NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0832-13T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, March 29, 2016
v. APPELLATE DIVISION
LOUISE FRANK,
Defendant-Appellant. _____________________________________
Argued March 3, 2015 – Decided March 29, 2016
Before Judges Messano, Ostrer and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-04-00627.
Philip Nettl argued the cause for appellant (Benedict and Altman, attorneys; Mr. Nettl, on the brief).
Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).
The opinion of the court was delivered by
SUMNERS, JR., J.A.D.
A jury found defendant Louise Frank guilty of fourth-degree
leaving the scene of a motor vehicle accident involving serious bodily injury, N.J.S.A. 2C:12-1.1.1 The judge, thereafter, found
defendant guilty of leaving the scene of a motor vehicle accident
resulting in injury, N.J.S.A. 39:4-129(a). At sentencing, the
trial court ordered that the motor vehicle violation merged into
the crime, but that the penalties survived merger.2 Defendant was
sentenced to a four-year term of probation on the N.J.S.A. 2C:12-
1.1 offense, but the court determined that a custodial sentence
of 180 days was mandated by N.J.S.A. 39:4-129(a).
Defendant appealed, arguing:
POINT I
THE CUSTODIAL PORTION OF DEFENDANT'S SENTENCE SHOULD BE VACATED, BECAUSE THE TRIAL COURT MISINTERPRETED N.J.S.A. 39:4-129(a) BY FINDING THAT INCARCERATION WAS MANDATORY.
POINT II
DEFENDANT'S CONVICTION FOR N.J.S.A. 39:4- 129(a) SHOULD MERGE INTO HER CONVICTION FOR N.J.S.A. 2C:12-1.1.
1 The indictment incorrectly stated N.J.S.A. 2C:12-1.1 is a fourth- degree crime, although the Legislature upgraded it to a third- degree crime effective May 4, 2007. L. 2007, c. 83, § 2. The State never sought to amend the indictment, and the matter was tried and sentenced as a fourth-degree offense. Thus, this decision will reflect that defendant was found guilty of a fourth-degree crime. 2 However, the court did not record on the motor vehicle summons that the motor vehicle violation merged with the criminal offense. 2 A-0832-13T1 We have reviewed the contentions advanced on appeal, and in
light of the record and applicable law, we reverse and remand for
resentencing. The trial court correctly determined that the motor
vehicle violation, N.J.S.A. 39:4-129(a), merged into the offense
under the New Jersey Code of Criminal Justice (Code), N.J.S.A.
2C:12-1.1. While mandatory penalties imposed by the motor vehicle
provision survive merger, the trial court erred in concluding that
N.J.S.A. 39:4-129(a) mandates a custodial sentence.
I.
Considering that the primary challenge before us involves
interpreting a motor vehicle statute's sentencing requirements, a
lengthy discussion of the record is unnecessary. Suffice it to
say that on March 30, 2009, defendant was driving her vehicle in
her neighborhood when she got into an altercation with two women
who were walking their dogs. Defendant was accused of driving her
vehicle into one of the women, injuring her, and leaving without
waiting for the police. Consequently, defendant was charged that
same day with the following motor vehicle offenses: reckless
driving, N.J.S.A. 39:4-96; failure to report an accident, N.J.S.A.
39:4-130; and leaving the scene of an accident, N.J.S.A. 39:4-
129(a).
Defendant was later indicted for second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count one); fourth-degree assault
3 A-0832-13T1 by auto, N.J.S.A. 2C:12-1(c)(1) (count two); and fourth-degree
leaving the scene of an accident involving serious bodily injury,
N.J.S.A. 2C:12-1.1 (count three).3 At trial, a jury found
defendant guilty of count three, but was unable to reach a verdict
on counts one and two. After retrial resulted in another hung
jury and mistrial, defendant's motion to bar a third trial was
granted and the unresolved counts were dismissed with prejudice.
On September 24, 2013, the trial court, relying upon the
earlier testimony provided at the jury trial and supplemented with
oral argument by counsel, issued a decision on the motor vehicle
summonses. Defendant was acquitted of reckless driving, but was
found guilty of leaving the scene of an accident and failure to
report an accident.
The court then sentenced defendant on all offenses arising
from the incident, stating that the criminal offense and motor
vehicle violation were merged with the penalties surviving merger.
