STATE OF NEW JERSEY VS. KEIRA R. BARBERÂ (15-01-0007, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-1092-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEIRA R. BARBER,
Defendant-Appellant.
______________________________
Submitted September 6, 2017 – Decided September 21, 2017
Before Judges Rothstadt and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Indictment No. 15-01-0007.
Robin Kay Lord, attorney for appellant.
Christopher S. Porrino, Attorney General,
attorney for respondent (Carol M. Henderson,
Assistant Attorney General, of counsel and on
the brief).
PER CURIAM
Defendant Keira R. Barber appeals her conviction following a
guilty plea for fourth-degree operating a motor vehicle during a
period of a license suspension, N.J.S.A. 2C:40-26(b). She contends
the court erred by denying her motion to dismiss the indictment.
We disagree and affirm.
The evidence presented to the grand jury showed defendant
operated a motor vehicle and was stopped by the police, who issued
her motor vehicle summonses for talking on a cellphone while
operating a motor vehicle and driving while her license was
suspended. It was subsequently determined that defendant's
license was suspended as the result of a 2013 conviction for
refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.2(a).
It was also discovered defendant had a 2010 conviction for driving
while intoxicated, N.J.S.A. 39:4-50.
Defendant was indicted for fourth-degree operating a motor
vehicle during a period of a license suspension "for a second or
subsequent violation of" driving while intoxicated (DWI), N.J.S.A.
39:4-50, or refusal to submit to a chemical breath test (refusal),
N.J.S.A. 39:4-50.2(a). See N.J.S.A. 2C:40-26(b). She filed a
motion to dismiss the indictment claiming she did not violate
N.J.S.A. 2C:40-26(b) because it applied only where an individual
has two or more violations of either DWI or refusal, but not where
an individual has only one conviction for each. Defendant argued
the evidence did not establish that she violated N.J.S.A. 2C:40-
26(b) because she had only one conviction for DWI and one for
refusal.
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The court rejected defendant's interpretation of N.J.S.A.
2C:40-26(b). The court found the plain language of the statute
prohibited operation of a vehicle during a license suspension
imposed for a second or subsequent violation of either DWI or
refusal. The court determined defendant was properly charged in
the indictment with violating N.J.S.A. 2C:40-26(b) because the
evidence showed she had prior convictions for DWI and refusal, and
therefore was operating a motor vehicle during a suspension for a
second violation of DWI or refusal. The court entered an order
denying the motion to dismiss the indictment.
Defendant subsequently entered a conditional plea of guilty
to N.J.S.A. 2C:40-26(b).1 The court imposed the mandatory 180-day
custodial sentence under N.J.S.A. 2C:40-26(b), but stayed the
sentence pending appeal. This appeal followed.
Defendant presents a single argument on appeal:
POINT ONE
THIS COURT SHOULD REVERSE THE TRIAL COURT'S
DENIAL OF DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT BECAUSE DEFENDANT DOES NOT HAVE TWO
OR MORE PRIOR CONVICTIONS FOR DRIVING WHILE
INTOXICATED OR FOR REFUSING TO SUBMIT TO A
BREATH [TEST].
1
The plea was conditioned on defendant's reservation of a right
to challenge the court's denial of her motion to dismiss the
indictment. R. 3:9-3(f).
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Defendant argues the court erred by denying her request to
dismiss the indictment because the court misinterpreted the
requirements of N.J.S.A. 2C:40-26(b). Thus, the sole issue before
us is whether the court's interpretation of the statute is
erroneous. The interpretation of a statute presents a legal
question, State v. Revie, 220 N.J. 126, 132 (2014), that we review
"de novo, unconstrained by deference to the decisions of the trial
court," State v. Grate, 220 N.J. 317, 329 (2015).
Our primary purpose in construing a statute is to "discern
the meaning and intent of the Legislature." State v. Gandhi, 201
N.J. 161, 176 (2010). "There is no more persuasive evidence of
legislative intent than the words by which the Legislature
undertook to express its purpose; therefore, we first look to the
plain language of the statute." Perez v. Zagami, LLC, 218 N.J.
202, 209-10 (2016). "We ascribe to the statutory words their
ordinary meaning and significance, and read them in context with
related provisions so as to give sense to the legislation as a
whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citations
omitted). Where "the plain language leads to a clear and
unambiguous result, . . . our interpretive process is over."
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J.
189, 195 (2007) (citation omitted). When the statutory language
"clearly reveals the meaning of the statute, the court's sole
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function is to enforce the statute in accordance with those terms."
McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001) (quoting
SASCO 1997 NJ, LLC v. Zudkewich, 166 N.J. 579, 586 (2001)).
