1 because "defendant's previous convictions for drunk driving indicate that it is very likely that the defendant will commit a similar crime in the future." He also found aggravating factor (9),*fn2 because "[d]runk driving imposes a danger to fellow motorists on the road as well as to pedestrians who may be within the realm of danger," and inferentially, defendant and others must be deterred from drunk driving. He also found mitigating factor (7),*fn3 because defendant had no prior criminal record. He concluded: "The court finds that the aggravating factors... outweigh the mitigating factors and, ...