December 9, 2013
KENNETH XHERAJ, Appellant,
NEW JERSEY MOTOR VEHICLE COMMISSION, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2013
On appeal from the New Jersey Motor Vehicle Commission.
Breslin and Breslin, attorneys for appellant (Kevin C. Corriston, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Valentina M. DiPippo, Deputy Attorney General, on the brief).
Before Judges Yannotti and Ashrafi.
Kenneth Xheraj appeals from a final decision of the New Jersey Motor Vehicle Commission (the MVC) suspending his driving privileges because he was convicted in New York State of driving while his ability was impaired by alcohol. The conviction was his third DWI-type offense. We affirm.
Appellant is a resident of New Jersey and has a New Jersey driver's license. He was arrested in the Town of Thompson, New York, on May 20, 2012, and charged with four traffic offenses, including driving while intoxicated (DWI), in violation of N.Y. Veh. & Traf. Law § 1192(3), and driving while ability impaired (DWAI), in violation of N.Y. Veh. & Traf. Law § 1192(1).Appellant chose not to retain counsel to represent him for the New York charges. In July 2012, he appeared in the Town of Thompson Justice Court, and all four charges were disposed by means of appellant's guilty plea on the DWAI charge. The other three charges were dismissed. Our record does not reveal whether the resolution of the charges was a result of a negotiated plea agreement.
On August 10, 2012, the MVC issued a notice of proposed suspension of appellant's driving privileges. Through counsel, appellant filed opposition and requested a hearing before the MVC. The MVC issued a written decision on December 6, 2012, denying a hearing and ordering a ten-year suspension of appellant's driver's license to begin on January 6, 2013. Subsequently, the MVC denied a stay of the suspension. This appeal followed.
Appellant does not contest that a DWI offense in another jurisdiction requires that the MVC suspend the offender's driving privileges in New Jersey. New Jersey is a signatory of the Interstate Driver License Compact (IDLC), N.J.S.A. 39:5D-1 to -14, an interstate agreement by which each participating state agrees to treat an out-of-state conviction for DWI (or driving under the influence (DUI)) as if the conviction had occurred within its own jurisdiction, as long as the out-of-state conviction was "of a substantially similar nature" as the home state's law. N.J.S.A. 39:5D-4(a)(2), (c).
Appellant contends that his DWAI conviction in New York was not for an offense "substantially similar" to DWI under N.J.S.A. 39:4-50. He argues that his New York offense involved a blood alcohol concentration (BAC) of .07% or lower, and so, it does not qualify under New Jersey law as a DWI offense authorizing suspension of his driving privileges.
In State v. Zeikel, 423 N.J.Super. 34, 48-49 (App. Div. 2011), we held that a violation of DWAI under N.Y. Veh. & Traf. Law § 1192(1) is "substantially similar" to a DWI violation in New Jersey. We applied prior precedent under the IDLC to support our holding. Zeikel, supra, 423 N.J.Super. at 45 (citing Div. of Motor Veh. v. Lawrence, 194 N.J.Super. 1 (App. Div. 1983)).
At the same time, we recognized in Zeikel that N.J.S.A. 39:4-50(a)(3) establishes an affirmative defense by which a New Jersey driver convicted in another jurisdiction may establish that the offense was not "substantially similar" to DWI. Zeikel, supra, 423 N.J.Super. at 41-42. The statute provides:
A conviction of a violation of a law of a substantially similar nature in another jurisdiction . . . shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.
In Zeikel, supra, 423 N.J.Super. at 47-48, we described the multi-part structure of the New York statute, N.Y. Veh. & Traf. Law § 1192 — separate subsections for a per se DWI offense based on the BAC level (subsection 2), a DWI offense without a BAC reading but based on observational evidence (subsection 3), and a DWAI offense (subsection 1). See also People v. Brown, 424 N.E.2d 549, 550 (N.Y. 1981) (reviewing the three relevant subsections of the New York statute). In Zeikel, supra, 423 N.J.Super. at 48, we held that a DWAI offense under subsection 1 of the New York statute is substantially similar to New Jersey's unified DWI statute, N.J.S.A. 39:4-50, which covers all three types of offenses addressed by the New York statute. See State v. Kashi, 180 N.J. 45, 48 (2004). We also held that the "substantially similar" requirement can be disproven by clear and convincing evidence that the offense in the other jurisdiction was exclusively based on a BAC of less than .08%. Zeikel, supra, 423 N.J.Super. at 43, 48-49.
Appellant contends that he proved his New York conviction was based on a BAC of less than 0.08%. His proofs consisted of a letter from a New York attorney, Henri Shawn, attaching a copy of the New York statutes we have cited and also enclosing a letter from Town of Thompson Justice Martin S. Miller, which states: "If an individual's [BAC] is less than .08% they can not be guilty of §1192(2) but may be guilty of §1192(1)." Appellant urges that these proofs establish he was convicted of an offense based on a BAC of less than .08%.
The affirmative defense provided by N.J.S.A. 39:4-50(a)(3) requires "clear and convincing evidence" that the New York conviction "was based exclusively" on a BAC of less than .08%. The letter of Town Justice Martin does not establish that appellant's charges were in fact based on a BAC of less than 08% Rather the letter merely recounts the effect and application of the New York statutes
Appellant has also attached to his appendix on this appeal a letter of his New Jersey appellate attorney dated April 10 2013 stating that the New York conviction was based exclusively on a BAC of less that 08% Counsel's letter includes handwritten notes added at the bottom by New York attorney Shawn agreeing with New Jersey counsel's statement The letter and handwritten notes are not of any evidential value because they were not part of the record before the MVC see R 2:5-4(a) ("The record on appeal shall consist of all papers on file in the court or courts or agencies below"); because they do not satisfy the formalities of a certification see R 1:4-4(b); and because attorney Shawn did not represent appellant at the Town of Thompson proceedings and his declaration is at best hearsay without any indication of the source of his information or its reliability see NJRE 802
Appellant did not present clear and convincing evidence from the New York prosecution to show that he in fact did not have a BAC of 08% or more He was not entitled to a hearing to establish that the New York conviction was for an offense that is not substantially similar to a DWI