On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-078.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Waugh.
In this appeal, we address the issue of whether a defendant sentenced to the county jail for a violation of N.J.S.A. 39:3-40(f)(2), may serve that sentence in the Sheriff's Labor Assistance Program (SLAP), N.J.S.A. 2B:19-5. Consistent with the principles enunciated in our decision in State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006) as well as the municipal court opinion in State v. White, 413 N.J. Super. 301 (Mun. Ct. 2010), we conclude that a portion of the sentence imposed pursuant to the statute must be served in the county jail and may not be served in the SLAP program. Accordingly, we reverse the decision of the Law Division, in part, and remand for resentencing.
We do not dwell on the details of the offense that gave rise to the present appeal except to note that defendant Jennifer Bisco, now twenty-three, in what is portrayed as a suicide attempt, was involved in a motor vehicle accident that resulted in serious and profound injuries to an innocent third-party, the driver of another vehicle. At the time of the incident, defendant's license was suspended because she had been found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50.*fn1
As a result of a plea agreement, defendant entered a plea to a violation of N.J.S.A. 39:3-40. The focus of discussion at sentencing was about defendant's medical and psychiatric history. She is described in the record as having been the subject of a difficult childhood. She suffers from severe depression and other mental health issues and has a history of suicide attempts and multiple hospitalizations to address her substance addiction and related issues. Since this incident, she has been hospitalized, and at the time of the appeal was participating in an in-patient rehabilitation program. The State neither contests nor challenges the bona fides of defendant's disabilities. In addition to the mandated license suspension, fines and penalties, the municipal judge sentenced defendant, pursuant to N.J.S.A. 39:3-40(e), to a 45-day jail sentence, and to an additional 10-day jail sentence pursuant to N.J.S.A. 39:3-40(f) (driving while suspended as a result of a violation of N.J.S.A. 39:4-50).
At the trial de novo, the Law Division judge concluded that the combined sentences totaling fifty-five days would be served in the SLAP program as an alternative to incarceration. The State appealed, and we stayed the imposition of the sentence as it related to defendant's involvement in the SLAP program.
In his supplemental opinion, the judge relied on the original legislative formulation of N.J.S.A. 39:4-50(a)(3), which purported to criminalize third offense DWI charges. Ultimately, the statute was not enacted in that form, but it did mandate a 180-day jail sentence in a county jail or workhouse.
In addition, the judge focused on the use of SLAP as an incarceration alternative in other instances of a violation of N.J.S.A. 39:3-40.
In Luthe, we held that a SLAP sentence was not appropriate for a defendant sentenced as a DWI third offender pursuant to N.J.S.A. 39:4-50(a)(3). We found that a labor-assistance program, such as SLAP, is not "custodial." Id. at 515. See also State v. Kotsev, 396 N.J. Super. 389 (App. Div.) (holding that SLAP is not the equivalent of incarceration or a workhouse), certif. denied, 193 N.J. 276 (2007); State v. Grabowski, 388 N.J. Super. 431, 439 (Law Div. 2006) (referring to SLAP as a non-custodial alternative to jail). Indeed, N.J.S.A. 2B:19-5, the enabling legislation for SLAP, indicates that this type of program is an "alternative to direct incarceration"; to that end, "SLAP inmates are not confined at the jail when not performing their labor functions." Grabowski, supra, 388 N.J. Super. at 439.
The statutory construct is similar here. N.J.S.A. 39:3-40 provides in relevant part:
No person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition.
Except as provided in subsections i. and j. of this section, a person violating this section shall be subject to the following ...