On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4881.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Fasciale.
Defendant appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. He contends that the court erred by sentencing him as a second-time offender. We disagree and affirm.
On August 29, 2009, defendant received a summons for DWI.*fn1
He submitted to a breathalyzer test, which confirmed his blood alcohol content of .10%, and pled guilty. Defendant had previously pled guilty in New York to driving while ability impaired. As a result, a Municipal Court judge treated defendant's DWI conviction as a second offense, sentenced him to two years' loss of license, and imposed the appropriate fines and penalties. Defendant then filed an appeal to the Law Division.
Defendant contended in the Law Division that his New York conviction did not constitute a "previous offense" under N.J.S.A. 39:4-50 because his New York offense was operating a motor vehicle while ability impaired with a blood level of under .10%, rather than .10% or more. The Law Division judge disagreed, used the New York conviction as a "prior offense," and imposed a two-year loss of license with the appropriate fines and penalties. Defendant then filed this appeal.
On appeal, defendant raises the following argument:
DEFENDANT SHOULD HAVE BEEN SENTENCED AS A FIRST OFFENDER AS HIS PLEA IN NEW YORK TO VTL 1192.1 SHOULD NOT BE FOUND TO BE A PRIOR OFFENSE UNDER N.J.S.A. 39:4-50
In a matter such as this, our scope of review is limited. Following defendant's conviction in municipal court, he appealed to the Law Division pursuant to Rule 3:23-1. See, e.g., State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division judge then conducted a trial de novo on the municipal court record pursuant to Rule 3:23-8. See, e.g., State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). Here, because the facts are undisputed, our application of the law to the facts is de novo. See, e.g., Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 376 (1995)); State v. Johnson, 42 N.J. 146, 158-59 (1964).
We conclude that defendant's DWI conviction was properly considered his second offense. Defendant pled guilty in New York to driving while ability impaired, N.Y. Veh. & Traf. Law § 1192.1 (Consol. 2011), which states in part that:
Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is ...