NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 7, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2012-018.
Pascarella & Associates, P.C., attorneys for appellant (Stephen M. Pascarella, of counsel; Laura M. Majewski, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Koblitz and Accurso.
Defendant Edward E. Lawrence appeals from the August 30, 2012 order of the Law Division denying his application to withdraw his guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, and sentencing defendant as a second offender.We affirm except insofar as defendant should not have been sentenced as a second offender pursuant to N.J.S.A. 39:4-50(a)(3). We remand only for resentencing as a first offender.
Defendant was stopped for speeding and failed the field sobriety tests performed by the officer. After not submitting sufficient air for a valid breath sample, defendant was charged with DWI and refusal, N.J.S.A. 39:4-50.2. He pled guilty to DWI, admitting that he had consumed "two alcoholic beverages and two beers" prior to driving. The municipal judge suggested that the refusal charge be dismissed, and the State agreed. The judge then sentenced defendant as a second offender, although this was his third conviction, because his last conviction occurred more than ten years earlier. N.J.S.A. 39:4-50(a)(3).
Defendant sought a trial de novo before the Law Division, seeking to withdraw his guilty plea because his lawyer had not pursued a defense based on his diagnosis of Parkinson's disease, which he claimed could have caused the police officer to misconstrue his inability to perform the field sobriety tests. Defendant also maintained that he should have been sentenced as a first offender.
The Law Division denied both requests and re-imposed the sentence of the Municipal Court: a two-year loss of license, $706 in fines, $33 court costs, $50 VCCB, $100 DWI surcharge, $100 DDE Fund, $75 SNSF, Forty-eight hours at the Intoxicated Driver Resource Center (IDRC), thirty days community service and one year of an ignition interlock device.
Defendant makes the following arguments on appeal:
POINT I: THE LAW DIVISION PROPERLY HAD JURISDICTION OF DEFENDANT'S MOTION ...