STATE OF NEW JERSEY VS. SAMUEL VIANA (16-12-1524, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0163-17T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SAMUEL VIANA,
Defendant-Respondent.
____________________________________
Argued April 11, 2018 – Decided August 31, 2018
Before Judges Fuentes, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
16-12-1524.
Stephanie Davis Elson, Assistant Prosecutor,
argued the cause for appellant (Esther Suarez,
Hudson County Prosecutor, attorney; Stephanie
Davis Elson, on the brief).
Rochelle Watson, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender, attorney;
Rochelle Watson, of counsel and on the brief).
Liza Weisberg argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (American Civil Liberties Union of New
Jersey, attorneys; Alexander Shalom, Alexi
Machek Valez, Liza Weisberg, Edward Barocas
and Jeanne LoCicero, on the brief).
Carol M. Henderson, Assistant Attorney
General, argued the cause for amicus curiae
the Office of the Attorney General (Gurbir S.
Grewal, Attorney General, attorney; Carol M.
Henderson, of counsel and on the brief).
PER CURIAM
While driving a car, defendant Samuel Viana was involved in
an accident that resulted in the death of one person and serious
injury of another. Defendant did not have a driver's license at
the time of the accident. However, the Assistant Prosecutor who
first presented this case to the Grand Jury believed defendant was
driving with a suspended driver's license at the time of the
accident. Thus, the Hudson County Prosecutor's Office (HCPO)
indicted defendant on one count of being involved in a motor
vehicle accident that resulted in the death of another person
while his license was suspended, a third degree offense under
N.J.S.A. 2C:40-22(a).
The Criminal Part granted defendant's motion to dismiss the
indictment based on the State's failure to present evidence to the
Grand Jury that addressed all the elements of the offense. The
HCPO presented the case again to a different Grand Jury and
obtained a second indictment. This time, however, the trial court
ruled that under the facts of this case, defendant cannot be
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indicted under N.J.S.A. 2C:40-22 as a matter of law and dismissed
the indictment with prejudice.
In support of her decision, the trial judge relied on State
v. Perry, 439 N.J. Super. 514 (App. Div. 2015), a case involving
N.J.S.A. 2C:40-26, a statute that criminalizes those who drive
while their driver's licenses are suspended for a second or more
conviction for driving while intoxicated (DWI) under N.J.S.A.
39:4-50. The legal question before this court in Perry was whether
a defendant can be convicted under N.J.S.A. 2C:40-26 if "the act
of driving occurs beyond the determinate sentenced term of
suspension" imposed by the court for violating N.J.S.A. 39:4-50
or N.J.S.A. 39:4-50.4(a), but "while the driver continues on
administrative suspension." Id. at 519. Writing for the panel,
our colleague Judge Alvarez concluded that N.J.S.A. 2C:40-26
"criminalizes the operation of a motor vehicle only while the
operator is serving the court-imposed term of suspension, and not
thereafter." Ibid.The trial judge found the essence of Judge Alvarez's reasoning
in Perry applied with equal force in this case. The judge
concluded that defendant could not be prosecuted under N.J.S.A.
2C:40-22 because at the time of the car accident, defendant's
driver's license had been suspended by the Motor Vehicle Commission
(MVC) as a sanction, as opposed to a suspension ordered by a judge
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as part of a sentence. The judge also found support for her ruling
in the legislative history of N.J.S.A. 2C:40-22. The judge
concluded that the Legislature did not intend the statute to apply
to those whose driver's licenses are suspended based only on their
failure to pay a monetary penalty or fine.
In this appeal, the State argues the trial court misapplied
our holding in Perry to conclude defendant cannot be prosecuted
under N.J.S.A. 2C:40-22. The State contends the legislative
history of N.J.S.A. 2C:40-22 does not support the trial judge's
analysis and ultimate conclusion. The State argues the Legislature
intended to punish all those who defy their unlicensed status and
are involved in a car accident that results in the death or injury
of others. The State notes that the Legislature amended the Bill
to eliminate any distinction between those who drive without ever
having been issued a license, and those who have had their license
suspended or revoked.
Defendant urges us to affirm the trial judge's ruling. He
contends that the State's interpretation of N.J.S.A. 2C:40-22 does
not properly consider the language in the second part of the
statute that implies the driver must be serving a determinate term
of license suspension at the time the accident occurred. Defendant
claims his license suspension was indefinite because it was imposed
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as a means of encouraging him to pay an outstanding fine, unrelated
to a motor vehicle violation under Title 39.
