On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 22-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...