After considering the aggravating and mitigating factors, the
court placed defendant on probation for four years, with certain
conditions, for the N.J.S.A. 2C:12-1.1 offense. However, the
court found that there was a mandatory prison term of 180 days for
the N.J.S.A. 39:4-129(a) violation because a victim suffered a
bodily injury, and sentenced defendant accordingly. Despite
3 An initial indictment was dismissed without prejudice. 4 A-0832-13T1 maintaining that the statute was ambiguous regarding the
imposition of a prison term, the court determined that the
statute's reference to 180 days prison term was a "shall provision"
if there was a "finding of a bodily injury." The court also
suspended defendant's driving privileges for a year. However,
when recording the sentence and penalties on the motor vehicle
summons, the court did not note that the violation merged with the
criminal offense. The judgment of conviction (JOC) also failed
to indicate the merger.
Defendant's request to stay the custodial portion of the
sentence was granted so that defendant may perfect appeal and make
an application for bail.4 This appeal followed.
II.
Before us, defendant contends that the trial court erred by
finding that incarceration is required when a defendant is
convicted under N.J.S.A. 39:4-129(a) for leaving the scene of a
motor vehicle incident involving bodily injury to another. We
agree.
The statute provides:
The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible . . . . Any person
4 The trial court subsequently granted defendant's application for bail pending appeal. 5 A-0832-13T1 who shall violate this subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned for a period of 180 days, or both. The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section.
In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State.
[Ibid.]
Specifically, defendant maintains that the statute's plain
language grants the court discretion to impose a custodial sentence
only in cases where there is an injury of another person.
Defendant also argues that there is nothing in the statute's
legislative history indicating the Legislature's intention to
impose a mandatory term of incarceration.
The last sentence of the subsection's first paragraph was
added by a 1994 amendment which increased penalties. Defendant
cites the Sponsor's Statement, stating: "The bill provides that
the term of imprisonment shall be imposed only if a person other
than the driver was killed or injured." L. 1994, c. 183. Defendant
maintains that the Statement "never says that term of imprisonment
was becoming mandatory in any situation." Further, defendant
6 A-0832-13T1 contends that if there is some ambiguity over whether the statute
requires a mandatory jail term if someone else is injured, under
the rule of lenity, the statute is construed strictly and
interpreted in favor of a criminal defendant, and would not result
in an interpretation calling for imprisonment. State v.
Livingston, 172 N.J. 209, 218 (2002).
The State, also relying upon the plain language of N.J.S.A.
39:4-129(a), argues that the court properly interpreted the
statute, and mandatorily sentenced defendant to 180 days in prison
because her accident injured someone. The State relies upon the
same Sponsor's Statement cited by defendant to support its position
that imprisonment is only mandatory where the accident resulted
in death or injury to a person other than the driver.
Our scope of review of the findings made by a judge after a
bench trial is limited. State v. Locurto, 157 N.J. 463, 470-71
(1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)).
However, where issues on appeal turn on interpretation of the law,
there is no deference to the determinations of the trial court,
and our review is de novo. State v. Gandhi 201 N.J. 161, 176
(2010); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995) (We owe no deference to the trial court's
"interpretation of the law and the legal consequences that flow
from established facts.").
7 A-0832-13T1 The principles governing statutory interpretation are well-
established. Our goal is to determine and effectuate the
Legislature's intent. State v. Olivero, 221 N.J. 632, 639 (2015).
We begin with examining the plain language of the statute. State
v. Munafo, 222 N.J. 480, 488 (2015) (citing State v. Frye, 217
N.J. 566, 575 (2014)); Gandhi, supra, 201 N.J. at 161. "It is a
basic rule of statutory construction to ascribe to plain language
its ordinary meaning." Bridgewater-Raritan Educ. Ass'n v. Bd. of
Educ., 221 N.J. 349, 361 (2015) (citing D'Annunzio v. Prudential
Ins. Co. of Am., 192 N.J. 110, 119-20 (2007)); see also Wilson ex
rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012)
(stating that a provision "should not be read in isolation, but
in relation to other constituent parts so that a sensible meaning
may be given to the whole of the legislative scheme"). If the
language is clear, our task is complete; if it is not, we may turn
to extrinsic evidence. In re Kollman, 210 N.J. 557, 568 (2012)
(citations omitted). The legislative history is examined where
the statute's plain language is unclear or can be given "more than
one possible meaning[.]" Marino v. Marino, 200 N.J. 315, 329
(2009).
A penal statute must be strictly construed. Olivero, supra,
221 N.J. at 639. The doctrine of lenity, which gives words their
ordinary meaning and affords any reasonable doubt in favor of the
8 A-0832-13T1 defendant, is "applied only if a statute is ambiguous, and that
ambiguity is not resolved by a review of 'all sources of
legislative intent.'" Id. at 640. Furthermore, the rule of lenity
is not invoked simply because competing interpretations are
proffered about a statute's meaning. State v. Regis, 208 N.J.
