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State v. Faison

Superior Court of New Jersey, Appellate Division

November 29, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
LEON FAISON, Defendant-Appellant.

          Submitted October 17, 2017

         On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-11-2820.

          Fusco & Macaluso Partners, LLC, attorneys for appellant (Amie E. DiCola, on the brief).

          Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

          Before Judges Reisner, Hoffman and Gilson.

          OPINION

          HOFFMAN, J.A.D.

         Defendant Leon Faison appeals from a March 18, 2016 judgment of conviction for operating a motor vehicle while his license was suspended for a second or subsequent driving while intoxicated (DWI) conviction, N.J.S.A. 2C:40-26(b). He also appeals from a June 19, 2015 order denying his motion to dismiss the indictment. For the reasons that follow, we reverse and remand for further proceedings consistent with this opinion.

         I

         In 2010, police charged defendant with DWI on two separate dates, September 2 6 and October 16, both times in Bloomfield Township. Defendant retained the services of an attorney who failed to appear in court multiple times. This attorney filed a motion to withdraw as counsel on May 11, 2011; however, on May 24, 2011, when defendant appeared to enter a plea to each charge, the court instructed the withdrawing attorney[1] to represent defendant, against the wishes of both defendant and the attorney. According to defendant, the attorney advised him to plead guilty to both DWI charges and he reluctantly complied. Accordingly, the municipal court suspended defendant's license for two years on the second conviction.

         On August 25, 2012, police charged defendant with DWI and driving with a suspended license. Regarding the same incident, a grand jury indicted defendant in November 2013, charging him with fourth-degree driving during a period of license suspension for a second or subsequent DWI conviction, N.J.S.A. 2C:40-26(b).

         On April 3, 2014, defendant filed a petition for post-conviction relief (PCR) for the two DWI convictions entered on May 24, 2011. Ultimately, on November 14, 2014, the Law Division vacated both DWI convictions after the Bloomfield Municipal Court could not produce a transcript of the May 24, 2011 proceedings, "due to technical errors, " and an attempt to recreate the record proved unsuccessful. The same order remanded both charges to the municipal court for trial.

         On February 3, 2015, defendant appeared in municipal court for trial on the remanded charges. After the court dismissed the September 26, 2010 DWI charge, defendant entered a guilty plea to the October 16, 2010 DWI charge.

         Thereafter, defendant filed a motion to dismiss the indictment charging him with violating N.J.S.A. 2C:40-26(b). After the Law Division denied his motion, defendant stipulated to a bench trial and the judge found him guilty as charged. Pursuant to N.J.S.A. 2C:40-26(c), the judge sentenced defendant to the ...


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