According to defendant, if we adopt the State's
interpretation of N.J.S.A. 2C:40-22, it would create inconsistency
in the lengths of suspensions and disadvantage those who cannot
afford to pay their fines. Finally, defendant argues that N.J.S.A.
2C:40-22 is unconstitutionally vague as applied to these facts
because it does not give fair warning to those whose driver's
licenses are administratively suspended.
On February 27, 2018, this court issued a sua sponte pre-oral
argument order that directed the parties
to submit supplemental briefs addressing: (1)
whether the North Arlington Municipal Court
had the statutory authority to suspend
defendant's driver's license for failure to
comply with a time payment order imposed for
an offense unrelated to the Parking Offenses
Adjudication Act, N.J.S.A. 39:4-139.2 to
-139.14. See N.J.S.A. 39:3-40(i); and (2) the
State must submit a supplemental appendix that
includes the notice of driver's license
suspension sent to defendant by the Motor
Vehicle Commission in accordance with N.J.S.A.
39:4—139.10 or any other relevant authority.
We also invited the State Attorney General and the Office of
the Public Defender (OPD) to participate in this appeal as Amici
Curie and submit additional briefing addressing the issues
identified herein. The Attorney General accepted our invitation.
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With our consent, the American Civil Liberties Union (ACLU) agreed
to substitute for the OPD.
As a threshold matter, we conclude the trial court erred in
dismissing the indictment against defendant with prejudice. The
legal reasoning that drove our holding in Perry is not applicable
to a prosecution under N.J.S.A. 2C:40-22. The plain language of
the statute shows the Legislature expressly identified N.J.S.A.
39:3-40 to define the class of defendants subject to prosecution
under N.J.S.A. 2C:40-22. We also hold that N.J.S.A. 2C:40-22 is
not unconstitutionally vague and does not improperly discriminate
against defendants whose driving privileges are suspended because
they are unable to pay fines or other monetary penalties ordered
by a court as part of sentence, or imposed by the MVC as an
administrative sanction.
In the supplemental brief the HCPO submitted in response to
our sua sponte order, the State clarified that defendant was an
unlicensed driver at the time of the accident. Under these
circumstances, the State argues defendant had constructive notice
that he was not legally authorized to drive a motor vehicle. Thus,
the issues related to the class of defendants whose driver's
licenses are suspended as a sanction for a failure to appear in
court or to pay court-ordered fines through an installment plan
have been rendered moot and are therefore no longer relevant to
6 A-0163-17T1
this appeal1. However, because these issues involved questions of
public importance and are likely to reoccur, we have decided to
address them here nonetheless. See Joye v. Hunterdon Cent. Reg'l
High Sch. Bd. of Educ., 176 N.J. 568, 583 (2003).
I
We start our analysis guided by certain rudimentary
principles of statutory construction:
[T]he starting point of all statutory
interpretation must be the language used in
the enactment. We construe the words of a
statute in context with related provisions so
as to give sense to the legislation as a whole.
If the plain language leads to a clear and
unambiguous result, then our interpretative
process is over. We rely on extrinsic evidence
of legislative intent only when the statute
is ambiguous, the plain language leads to a
result inconsistent with any legitimate public
policy objective, or it is at odds with a
general statutory scheme.
[Spade v. Select Comfort Corp., 232 N.J. 504,
515 (2018) (internal citations omitted).]
N.J.S.A. 2C:40-22(a) provides:
Any person who, while operating a motor
vehicle in violation of [N.J.S.A.] 39:3-40 or
while the person's driver's license is
suspended or revoked in any other State,
. . . or without ever having been issued a
1
In an order dated April 13, 2018, we denied defendant's motion
to strike the section of the State's supplemental brief that
alleged defendant was an unlicensed driver at the time of the
accident. On remand, the State must present sufficient evidence
of these alleged facts before a Grand Jury.
7 A-0163-17T1
driver's license by this or any other State
. . . is involved in a motor vehicle accident
resulting in the death of another person,
shall be guilty of a crime of the third degree,
in addition to any other penalties applicable
under [N.J.S.A.] 39:3-40 or any other
provision of law. Upon conviction, the
person's driver's license or reciprocity
privilege shall be suspended for an additional
period of one year, in addition to any
suspension applicable under [N.J.S.A.] 39:3-
40 and shall be consecutive to any existing
suspension or revocation. If the person did
not have a driver's license at the time the
accident occurred, the person shall be
disqualified from obtaining a driver's license
in this State for a period of one year. The
additional period of suspension, revocation or
disqualification shall commence upon the
completion of any term of imprisonment.