439, 451 (2011).
In pertinent part, N.J.S.A. 39:4-129(a) provides, "Any person
who shall violate this subsection shall be fined not less than
$2,500 nor more than $5,000, or be imprisoned for a period of 180
days, or both." (Emphasis added). The possible penalties are
each separated by a comma and the word "or." Thus, the key to
interpreting whether imprisonment is mandatory under the statute
involves the Legislature's use of punctuation and inclusion of the
word "or" in the statute.
We recently addressed the rules of construction on
punctuation and the word "or," in In re Estate of Fisher, 443 N.J.
Super. 180, 190-96 (App. Div. 2015). We concluded that
"'[p]unctuation is part of an act and may be considered in its
interpretation.'" Id. at 192 (quoting Commerce Bancorp, Inc. v.
InterArch, Inc., 417 N.J. Super. 329, 336 (App. Div. 2010), cert.
denied, 205 N.J. 519 (2011)). "'The word "or" in a statute is to
be considered a disjunctive particle indicating an alternative.'"
Ibid. (quoting State v. Kress, 105 N.J. Super. 514, 520 (Law Div.
9 A-0832-13T1 1969)). Hence, where "'items in a list are joined by a comma
. . . , with an "or" preceding the last item, the items are
disjunctive,' [meaning] distinct and separate from each other."
Ibid. (quoting State v. Smith, 262 N.J. Super. 487, 506 (App. Div.
1993)).
Applying these rules of statutory construction and the
statute's plain language, we conclude that a person who leaves the
scene of a motor vehicle accident resulting in injury in violation
of N.J.S.A. 39:4-129(a) can be penalized in three distinct and
separate ways. First, there can be a fine "of not less than $2,500
nor more than $5,000[.]" Second, there can be imprisonment "for
a period of 180 days[.]" Third, there can be "both" a fine and
prison term. However, there is no mandatory requirement that a
person serve a 180 day prison term for the offense. The statutory
language that a prison term "shall be imposed only if the accident
resulted in death or injury to a person other than the driver
convicted" does not alter our interpretation. (Emphasis added).
"Only if" denotes a necessary condition for imposing a prison
term, but not a sufficient one.5 The clause merely qualifies the
circumstances upon which a prison term may be imposed.
5 By contrast, "if and only if" denotes both a necessary and sufficient condition. 10 A-0832-13T1 In concluding that the plain meaning of the statute's punitive
measures are clear, we need not consider the parties' arguments
concerning the statute's legislative history and doctrine of
lenity. See Regis, supra, 208 N.J. at 451-52 (declining to apply
rule of lenity to interpretation of N.J.S.A. 39:4-88(b) because
the plain language was clear).
III.
We next turn to the merger of N.J.S.A. 39:4-129(a) into
N.J.S.A. 2C:12-1.1. There is no dispute that, at sentencing, the
judge stated the violation would merge into the offense, (although
he failed to note the merger on the motor vehicle complaint-summons
and JOC).
Merger is a concept which implicates "a defendant's
substantive constitutional rights," and invokes "the principle
that 'an accused [who] has committed only one offense . . . cannot
be punished as if for two." State v. Miller, 108 N.J. 112, 116
(1987) (citations omitted). It seeks to avoid multiple punishment
for the same conduct. Ibid. Merger can be statutorily prescribed
for criminal code offenses. N.J.S.A. 2C:1-8(a)(1) provides, in
part, that "[w]hen the same conduct of a defendant may establish
the commission of more than one offense, the defendant may be
prosecuted for each such offense" but not "convicted of more than
one offense" unless "[o]ne offense is included in the other."
11 A-0832-13T1 However, here, defendant was convicted of a criminal offense
and a motor vehicle violation. Title 39 violations "fall within
the generic category of petty offenses that do not fit within the
Code's definition of a lesser-included criminal offense." State
v. Stanton, 176 N.J. 75, 98 (2003), cert. denied, 540 U.S. 903,
124 S. Ct. 259, 157 L. Ed. 2d 187 (2003). Thus, N.J.S.A. 2C:1-8
does not apply to motor vehicle violations, only criminal offenses.
Id. at 99.
Nevertheless, a motor vehicle violation is "consolidated for
trial with indicted offenses, not because they are lesser-included
criminal offenses of the crimes charged in an indictment, but
because our jurisprudence and Rule 3:15-3(a)(1)[6] require
consolidation of even Title 39 offenses to avoid double jeopardy
problems." Id. at 100-01 (citations omitted). Thus, we conclude
that where there is consolidation, it is appropriate to merge the
conviction of an offense and motor vehicle violation where their
elements and the evidence presented to establish these elements
correspond. See e.g. State v. Mara, 253 N.J. Super. 204, 214
6 Rule 3:15-3(a)(1) provides, in pertinent part, "the court shall join any pending non-indictable complaint for trial with a criminal offense based on the same conduct or arising from the same episode."
