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State v. Ewald-Newman

Superior Court of New Jersey, Appellate Division

November 20, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
TERRY EWALD-NEWMAN, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 21, 2013

On appeal from Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. MCA-04-12.

Helmer, Conley & Kasselman, P.A. attorneys for appellant (Duane R. Bell, of counsel; Patricia B. Quelch, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Joseph D. Rutala, Assistant Prosecutor, of Counsel and on the brief).

Before Judges Yannotti and Ashrafi.

PER CURIAM

Defendant Terry Ewald-Newman appeals from her conviction following a guilty plea in the municipal court to a violation of N.J.S.A. 39:4-129(b), leaving the scene of a motor vehicle accident. We affirm.

On January 17, 2012, defendant was driving when her car accidentally slid into a ditch. She left the scene to find a tow truck. The police arrived and eventually issued five summonses to defendant: driving while intoxicated (DWI), N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; leaving the scene of an accident, N.J.S.A. 39:4-129; failure to report an accident, N.J.S.A. 39:4-130; and failure to exhibit an insurance card, N.J.S.A. 39:3-29.

On March 21, 2012, defendant responded to the summonses with counsel at the Pennsville Municipal Court. Counsel announced to the judge that defendant and the prosecutor had reached an agreement on disposition of the charges. Defendant would plead guilty to leaving the scene of an accident and the prosecution would dismiss the other charges. Because a Supreme Court directive restricts dismissal of a DWI charge by plea bargaining, see State v. Kent, 391 N.J.Super. 352, 390 (App. Div. 2007); Guideline 4, Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII at 2501 (2014), the prosecutor explained why the DWI charge would be dismissed. The charge was based on a finding of Oxycodone in a urine sample provided by defendant after her arrest, and defendant had a prescription for the pain medication. The prosecutor had concluded the State could not prove that defendant's driving was impaired as a result of taking the prescribed Oxycodone.

The prosecutor also stated that the State was seeking a six-month suspension of defendant's driving privileges for the leaving-the-scene charge. The judge pointed out that a conviction of N.J.S.A. 39:4-129(a) for leaving the scene of an accident with injuries requires a one-year suspension of driving privileges. Defendant stated that she was not agreeable to a guilty plea with a one-year license suspension. The plea was not taken at that time. Instead, the court determined that both sides were ready for trial to be conducted the same day.

While waiting for the trial to begin, the parties negotiated further. They agreed to new terms by which defendant would plead guilty to a violation of N.J.S.A. 39:4-129(b), which only requires a six-month license suspension. That subsection of the statute prohibits leaving the scene of an accident that results only in damage to a vehicle.

Defendant returned to the court, and the judge engaged in further discussion on the record with defendant and her attorney about the decision to plead guilty. The court provided clear notice to defendant of the sentence she would receive with a guilty plea to the amended charge. Defendant agreed to the new terms and pleaded guilty to the amended charge. The municipal court sentenced her to the six-month license suspension, a fine of $200, and costs of $33.

Despite the plea agreement, defendant appealed the conviction to the Law Division pursuant to Rule 3:23. Counsel for defendant argued in the Law Division that the conviction should be vacated and the leaving-the-scene charge dismissed because N.J.S.A. 39:4-129(b) requires proof of damage to the vehicle and no such proof was presented during the plea hearing in the municipal ...


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