STATE OF NEW JERSEY VS. ALLAN AFANADOR(04-16, GLOUCESTER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 14, 2017
• Docket: A-5620-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5620-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALLAN AFANADOR,

Defendant-Appellant.

_______________________________

Argued October 3, 2017 – Decided November 14, 2017

Before Judges Fisher and Moynihan.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 04-16.

Michel L. Testa, Jr. argued the cause for appellant (Testa Heck Testa & White, PA attorneys; Anthony M. Imbesi, on the brief).

Joseph H. Enos, Jr., Senior Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Monica Bullock, on the brief).

PER CURIAM Defendant pleaded guilty to refusing to submit to a chemical

test, N.J.S.A. 39:4-50.4a (the refusal statute).1 He had prior

convictions in 2004 for refusal to submit to a chemical test, and

in 2008 for driving while intoxicated (DWI), N.J.S.A. 39:4-50 (the

DWI statute). Despite defendant's argument that he should be

sentenced as a second offender for violating the refusal statute,

the municipal court judge, on the basis of those two prior

convictions, sentenced defendant as a third offender.2 Defendant

appealed and proffered the same sentencing argument to the Law

Division judge who held defendant's prior DWI conviction was

properly considered, in accordance with State v. Frye, 217 N.J.

566 (2014), in sentencing defendant as a third-time offender.

On appeal, defendant reiterates his argument that he should

have been sentenced as a second offender, relying on State v.

Ciancaglini, 204 N.J. 597 (2011). The State counters that

defendant's sentence as a third offender complied with the Frye

decision. We agree that defendant's sentence as a third offender

is supported by precedent and affirm.

1 Charges for other motor vehicle violations, including driving while intoxicated, N.J.S.A. 39:4-50, were dismissed. 2 The judge imposed a ten-year suspension of defendant's driving privileges and other penalties consistent with a third-time offender. N.J.S.A. 39:4-50.4a.

2 A-5620-15T1 Our review is de novo because we are considering the legality

of the sentence imposed and "[a] trial court's interpretation of

the law and the legal consequences that flow from established

facts are not entitled to any special deference." Manalapan

Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Supreme Court interpreted an early version of the refusal

statute and held a prior DWI conviction enhanced a sentence for a

subsequent refusal conviction. In re Bergwall, 85 N.J. 382 (1981),

rev'g on dissent, 173 N.J. Super. 431 (App. Div. 1980). Over

thirty years later, the Court recognized Bergwall, despite many

amendments to the refusal statute, "remains binding precedent."

Frye, supra, 217 N.J. at 580. The Court observed the amendments

did not make "any significant changes" to the refusal statute,

concluding that the Legislature acquiesced to the Bergwall Court's

interpretation. Ibid.

In Ciancaglini, supra, 204 N.J. at 599-600, the Court held a

defendant's prior refusal conviction could not enhance a

subsequent DWI sentence. The Court discerned the DWI and refusal

statutes had discrete, albeit related, purposes and elements. Id.

at 606-08. Recognizing the Legislature did not amend either

statute to provide otherwise, the Court concluded references to

prior violations in the DWI statute were to DWI convictions, not

to refusal convictions. Id. at 610-11.

3 A-5620-15T1 The Court again acknowledged those statutory differences in

Frye when it held that Bergwall, not Ciancaglini, controlled the

outcome of a case where the defendant's two prior convictions for

DWI enhanced his sentence on a subsequent refusal conviction.

Frye, supra, 217 N.J. at 581-82.

We see no grounds to depart from the Court's statutory

interpretation in Bergwall and Frye. Although the Frye Court

upheld Bergwall, in part, because enhancement of subsequent

refusal convictions prevented defendants with a prior DWI

conviction from gaining a tactical advantage by refusing to be

tested, that consideration was only "further support[]" for the

Court's decision, id. at 582; the statutory interpretation was the

cornerstone of the Court's holding, see id. at 577-80.

The legislative fiat recognized in Bergwall and Frye

surmounts defendant's argument that the enhancement of his

sentence disregards the progressive system of discipline designed

by the Legislature. The Legislature's language compels

enhancement of defendant's refusal conviction.

We comprehend defendant's argument that it is inequitable to

treat his current conviction as a third offense, whereas, if he

was convicted of DWI, he would have faced sentencing as a second

offender. The power to remedy any inequity, however, rests with

the Legislature.

4 A-5620-15T1 Affirmed.

5 A-5620-15T1