On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 06-03-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2012
Before Judges Sapp-Peterson and Haas.
Defendant George Korpita was convicted in the Sparta Municipal Court of driving while intoxicated (DWI), N.J.S.A. 39:4-50, refusal to submit to a chemical test (refusal), N.J.S.A. 39:4-50.4a, and failure to keep right. N.J.S.A. 39:4- 82.
Following a trial de novo in the Law Division, he was again found guilty.
Defendant had previously been convicted of DWI. He had no prior
convictions for refusal. The trial judge sentenced defendant, as a
second offender, to a two-year license revocation, forty-eight hours
at an Intoxicated Driver Resource Center (IDRC) program, and thirty
days community service for the DWI; and, as a second offender, to a
consecutive two-year license revocation for refusal.*fn1
The judge merged the failure to keep right with the DWI and
imposed appropriate fines and penalties.
Defendant appealed and we affirmed in an unpublished opinion. See State v. Korpita, No. A-3847-09 (App. Div. March 2, 2011). Thereafter, defendant moved before the Law Division to correct an illegal sentence, asserting he should have been sentenced as a first-time offender on the refusal charge.
On appeal, defendant raises the following contentions:
A First Conviction For a Violation of N.J.S.A. 39:4-50.[4a] Should Be Sentenced as a First Conviction No Matter How Many Violations the Defendant Has in Connection with N.J.S.A. 39:4-50.
POINT II The Seven Month Sentence to Be Imposed Should Be Concurrent with the Two Year Suspension for a Violation of N.J.S.A. 39:4-50.
Defendant's arguments concerning the legality of his sentence are based upon the Supreme Court's decision in State v. Ciancaglini, 204 N.J. 597 (2011). In Ciancaglini, the defendant had previously been convicted of refusal under N.J.S.A. 39:4-50.4a. Id. at 600. He was subsequently convicted of DWI and the issue was whether, based upon the prior refusal conviction, he should be sentenced as a first or second offender under N.J.S.A. 39:4-50, which provides for enhanced penalties for repeat offenses. Ibid. The defendant relied upon our decision in State v. DiSomma, 262 N.J. Super. 375, 383 (App. Div. 1993), where we held that a conviction for refusal was not a prior violation under the DWI statute, N.J.S.A. 39:4-50.
The Court held that N.J.S.A. 39:4-50 precludes a prior refusal conviction from being used as a sentencing enhancement for a ...