December 28, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERNEST MANNING, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-05-1673.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010 - Decided Before Judges Fisher and Simonelli.
Defendant Ernest Manning was charged with eluding and resisting arrest stemming from a motor vehicle chase with the Township of Irvington police on September 7, 2007. Defendant was also charged with several motor vehicle offenses. At the conclusion of trial, a jury acquitted defendant of eluding and resisting arrest. The trial judge convicted him of driving while his license was suspended, N.J.S.A. 39:3-40; failure to observe a traffic signal, N.J.S.A. 39:4-81; and improper right turn, N.J.S.A. 39:4-123. The judge sentenced defendant as a third-time offender under N.J.S.A. 39:3-40c and imposed a tenday jail term and the appropriate fines, and suspended defendant's driver's license for sixty days.
On appeal, defendant argues that (1) the State failed to prove he had notice of the suspension of his driver's license; (2) in finding him guilty of the motor vehicle offenses the judge improperly relied on testimony the jury rejected; and (3) the judge improperly sentenced him as a third offender without making findings of fact. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
A person whose driver's license has been suspended must challenge any deficiencies in the suspension of [his] driver's license by appealing from that decision, rather than attacking it collaterally as a defense to a charge of violating N.J.S.A. 39:3-40. An order of suspension by the Director is a decision by a state administrative agency which may only be challenged directly in the Appellate Division after all administrative remedies have been exhausted.
[State v. Ferrier, 294 N.J. Super. 198, 200 (App. Div. 1996) (emphasis added).
Defendant did not administratively appeal the suspension of his driver's license, and thus his claim he received no notice of the suspension is not properly before us.
The indictable charges are separate and distinct from the motor vehicle charges, which were properly not litigated before the jury. The trial judge was entitled to rely on his own view of the evidence in analyzing the motor vehicle offenses; he was not bound by the jury's fact findings on the indictable offenses. State v. Muniz, 118 N.J. 319, 331-32 (1990).
According to defendant's fourteen page certified driver abstract, on which the judge relied, defendant's license was suspended four times in the five-year period prior to the present driving while suspended charge. Accordingly, the judge properly sentenced defendant as a third offender.
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