NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2376-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN W. SESSA,
Defendant-Appellant. ________________________
Submitted March 7, 2019 – Decided April 5, 2019
Before Judges Simonelli and Firko.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 17-09- 0615.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey H. Sutherland, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Brian W. Sessa appeals from his first conviction for driving
while intoxicated (DWI), N.J.S.A. 39:4-50(a)(1). On appeal, defendant raises
the following contention:
DEFENDANT’S SUBSEQUENT DWI [PROSECUTION] WAS BARRED BY DOUBLE JEOPARDY AND FUNDAMENTAL FAIRNESS AFTER HE PLEADED GUILTY TO ASSAULT BY AUTO ARISING FROM THE SAME INCIDENT. (NOT RAISED BELOW).
We reject this contention and affirm.
On July 21, 2017, after ingesting heroin and prescribed drugs, defendant
drove a motor vehicle and struck another vehicle, injuring the driver. The police
found heroin in the purse of defendant's passenger and arrested defendant and
charged him with DWI and several other motor vehicle offenses. The Cape May
County Prosecutor charged defendant in Accusation No. 17-09-0615 with
fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2).
The DWI and other motor vehicle charges were joined with the assault by
auto charge for trial in the Superior Court. Defendant decided to proceed by
way of Accusation and agreed to enter an unconditional guilty plea to the assault
by auto and DWI charges. In exchange, the State agreed to recommend a
fourteen-month term of imprisonment and to dismiss all other related disorderly
A-2376-17T4 2 persons and motor vehicle charges, except the DWI charge. The State also
agreed not to pursue any drug-related charges even though the police found
heroin in defendant's vehicle.
At the plea hearing on the assault by auto charge, defense counsel placed
the plea agreement on the record and confirmed that defendant would plead
guilty to DWI at sentencing. Defendant testified that he signed the plea forms
and initialed each page, reviewed each question with defense counsel,
understood each question, answered each question truthfully, and was satisfied
with the plea agreement. Question thirteen confirmed that defendant would
plead guilty to DWI at sentencing. In addition, defendant testified under oath
that he would plead guilty to DWI at sentencing. Defendant gave a factual basis
that satisfied the elements of N.J.S.A. 2C:12-1(c)(2) ̶ that he drove a motor
vehicle after ingesting heroin, in violation of N.J.S.A. 39:4-50, and caused
bodily injury to the victim by driving the vehicle recklessly.
At sentencing, defendant pled guilty to DWI and testified that he operated
a motor vehicle while under the influence of an intoxicating substance and had
no defense. The court sentenced him as a first offender to a mandatory minimum
seven-month license suspension and imposed the applicable fees and penalties.
A-2376-17T4 3 The court then sentenced defendant on the assault by auto charge to a fourteen -
month term of imprisonment in accordance with the plea agreement.
Defendant argues for the first time on appeal that because his convictions
for DWI and assault by auto arose from the same incident, his DWI conviction,
which occurred after he pled guilty to assault by auto, violated the Double
Jeopardy Clause and the principles of fundamental fairness.
Generally, we decline to consider issues not raised before the trial court,
even constitutional issues, unless they are jurisdictional in nature or
substantially implicate the public interest. State v. Galicia, 210 N.J. 364, 383
(2012); Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2
(2019). Neither exception is satisfied here. In addition, "[g]enerally, a
defendant who pleads guilty is prohibited from raising, on appeal, the contention
that the State violated his constitutional rights prior to the plea." State v.
Crawley, 149 N.J. 310, 316 (1997). Further, "the failure to enter a conditional
plea under [Rule 3:9-3(f)] bars appellate review of issues other than search and
seizure and denials of entry into a pretrial intervention program." Pressler &
Verniero, Current N.J. Court Rules, cmt. 7 on R. 3:9-3(f) (2019). Nevertheless,
we address defendant's argument for the sake of completeness.
A-2376-17T4 4 To determine what constitutes the "same offense" for purposes of double
jeopardy, we apply the "same elements" test articulated by the United States
Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932). State v.
Miles, 229 N.J. 83, 86, 96 (2017). The Double Jeopardy Clause protects against:
"(1) 'a second prosecution for the same offense after acquittal,' (2) 'a second
prosecution for the same offense after conviction,' and (3) 'multiple punishments
for the same offense.'" Id. at 92 (quoting North Carolina v. Pearce, 395 U.S.
711, 717 (1969)). "Common to all three protections is the concept of 'same
offense.' Accordingly, a prime concern when reviewing a double-jeopardy
claim is 'whether the second prosecution is for the same offense involved in the
first.'" Id. at 92-93 (quoting State v. Yoskowitz, 116 N.J. 679, 689 (1989)).
"[W]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which
the other does not." Id. at 93 (quoting Blockburger, 284 U.S. at 304). "In other
words, if each statute at issue requires proof of an element that the other does
not, they do not constitute the same offense and a second prosecution may
proceed." Ibid. (quoting Blockburger, 284 U.S. at 304).
