Opinion
DOCKET NO. A-5802-13T4
11-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHONG KIM, Defendant-Appellant.
Kimm Law Firm, attorneys for appellant (Michael S. Kimm, Thomas W. Park and Sung H. Jang, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-08-14. Kimm Law Firm, attorneys for appellant (Michael S. Kimm, Thomas W. Park and Sung H. Jang, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In December 2013, defendant Chong Kim entered his fourth guilty plea in eighteen years to driving while intoxicated, N.J.S.A. 39:4-50. Because more than ten years had elapsed between defendant's third and fourth convictions, and he did not have counsel when he pled guilty the first time, Judge Lafferty sentenced defendant in Ridgefield Municipal Court as a third offender for purposes of imposing administrative penalties and as a second offender for purposes of a custodial term. Accordingly, Judge Lafferty sentenced defendant to forty-eight hours in jail, with credit for time served, imposed a $1006 fine, a $50 VCCB (Violent Crimes Compensation Board) penalty, a $75 SNSF (Safe Neighborhoods Services Fund) assessment, a $100 DDEF (Drunk Driving Enforcement Fund) assessment, a $100 DWI surcharge, $33 for court costs, suspended his driver's license for ten years, and required installation of an ignition interlock device for the ten-year period.
Pursuant to a reservation, defendant challenged his sentence in the Law Division arguing that the "step-down" provision of N.J.S.A. 39:4-50 should be applied to the non-custodial aspects of his sentence, and thus that he should be sentenced as a second offender for all purposes, not just for purposes of a custodial term. In a written decision, Judge Jerejian rejected defendant's argument. He reasoned that
[b]ecause the defendant's last conviction was in 1996, more than 10 years have passed since defendant's DWI, and defendant should be treated as a third time offender pursuant to the step[-]down provision of N.J.S.A. 39:4-50(a)(3). Further, since defendant's first DWI conviction in 1995 was based on an uncounseled plea, that conviction should not
be used to enhance defendant's jail sentence to that of a third offender, in accordance with Laurick and Hrycak . Therefore, this [c]ourt finds that defendant should only be treated as a second offender as to the custodial portion of his sentence, and as a third offender for the remaining portions of the sentence.
State v. Laurick, 120 N.J. 1, 4 (holding although a prior uncounseled DWI conviction may not be used to increase a defendant's loss of liberty, there is no constitutional impediment to its use otherwise to establish repeat-offender status under DWI laws), cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990).
State v. Hrycak, 184 N.J. 351, 354 (2005) (reaffirming holding in Laurick).
Defendant appeals, resurrecting the same issue, which he styles as follows:
BECAUSE THE "STEP[-]DOWN" PROVISION IS INTENDED TO DISREGARD STALE CONVICTIONS BEYOND THE CUTOFF PERIOD, AND BECAUSE A LICENSE SUSPENSION IS A PENALTY, A LICENSE SUSPENSION SHOULD BE TREATED EQUALLY TO POSSIBLE INCARCERATION UNDER THE "STEP[-]DOWN" LAW.We reject that argument.
We rejected defendant's premise, that the step-down provision is intended to disregard "stale convictions," in State v. Gelok, 237 N.J. Super. 503, 505-06 (App. Div. 1989); see also State v. Burroughs, 349 N.J. Super. 225, 227-28 (App. Div.), certif. denied, 174 N.J. 43 (2002). --------
In our view, defendant is mixing apples and oranges, making what should be a clear application of law unnecessarily confusing. Prior to the offense at issue, defendant had three DWI convictions received on January 13, 1995, May 17, 1995 and January 17, 1996. Because more than ten years had elapsed between his third conviction and his present offense, defendant was entitled to be treated as a third offender under the step-down provision of N.J.S.A. 39:4-50. See Burroughs, supra, 349 N.J. Super. at 227. But because his first plea in January 1995 was uncounseled, that conviction could not be used to enhance the period of incarceration on a subsequent conviction. Laurick, supra, 120 N.J. at 16; see also Hrycak, supra, 184 N.J. at 362-63 (reaffirming Laurick). Hence, defendant was sentenced as a third offender pursuant to a step-down and a second offender under Laurick. See State v. Conroy, 397 N.J. Super. 324, 326-29 (App. Div.), certif. denied, 195 N.J. 420 (2008) (explaining the effect of an uncounseled plea on a sentence involving a step-down).
Defendant tries to mix these separate concepts, arguing that the municipal court and the Law Division "failed to apply the 'step-down' provision to the driver's license suspension after properly applying it to the 'custodial' portion of the judgment." Defendant is in error. He has four DWI convictions, one uncounseled, and one ten-year period between his third and fourth convictions. Applying only the step-down provision would have resulted in defendant being sentenced as a third offender for all purposes. Because that would have resulted in the State using a prior uncounseled DWI conviction to enhance defendant's loss of liberty on a subsequent conviction contrary to the Court's holding in Laurick, both courts sentenced defendant as a second offender for purposes of the custodial portion of his sentence, as Judge Jerejian cogently explained.
This is precisely the result mandated by Conroy. 397 N.J. Super. at 333-34 (holding defendant convicted of fourth DWI, with ten-year gap between third and fourth convictions and an uncounseled plea to first conviction, should be sentenced as a third offender for all purposes except incarceration for which he must be sentenced as a second offender). As the Supreme court recently reaffirmed in State v. Revie, 220 N.J. 126, 139-40 (2014), an uncounseled conviction "constitutes a prior conviction for purposes of determining the administrative penalties as prescribed by N.J.S.A. 39:4-50(a) - the revocation of defendant's driver's license, the imposition of fines, and the installation of an interlock device pursuant to N.J.S.A. 39:4-50.17." Thus defendant's sentence as a third offender for purpose of his ten-year license suspension but as only a second offender for purpose of his forty-eight-hour jail term was completely in accordance with N.J.S.A. 39:4-50(a)(3) and Laurick and Hrycak.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION