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State v. Perry

Superior Court of New Jersey, Appellate Division

March 3, 2015

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
IDRIS R. PERRY, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
CARMEN NAY, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
RAYMOND EVANS, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
CHERYL PAPP, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
TAMMY M. MCINTYRE, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
BRADLEY BREWER, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
RICHARD J. WISSER, Defendant-Appellant

Argued and Submitted: October 29, 2014 (A-1767-13, A-1768-13, A-1769-13, A-1770 13, A-2533-13)  (A-2531-13, A 2536-13)

Approved for Publication March 3, 2015.

Page 123

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 13 01-0163 (A-1767-13); 13-05-0689 (A-1768-13); 13-03-0370 (A 1769 13); 13-06-0788 (A 1770 13). On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13 02-0624 (A-2531-13). On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-08-0889 (A-2533-13). On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 13 03 0600 (A-2536-13).

Brian D. Gillet, Assistant Prosecutor, argued the cause for appellant State of New Jersey in A 1767 13, A-1768-13, A 1769 13, A-1770-13 ( Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the briefs).

Anthony Aldorasi, Assistant Deputy Public Defender, argued the cause for appellant Brewer in A-2533-13 ( Joseph A. Krakora, Public Defender, attorney; Mr. Aldorasi, of counsel and on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for appellant State of New Jersey in A 2531-13 ( Deborah A. Hay, Assistant Prosecutor, of counsel and on the brief).

Stephen J. Buividas, attorney for appellant Wisser in A-2536-13.

Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for respondents Perry (A-1767-13), Nay (A-1768-13), Evans (A 1769 13), and Papp (A-1770-13) ( Joseph E. Krakora, Public Defender, attorney; Ms. Friedman, of counsel and on the brief).

Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent State of New Jersey in A 2533-13 ( Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).

Stefankiewicz & Barnes, attorneys for respondent McIntyre in A-2531-13 ( David A. Stefankiewicz, of counsel and on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent State of New Jersey in A 2536-13 ( Samuel Marzarella, Assistant Prosecutor, of counsel and on the brief).

Before Judges ALVAREZ, WAUGH, and MAVEN. The opinion of the court was delivered by ALVAREZ, P.J.A.D.

OPINION

Page 124

[439 N.J.Super. 518] OPINION

[439 N.J.Super. 519] ALVAREZ, P.J.A.D.

N.J.S.A. 2C:40-26(a) and (b) make driving while suspended a fourth-degree criminal offense punishable by a mandatory minimum jail term of 180 days under certain circumstances stemming from driving while intoxicated (DWI), N.J.S.A. 39:4-50, or refusal to submit to chemical testing (refusal), N.J.S.A. 39:4-50.4(a). In these seven appeals, consolidated for decision, we address whether charges can be brought under the statute when the act of driving occurs beyond the determinate sentenced term of suspension, but before reinstatement, while the driver continues

Page 125

on administrative suspension. We conclude that the statute criminalizes the operation of a motor vehicle only while the operator is serving the court-imposed term of suspension, and not thereafter.

I

We briefly summarize the procedural history and factual circumstances surrounding each defendant's charges. In each case, either the State or defendant was granted leave to appeal or filed a timely appeal as of right.

A.

Perry

On May 12, 2011, Idris Perry pled guilty to DWI and refusal, and his driving privileges were suspended for a 300-day period, ending March 7, 2012. Perry was issued a summons for driving while suspended, N.J.S.A. 39:3-40, on the day before his DWI and refusal suspension term would have expired. On May 30, 2012, he was again charged with operating a motor vehicle during a period of suspension, resulting in the indictment on appeal under N.J.S.A. 2C:40-26(a).

Judge Douglas K. Wolfson granted Perry's motion to dismiss his indictment. The State thereafter moved for reconsideration. In a written opinion dated October 21, 2013, consolidating his [439 N.J.Super. 520] decisions in the Perry, Carmen Nay, Raymond Evans, and Cheryl Papp cases, Judge Wolfson denied the State's motion.

Nay

On February 19, 2008, Nay pled guilty to DWI, resulting in the suspension of her driving privileges for a seven-month[1] period. Nay was convicted of driving while suspended on April 30, June 12, and September 22, 2010. Nay did not restore her driver's license after the suspension periods expired. On March 15, 2013, Nay was charged with driving with a suspended license in North Brunswick. She was indicted for operating a motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(a).

Nay's motion to dismiss the indictment was granted by Judge Wolfson after oral argument on September 23, 2013. Her matter was included in Judge Wolfson's consolidated ...


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