12 A-0832-13T1 (App. Div. 1992) (no merger of the criminal offense of aggravated
assault and driving while intoxicated (DWI) violation because
intoxication was not an element of the assault).
Here, merger was appropriate because by definition the
criminal offense incorporates the motor vehicle violation. A
motor vehicle operator is guilty of N.J.S.A. 2C:12-1.1 when he
"knows he is involved in an accident and knowingly leaves the
scene of that accident under circumstances that violate the
provisions of [N.J.S.A.] 39:4-129 . . . if the accident results
in serious bodily injury to another person.
Turning to the impact of the penalties for the merged offense
and violation, the State contends that State v. Baumann, 340 N.J.
Super. 553 (App. Div. 2001), requires the penalties survive merger.
Defendant does not argue otherwise.
In Baumann, we concluded that the defendant's conviction for
DWI, N.J.S.A. 39:4-50, merged into his conviction for third-degree
aggravated assault, N.J.S.A. 2C:12-1b(7), and that the DWI
penalties, including a six-month license suspension, survived
merger. Baumann, supra, 340 N.J. Super. at 554-57. We reasoned
that "criminal jurisprudence of this State permits the survival
of mandatory penalties attendant upon a lesser charge when merged
with a more serious offense that does not carry those penalties."
Id. at 557. We also recognized that the DWI penalties "represent
13 A-0832-13T1 not only punishment for the offender but also protection for the
driving public." Ibid. In reaching this decision we noted:
The Supreme Court has so held when a third- degree controlled dangerous substance school- zone offense under N.J.S.A. 2C:35-7, requiring a mandatory parole ineligibility period, is merged into a first- or second-degree drug offense that does not impose a mandatory parole ineligibility term. And this court has so held in respect of merger of a lesser- degree offense under N.J.S.A. 2C:35-7.1 (drug offense committed within 500 feet of designated public facilities) into a higher- degree drug offense.
Mandatory penalties attached to a merged violation survive merger,
even if the elements of the merged violation are completely
encompassed in the surviving violation. See State v. Reiner, 180
N.J. 307, 319-30 (2004) (holding that DWI violation under N.J.S.A.
39:4-50(a) merges into DWI-school zone violation under N.J.S.A.
39:4-50(g), but enhanced penalties for the former, in case of a
second offender, survive merger).
Thus, notwithstanding merger, the court was required to
impose the sentences mandated by N.J.S.A. 39:4-129(a), to the
extent they exceed those required by N.J.S.A. 2C:12-1.1. Here,
the criminal offense and motor vehicle violation penalties differ
in two respects. First, as we discussed above, the court must
impose, as a minimum, a fine of at least $2500 (but no more than
$5000) or a jail term of 180 days for the motor vehicle violation. 14 A-0832-13T1 N.J.S.A. 39:4-129(a). By contrast, for the fourth-degree Code
offense, the court may, but is not required to, impose a fine of
up to $10,000, see N.J.S.A. 2C:43-2(b)(3). The court may, but is
not required to impose a custodial term. N.J.S.A. 2C:43-2(b)(6).
Second, N.J.S.A. 39:4-129(a) mandates a one-year license
suspension for a first-time offender and a permanent loss of
license for a subsequent offense. By contrast, for the Code
offense, a court may, but is not mandated to, impose a license
suspension of up to two years if a motor vehicle is used in the
course of the offense. N.J.S.A. 2C:43-2(c). We conclude that the
Legislature intended that these penalties, mandated by N.J.S.A.
39:4-129(a), would survive merger.
The court correctly imposed the one-year license suspension.
However, the court must comply with the mandate to impose either
a fine of at least $2500 (but no more than $5000), or a sentence
of 180 days.
In sum, we reverse the trial court's imposition of a 180-day
imprisonment term for defendant's violation of N.J.S.A. 39:4-
129(a), because the court imposed the term based on the
misimpression that it had no alternative to imposing that term.
We remand for resentencing. Upon merger of the motor vehicle
violation into the Code offense, the court shall impose a sentence
that includes the mandatory aspects of the sentence for the
15 A-0832-13T1 violation. The court shall properly document the merger on the
summons and the judgment of conviction.
Reversed and remanded. We not retain jurisdiction.
16 A-0832-13T1