[N.J.S.A. 2C:40-22(a) (emphasis added).]
N.J.S.A. 2C:40-22(b) contains identical language, except it
criminalizes as a fourth degree offense accidents that result in
serious bodily injury, as defined in N.J.S.A 2C:11-1.
The prosecution of an offense under N.J.S.A. 2C:40-22
involves the interplay of three statutory schemes. An indictment
that charges a defendant with the third degree offense under
N.J.S.A. 2C:40-22(a) requires the State to present evidence from
which a Grand Jury can find probable cause that defendant: (1)
operated a motor vehicle in violation of N.J.S.A. 39:3-40, or
without ever having been issued a driver's license by this or any
other State; and (2) was involved in a motor vehicle accident
8 A-0163-17T1
resulting in the death of another person. In cases in which a
defendant was operating a motor vehicle with a suspended driver's
license, the State must produce evidence that the driver's license
was suspended under one of the subsections in N.J.S.A. 39:3-40,
which in part states:
No person to whom a driver's license has been
refused or whose driver's license or
reciprocity privilege has been suspended or
revoked, or who has been prohibited from
obtaining a driver's license, shall personally
operate a motor vehicle during the period of
refusal, suspension, revocation, or
prohibition.
[N.J.S.A. 39:3-40.]
For purposes of this appeal, we will focus on N.J.S.A. 39:3-
40(i), which provides:
If the violator's driver's license to operate
a motor vehicle has been suspended pursuant
to [N.J.S.A. 39:4-139.10] or for failure to
comply with a time payment order, the violator
shall be subject to a maximum fine of $100
upon proof that the violator has paid all
fines and other assessments related to the
parking violation that were the subject of the
Order of Suspension, or if the violator makes
sufficient payments to become current with
respect to payment obligations under the time
payment order . . . .
[(Emphasis added).]
Under N.J.S.A. 39:4-139.10, a person's driver's license may be
suspended for failure to respond to a notice to appear in municipal
9 A-0163-17T1
court, or for failure to pay outstanding parking judgments or
penalties.
The final leg of this three-legged statutory stool is N.J.S.A.
2B:12-31(a)(2), which authorizes the municipal court to order the
suspension of a person's driving privileges, if that person has
failed "to pay a fine or costs, make restitution, perform community
service, serve a term of probation, or do any other act as a
condition of that sentence . . . ." N.J.S.A. 2B:12-31(b) requires
that "[p]rior to any action being taken pursuant to the provisions
of this section, the defendant shall be given notice of the
proposed action and afforded an opportunity to appear before the
court to contest the validity of the proposed action."
For purposes of clarity, it is worth restating the differences
between N.J.S.A. 2C:40-26 and N.J.S.A. 2C:40-22. N.J.S.A. 2C:40-
26 criminalizes driving a motor vehicle while one's driver's
license was suspended for a second or more conviction for DWI
under N.J.S.A. 39:4-50. The interplay in N.J.S.A. 2C:40-26 is a
narrow one. The only uncertainty our decision in Perry clarified
concerned the nature of the suspension. Defendants who have
completed their court-ordered suspension may not be prosecuted
under N.J.S.A. 2C:40-26, even if they drive before the MVC
reinstated their driving privileges. Perry, 439 N.J. Super. at
519.
10 A-0163-17T1
The class of individuals who may be prosecuted under N.J.S.A.
2C:40-22 is far more expansive than under N.J.S.A. 2C:40-26.
Because we discern no ambiguity in the plain language of the
statute, our interpretative process is over. Select Comfort Corp.,
232 N.J. at 515.
The trial court erred in dismissing the indictment against
defendant with prejudice. Because the State discovered
defendant's status as an unlicensed person while this appeal was
pending, we remand this matter for the State to re-present this
case before a new Grand Jury. We conclude our decision on this
cautionary note. N.J.S.A. 2C:40-22 transforms what otherwise
would be a civil tort into a criminal offense, based only on
defendant's status as an unlicensed driver. Because judges have
the power to suspend a defendant's driver's license based on the
failure to pay monetary penalties on an installment plan, the
prosecution of this offense must be carried out with scrupulous
adherence to constitutional safeguards, lest we make poverty a
crime.
Reversed and remanded. We do not retain jurisdiction.
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