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State of New Jersey v. Jack Cordero


March 14, 2011


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 22-2009.

Per curiam.


Submitted December 13, 2010

Before Judges Sabatino and Alvarez.

Defendant Jack Cordero, Jr. appeals the sentence imposed after he entered a guilty plea to his third conviction of driving while intoxicated (DWI), N.J.S.A. 39:4-50. He contends he should have been sentenced in accord with the less severe version of the law that was in effect when he committed the offense, and that the delay between the arrest and the disposition of the charge violated his right to a speedy trial. For the reasons that follow, we affirm.

On March 21, 2005, defendant was charged in the Township of Old Bridge with DWI, reckless driving, N.J.S.A. 39:4-96, failure to produce a registration, N.J.S.A. 39:3-29, consumption of an alcoholic beverage in an automobile, N.J.S.A. 39:4-51a, and having an open container of alcoholic beverage in a motor vehicle, N.J.S.A. 39:4-51b.*fn1 Defendant's Alcotest reading was .21% blood alcohol content. He entered a guilty plea on February 25, 2009.

Pursuant to N.J.S.A. 39:4-50a(3), defendant was sentenced as a third-time offender to a $1006 fine, a ten-year loss of driver's license, and a 180-day jail term, which penalties were stayed pending appeal. Defendant thereafter appealed to the Law Division. See R. 3:23. On August 25, 2009, the Law Division judge, on de novo review, again found defendant guilty, based on his guilty plea, and imposed the same sentence; the jail term was stayed pending appeal.

Defendant was first convicted of DWI in September 2003. He was also charged with DWI in Wall Township sometime after the 2005 Old Bridge arrest, on a date not specified in the record. Because defendant was administered a Breathalyzer - and not an Alcotest - after his arrest, however, he was convicted and sentenced on that charge in August 2005, literally years prior to the disposition of his earlier Old Bridge offense.

On October 14, 2005, a few months after issuance of the Old Bridge summonses, the Law Division stayed all DWI Alcotest prosecutions in Middlesex County. Ultimately, the Supreme Court on January 10, 2006, directed that prosecution of repeat offenders was to proceed "in the normal course," except where the conviction resulted solely from an Alcotest reading. Any defendant could, at his or her option, enter a guilty plea while reserving the right to challenge the conviction if the Alcotest was found unreliable. State v. Chun, 194 N.J. 54, 67-68 (2008).

On March 17, 2008, the Supreme Court issued its final opinion in State v. Chun, determining the Alcotest was indeed scientifically reliable. Id. at 65. Defendant, who had chosen to wait, subsequently entered a guilty plea on the 2005 Old Bridge charge on February 25, 2009.

At the time of defendant's first arrest in 2003, the DWI statute and a supplementary provision explaining permissible sentences read in pertinent part:

(2) For a second violation, a person . . . shall be ordered by the court to perform community service for a period of 30 days . . . and shall be sentenced to imprisonment for a term of not less than 48 consecutive hours . . . nor more than 90 days[.]

(3) For a third or subsequent violation, a person . . . shall be sentenced to imprisonment for a term of not less than 180 days except that the court may lower such term for each day, not exceeding 90 days, served performing community service[.]

[L. 2002, c. 34, § 17 (N.J.S.A. 39:4-50(a)(2), (3)).]

A person who has been convicted of violating [N.J.S.A.] 39:4-50 . . . and in pursuance thereof has been imprisoned in a county jail or workhouse . . . may[,] in the discretion of the court, be released on a work release program. . . .

A person sentenced to an inpatient rehabilitation program may upon petition by the treating agency be released, by the court, to an outpatient rehabilitation program for the duration of the original sentence.

[L. 1977, c. 29, § 5 (N.J.S.A. 39:4-51).]

On January 20, 2004, "Michael's Law" was enacted, making sweeping changes to New Jersey's repeat DWI offender punishment scheme. Third or subsequent offenders would now be sentenced to at least 180 days imprisonment in the county jail, with the possibility of spending the final ninety days in an Intoxicated Driver Resource Center approved in-patient treatment facility.

L. 2003, c. 315, § 2. Additionally, such offenders were no longer eligible to reduce their period of incarceration through participation in work release or outpatient treatment programs.

L. 2003, c. 315, § 3.

Thus, after January 20, 2004, a third time offender could only be sentenced to a term of imprisonment proportionately reduced by treatment at an inpatient facility. As this court made clear in State v. Luthe, 383 N.J. Super. 512, 515 (App. Div. 2006), no other alternatives are possible.

On appeal, defendant contends because he was not made aware of these increased penalties at either the time of his first offense in 2003 or by the Wall Township municipal court following its disposition of defendant's chronological third DWI charge, he cannot be subject to the enhanced penalties set forth in Michael's Law. He further contends that he was improperly denied his right to a speedy trial by the 2006 Chun order.

Certainly courts are required to notify defendants of the consequences of additional DWI convictions, N.J.S.A. 39:4-50(c), and the relevant notification provision has been included in N.J.S.A. 39:4-50 since at least December 1997. When a defendant is sentenced, however, the penalties must comply with the law then in effect even if the prior warnings did not anticipate that the Legislature would subsequently amend the law and stiffen the applicable penalties. See State v. Petrello, 251 N.J. Super. 476, 479 (App. Div. 1991). Defendant contends he is exempt from that outcome because the jeopardy became more severe than at the time of his first offense.

A defendant has no vested right to be sentenced in the manner previously explained to him. Instead, the punishment imposed must accord with the law in effect at the time. "When the Legislature imposes minimum penalties for certain offenses, the judiciary must enforce that mandate . . . . No defendant can claim a legitimate expectation of finality in a sentence below the statutorily mandated minimum." State v. Nicolai, 287 N.J. Super. 528, 531-32 (App. Div. 1996); State v. Eigenmann, 280 N.J. Super. 331, 337 (App. Div. 1995).

Defendant's speedy trial argument is equally flawed. In determining whether a defendant's right to a speedy trial has been abrogated, we utilize the four-prong test created in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and consider the length of the delay, the reason for the delay, the defendant's assertion of his right to be tried, and any resulting prejudice. Id. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117.

In this case, defendant never requested an expedited hearing. The substantial delay was occasioned entirely by the Supreme Court's necessary determination of whether the Alcotest is reliable, which examination benefited the public as a whole, including defendant. Defendant does not assert that had he proceeded to trial in 2005, instead of entering a guilty plea in 2009, the outcome would have been different.

Insofar as any prejudice, as the State points out, there is every reason to believe a defendant facing a ten-year loss of license and 180-day potential jail term in 2005 would perceive a benefit from his silence and the resulting delay. The net effect was that defendant's right to drive was reinstated after the conclusion of his suspension from Wall Township. By law, suspensions must be consecutive. N.J.S.A. 39:4-50(a)(3). Instead of twelve consecutive years without a license, defendant's Wall Township suspension presumably ended in August 2007, while the Old Bridge suspension was stayed until February 2009. Therefore, at a minimum, defendant was able to drive from September 2007 to February 2009. This resumption of privilege defendant no doubt perceived to be a benefit, not a detriment. Hence it is clear that there was no violation of defendant's right to a speedy trial.

Affirmed. The stay of defendant's jail term is vacated.

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