A-2376-17T4 5 Here, the two charges were joined for trial in the Superior Court and both
charges were disposed of in a single plea agreement that addressed both the
indictable assault by auto offense and the DWI offense. Thus, there was no
second prosecution for double jeopardy purposes. See State v. Williams, 172
N.J. 361, 368 (2002) ("If the offenses are not joined, the omitted offense may
not be further prosecuted"); see also Pressler & Verniero, Current N.J. Court
Rules, cmt. 2 on R. 3:15-1 (2019).
Even if there was a second prosecution for the DWI offense, it was proper.
A person commits fourth degree assault by auto if he: (1) operated a motor
vehicle; (2) operated a motor vehicle while under the influence of intoxicating
liquor, narcotic, hallucinogenic or habit-producing drug, in violation of N.J.S.A.
39:4-50; and (3) caused bodily injury to the victim by operating the motor
vehicle recklessly.
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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-2376-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN W. SESSA,
Defendant-Appellant. ________________________
Submitted March 7, 2019 – Decided April 5, 2019
Before Judges Simonelli and Firko.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 17-09- 0615.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey H. Sutherland, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Brian W. Sessa appeals from his first conviction for driving
while intoxicated (DWI), N.J.S.A. 39:4-50(a)(1). On appeal, defendant raises
the following contention:
DEFENDANT’S SUBSEQUENT DWI [PROSECUTION] WAS BARRED BY DOUBLE JEOPARDY AND FUNDAMENTAL FAIRNESS AFTER HE PLEADED GUILTY TO ASSAULT BY AUTO ARISING FROM THE SAME INCIDENT. (NOT RAISED BELOW).
We reject this contention and affirm.
On July 21, 2017, after ingesting heroin and prescribed drugs, defendant
drove a motor vehicle and struck another vehicle, injuring the driver. The police
found heroin in the purse of defendant's passenger and arrested defendant and
charged him with DWI and several other motor vehicle offenses. The Cape May
County Prosecutor charged defendant in Accusation No. 17-09-0615 with
fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2).
The DWI and other motor vehicle charges were joined with the assault by
auto charge for trial in the Superior Court. Defendant decided to proceed by
way of Accusation and agreed to enter an unconditional guilty plea to the assault
by auto and DWI charges. In exchange, the State agreed to recommend a
fourteen-month term of imprisonment and to dismiss all other related disorderly
A-2376-17T4 2 persons and motor vehicle charges, except the DWI charge. The State also
agreed not to pursue any drug-related charges even though the police found
heroin in defendant's vehicle.
At the plea hearing on the assault by auto charge, defense counsel placed
the plea agreement on the record and confirmed that defendant would plead
guilty to DWI at sentencing. Defendant testified that he signed the plea forms
and initialed each page, reviewed each question with defense counsel,
understood each question, answered each question truthfully, and was satisfied
with the plea agreement. Question thirteen confirmed that defendant would
plead guilty to DWI at sentencing. In addition, defendant testified under oath
that he would plead guilty to DWI at sentencing. Defendant gave a factual basis
that satisfied the elements of N.J.S.A. 2C:12-1(c)(2) ̶ that he drove a motor
vehicle after ingesting heroin, in violation of N.J.S.A. 39:4-50, and caused
bodily injury to the victim by driving the vehicle recklessly.
At sentencing, defendant pled guilty to DWI and testified that he operated
a motor vehicle while under the influence of an intoxicating substance and had
no defense. The court sentenced him as a first offender to a mandatory minimum
seven-month license suspension and imposed the applicable fees and penalties.
A-2376-17T4 3 The court then sentenced defendant on the assault by auto charge to a fourteen -
month term of imprisonment in accordance with the plea agreement.
Defendant argues for the first time on appeal that because his convictions
for DWI and assault by auto arose from the same incident, his DWI conviction,
which occurred after he pled guilty to assault by auto, violated the Double
Jeopardy Clause and the principles of fundamental fairness.
Generally, we decline to consider issues not raised before the trial court,
even constitutional issues, unless they are jurisdictional in nature or
substantially implicate the public interest. State v. Galicia, 210 N.J. 364, 383
(2012); Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2
(2019). Neither exception is satisfied here. In addition, "[g]enerally, a
defendant who pleads guilty is prohibited from raising, on appeal, the contention
that the State violated his constitutional rights prior to the plea." State v.
Crawley, 149 N.J. 310, 316 (1997). Further, "the failure to enter a conditional
plea under [Rule 3:9-3(f)] bars appellate review of issues other than search and
seizure and denials of entry into a pretrial intervention program." Pressler &
Verniero, Current N.J. Court Rules, cmt. 7 on R. 3:9-3(f) (2019). Nevertheless,
we address defendant's argument for the sake of completeness.
