On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-08-1826.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010
Before Judges Carchman and Messano.
Defendant Charles McAllister was indicted by the Monmouth County grand jury and charged with a single count of third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2). After his application to the Pre-Trial Intervention Program was rejected, and his appeal of the rejection was denied, defendant pled guilty pursuant to a plea agreement. In return for defendant's guilty plea to the indictment and a motor vehicle summons charging him with driving while intoxicated (DWI), N.J.S.A. 39:4-50, the State agreed to recommend: probation, conditioned on defendant serving 364 days in the county jail; the imposition of the mandatory fines and penalties pursuant to N.J.S.A. 39:4-50; and the dismissal of other disorderly persons and motor vehicle summonses. Pursuant to Rule 3:9-3(c), the judge was apprised of the plea negotiations and indicated, by way of a supplemental plea form, that he would impose a sentence of "non-custodial probation."
During the plea allocution, defendant acknowledged under oath that he struck the victim while driving his car under the influence of marijuana and that she was "seriously injured."*fn1 The judge advised, and defendant acknowledged, that pursuant to the DWI conviction, the Intoxicated Driver Resource Center (IDRC) "would do an evaluation," defendant's driver's license would be suspended, and various financial penalties imposed.
Defendant was disabled prior to the accident and was receiving Social Security disability benefits. At sentencing, defense counsel noted defendant had suffered significant physical injuries in the accident, including two broken arms that were repaired with "metal bars," two fractured legs, a fractured left ankle, and nerve damage to his right arm. As a result, defendant did "not have any use of his arms." Counsel urged the judge not to impose the twelve-hour IDRC detention period, or, alternatively, stay that portion of the sentence so that he could file "a motion." The judge concluded that the IDRC detention was mandatory but stayed imposition so that defendant could file a formal motion.
Defendant moved for relief pursuant to Rule 3:21-10, arguing that the "interest[s] of justice" permitted the judge to "change or reduce a sentence." In his brief, defendant noted that as a result of the accident, he no longer had the use of his arms, could no longer write his name, feed himself, or use the restroom alone. Defendant claimed that he would be unable to participate in the activities at the IDRC because of his physical limitations, and his wife, who had become his primary caregiver and might otherwise assist, was "the only person . . . employed in the household." Defendant also contended that because it was "unlikely that [he] w[ould] ever be able to operate a motor vehicle . . . again," he was "not within the class of persons the Legislature intended to benefit from the IDRC."
In his oral opinion, the judge noted that although "presently defendant [wa]s unable to write or have any functional use of his . . . hands or of the lower arm," "there [was] no medical proofs submitted . . . that . . . [d]efendant will never have the use of his arms." The judge also noted that it was "not clear from th[e] record what accommodations the [d]efendant could be afforded in attending the program . . . ." Additionally, the judge concluded that the imposition of a twelve-hour period of detention at an appropriate IDRC was mandatory pursuant to N.J.S.A. 39:4-50. He denied defendant's motion for reconsideration and modification of the sentence but entered "a stay of the IDRC requirement pending appeal."
Before us, defendant argues in a single point heading,
DEFENDANT'S SENTENCE TO A TWELVE-HOUR PERIOD OF DETAINMENT AT THE INTOXICATED DRIVER RESOURCE CENTER CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.
We have considered this contention in light of the record and applicable legal precedent. We affirm.
This was defendant's first DWI conviction. Pursuant to N.J.S.A. 39:4-50(a)(1)(ii), first offenders "shall be subject" to, among other things, "a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the [IDRC] . . . ." Every person so convicted "must satisfy the screening, evaluation, referral, program and fee requirements" of the IDRC. N.J.S.A. 39:4-50(b). We have said in the context of a DWI sentence, "[w]hen the Legislature imposes minimum penalties for certain offenses, the judiciary must enforce that mandate." State v. Nicolai, 287 N.J. Super. 528, 531 (App. Div. 1996) (citations omitted). Defendant does not dispute that the sentence to twelve hours of detention in an IDRC is mandatory; rather, he claims it is unconstitutional because, as applied to him, it amounts to cruel and unusual punishment. See U.S. Const. amends. VIII, XIV; N.J. Const. art. I, ¶ 12.
Initially, we note that this constitutional argument was never raised before the Law Division judge. It is, therefore, not appropriately before us. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting the "well-settled principle that . . . appellate courts will decline to consider ...