State v. Kashi

848 A.2d 744, 180 N.J. 45, 2004 N.J. LEXIS 552

• Court: Supreme Court of New Jersey
• Decided: May 26, 2004
• Status: Published

Opinion

PER CURLAM.

We granted defendant Sadegh Kashi’s petition for certification, 178 N.J. 30, 834 A2d 404 (2003), to consider whether in a de novo appeal, a trial court may use a police officer’s observations to sustain a driving while intoxicated conviction even though the municipal court found the officer’s observations insufficient and convicted defendant only on the basis of Breathalyzer test results. The Appellate Division answered the question in the affirmative and we agree. The judgment of the Appellate Division is therefore affirmed substantially for the reasons expressed in the opinion of Judge Wefing. State v. Kashi, 360 N.J.Super. 538, 823 A.2d 883 (2003). We add the following.

In State v. Hessen, 145 N.J. 441, 454-59, 678 A2d 1082 (1996), we addressed whether the ban against plea bargaining for the offense of driving while under the influence of liquor or drugs, N.J.S.A. 39:4-50(a), applied to a charge of “permitting” an intoxicated person to drive one’s vehicle. In finding that the ban applied, we stated that N.J.S.A. 39:4-50(a) includes four specific offenses:

Operating a motor vehicle while under the influence of intoxicating liquor or drugs;

Operating a motor vehicle with a blood alcohol concentration of 0.10% or more;

Permitting another person who is under the influence of intoxicating liquor or drugs to operate a motor vehicle which one owns or has in one’s custody or control;

Permitting another person with a blood alcohol concentration of 0.10% or more to operate a motor vehicle which one owns or has in one’s custody or control.

[Hessen, supra, 145 N.J. at 455, 678 A2d 1082.]

We no longer subscribe to the position that N.J.S.A. 39:4-50(a) describes four specific offenses. Rather, we agree with the Appellate Division that N.J.S.A. 39:4-50(a) creates one offense that may be proved by alternative evidential methods. Kashi supra, 360 N.J.Super. at 545, 823 A2d 883. Our view is fortified by the sentencing provisions in N.J.S.A. 39:4-50(a), providing penalties for the “first offense,” “second violation,” and “third or subsequent violation.” N.J.S.A. 39:4-50(a)(l)-(a)(3). The terms “first offense,” “second violation,” and “subsequent or third violation,” refer to the single offense of driving while intoxicated set forth in N.J.S.A. 39:4-50(a). Consequently, we hold that N.J.S.A. 39:4-50(a) is a unified offense under which a defendant can be found guilty on alternate bases.

Defendant sought a de novo review in the Law Division, which “provides a reviewing court with the opportunity to consider the matter anew, afresh [and] for a second time.” In re Phillips, 117 N.J. 567, 578, 569 A2d 807 (1990) (alteration in the original) (internal quotations omitted). The court conducting a de novo review must give due, but “not necessarily controlling, regard to the opportunity of the [municipal court] to judge the credibility of the witnesses.” State v. Johnson, 42 N.J. 146, 157, 199 A2d 809 (1964). Here, the Law Division on the de novo review differed with the findings of the municipal court based on the record, but did not challenge the municipal court’s credibility findings.

In reviewing the de novo proceeding, the Appellate Division concluded that the Law Division fairly found that the evidence in the record established beyond a reasonable doubt that defendant was intoxicated when driving. Kashi supra, 360 N.J.Super. at 545-46, 823 A.2d 883. We agree with that conclusion. Further, because the de novo review did not subject defendant to a conviction after an acquittal, or to the possibility of conviction of a more serious offense, or of an offense carrying a higher penalty, we find no double jeopardy or due process viola tion. See State v. Widmaier, 157 N.J. 475, 489-90, 724 A2d 241 (1999).

Lastly, we take this opportunity to reaffirm our prior policy decision that a defendant convicted and sentenced in a municipal court may not be subjected to a greater sentence on appeal. State v. De Bonis, 58 N.J. 182, 188-89, 276 A.2d 137 (1971).

The judgment of the Appellate Division is affirmed.

For affirmance — Chief Justice PORITZ and Justices LONG, VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE — 7.

Opposed — None.