A-2376-17T4 4 To determine what constitutes the "same offense" for purposes of double
jeopardy, we apply the "same elements" test articulated by the United States
Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932). State v.
Miles, 229 N.J. 83, 86, 96 (2017). The Double Jeopardy Clause protects against:
"(1) 'a second prosecution for the same offense after acquittal,' (2) 'a second
prosecution for the same offense after conviction,' and (3) 'multiple punishments
for the same offense.'" Id. at 92 (quoting North Carolina v. Pearce, 395 U.S.
711, 717 (1969)). "Common to all three protections is the concept of 'same
offense.' Accordingly, a prime concern when reviewing a double-jeopardy
claim is 'whether the second prosecution is for the same offense involved in the
first.'" Id. at 92-93 (quoting State v. Yoskowitz, 116 N.J. 679, 689 (1989)).
"[W]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which
the other does not." Id. at 93 (quoting Blockburger, 284 U.S. at 304). "In other
words, if each statute at issue requires proof of an element that the other does
not, they do not constitute the same offense and a second prosecution may
proceed." Ibid. (quoting Blockburger, 284 U.S. at 304).
A-2376-17T4 5 Here, the two charges were joined for trial in the Superior Court and both
charges were disposed of in a single plea agreement that addressed both the
indictable assault by auto offense and the DWI offense. Thus, there was no
second prosecution for double jeopardy purposes. See State v. Williams, 172
N.J. 361, 368 (2002) ("If the offenses are not joined, the omitted offense may
not be further prosecuted"); see also Pressler & Verniero, Current N.J. Court
Rules, cmt. 2 on R. 3:15-1 (2019).
Even if there was a second prosecution for the DWI offense, it was proper.
A person commits fourth degree assault by auto if he: (1) operated a motor
vehicle; (2) operated a motor vehicle while under the influence of intoxicating
liquor, narcotic, hallucinogenic or habit-producing drug, in violation of N.J.S.A.
39:4-50; and (3) caused bodily injury to the victim by operating the motor
vehicle recklessly. N.J.S.A. 2C:12-1(c)(2); see also Model Jury Charges
(Criminal), "Assault By Auto or Vessel (Bodily Injury, With Drunk Driving Or
Refusal) (N.J.S.A. 2C:12-1c)" (2004). A person violates N.J.S.A. 39:4-50(a)(1)
if he operated a motor vehicle while under the influence of intoxicating liquor,
narcotic, hallucinogenic or habit-producing drug.
Fourth-degree assault by auto requires specific proof of bodily injury to
the victim and reckless operation of a motor vehicle and DWI does not.
A-2376-17T4 6 Applying the Blockburger "same elements" test, the result is clear. These
offenses were different offenses, and the subsequent DWI prosecution did not
violate the Double Jeopardy Clause.
Nor did the subsequent DWI prosecution violate the doctrine of
fundamental fairness. The doctrine of fundamental fairness in the context of
double-jeopardy and mandatory-joinder cases is derived from the policy
interests underlying those doctrines. Yoskowitz, 116 N.J. at 706. "The primary
considerations should be fairness and fulfillment of reasonable expectations in
the light of the constitutional and common law goals." Ibid. (quoting State v.
Currie, 41 N.J. 531, 539 (1964)).
"The doctrine of fundamental fairness 'is an integral part of due process,
and is often extrapolated from or implied in other constitutional guarantees.'"
State v. Miller, 216 N.J. 40, 71 (2013) (quoting Oberhand v. Dir., Div. of
Taxation, 193 N.J. 558, 578 (2008)). "The doctrine effectuates imperatives that
government minimize arbitrary action, and is often employed when narrowed
constitutional standards fall short of protecting individual defendants against
unjustified harassment, anxiety, or expense." Ibid. (quoting Doe v. Poritz, 142
N.J. 1, 109 (1995)). "'Fundamental fairness is a doctrine to be sparingly applied.'
The doctrine is 'applied in those rare cases where not to do so will subject the
A-2376-17T4 7 defendant to oppression, harassment, or egregious deprivation.'" Id. 171-72
(citations omitted) (quoting Doe, 142 N.J. at 108).
This is not the "rare" case where the doctrine of fundamental fairness
mandates reversal of the defendant's DWI conviction. Defendant was not
oppressed, harassed, or deprived of his reasonable expectations. The record
does not support his disingenuous claim that he reasonably expected his guilty
plea to DWI was related to the assault by auto crime and he would not be subject
to a separate prosecution and punishment for the DWI offense. Rather, the
record confirms that defendant's reasonable expectation was to plead guilty to
DWI at sentencing and for the court to impose the sentence in the negotiated
plea. The DWI conviction mandated the imposition of the DWI minimum
statutory penalties because they survived merger of the two offenses for
sentence. See State v. Baumann, 340 N.J. Super. 553, 557 (App. Div. 2001).
Accordingly, defendant's DWI conviction did not violate the principles of
fundamental fairness.
Affirmed.
A-2376-17T4 8