Alternatively, where "there is ambiguity in the statutory
language that leads to more than one plausible interpretation, we
may turn to extrinsic evidence, 'including legislative history,
committee reports, and contemporaneous construction.'"
DiProspero, supra, 183 N.J. at 492-93 (quoting Cherry Hill Manor
Assocs. v. Faugno, 182 N.J. 64, 75 (2004)). Extrinsic evidence
may also be considered "if a plain reading of the statute leads
to an absurd result or if the overall statutory scheme is at odds
with the plain language." Id. at 493.
We begin our interpretation of N.J.S.A. 2C:40-26(b), as we
must, with the plain language of the statute:
It shall be a crime of the fourth degree to
operate a motor vehicle during the period of
license suspension . . . if the actor's
license was suspended or revoked for a second
or subsequent violation of [DWI] or [refusal].
A person convicted of an offense under this
subsection shall be sentenced by the court to
a term of imprisonment.
By its express terms, N.J.S.A. 2C:40-26(b) prohibits the
operation of a motor vehicle during a period of license suspension
imposed "for a second or subsequent violation of [DWI] or
[refusal]." (emphasis added). The phrase "[DWI] or [refusal]"
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modifies the term "second or subsequent violation," and is plainly
in the disjunctive. Thus, under the plain language of the statute,
where a defendant has a second violation for either DWI or refusal,
and operates a vehicle during a license suspension resulting from
the violation, the defendant commits a violation of N.J.S.A. 2C:40-
26(b). There is nothing in the plain language of the statute
supporting a different interpretation or result.
Defendant's interpretation of the statute is founded on
language the Legislature did not to include in N.J.S.A. 2C:40-
26(b). Defendant imports into the statute the requirement that a
defendant operate a vehicle during a license suspension imposed
as the result of "a second or subsequent DWI conviction or a second
or subsequent conviction for refusal." However, this language is
not contained in the statute, and, as noted, the Legislature
instead chose to prohibit operation of a vehicle during a period
of suspension for a second or subsequent violation of either DWI
or refusal.
We reject defendant's interpretation of N.J.S.A. 2C:40-26(b)
because it is not our function "to 'rewrite a plainly-written
enactment of the Legislature [] or presume that the Legislature
intended something other than that expressed by way of the plain
language.'" DiProspero, supra, 183 N.J. at 492 (quoting O'Connell
v. State, 171 N.J. 484, 488 (2002)). We also will not "'write in
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an additional qualification which the Legislature pointedly
omitted in drafting its own enactment,' or 'engage in conjecture
or surmise which will circumvent the plain meaning of the act.'"
Ibid. (first quoting Craster v. Bd. of Comm'rs of Newark, 9 N.J.
225, 230 (1952); then quoting In re Closing of Jamesburg High
School, 83 N.J. 540, 548 (1980)).
Although the plain language of N.J.S.A. 2C:40-26(b) requires
rejection of defendant's contentions, our interpretation of the
statute is consistent with its legislative history. "When N.J.S.A.
2C:40-26 was enacted in 2009, L. 2009, c. 333, § 1, the Senate
intended to lodge 'criminal penalties for persons whose [drivers']
licenses are suspended for certain drunk driving offenses and who,
while under suspension for those offenses, unlawfully operate a
motor vehicle.'" State v. Luzhak, 445 N.J. Super. 241, 245-46
(App. Div. 2016) (quoting Senate Law and Public Safety and
Veterans' Affairs Comm., Statement to S. 2939 (November 23, 2009));
see also Senate Law and Public Safety and Veterans' Affairs Comm.,
Statement to S. 2939 (June 15, 2009) (as introduced) (stating the
statute made it a fourth-degree crime for "a person who is
convicted of a second or subsequent driving while intoxicated or
refusal offense" to operate a motor vehicle during a period of
license suspension "for that second offense").
In these pronouncements, there is no suggestion that a
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defendant charged with violating N.J.S.A. 2C:40-26(b) must have
been driving while suspended for either a second or subsequent DWI
offense or a second or subsequent refusal offense. To the
contrary, the committee stated that a person operating a vehicle
while suspended for a second or subsequent of "certain drunk
driving offenses" – DWI or refusal – is guilty of the fourth-
degree crime. The plain language of the statute is consistent
with these statements of legislative intent.
In sum, we are satisfied the court correctly denied
defendant's motion to dismiss the indictment. The evidence showed
that she operated a motor vehicle during a license suspension for
her refusal conviction, and that she also had a prior DWI
conviction. Therefore, the evidence was sufficient to support the
charge that she violated N.J.S.A. 2C:40-26(b) as alleged in the
indictment. See State v. Sasvedra, 222 N.J. 39, 57 (2015) (finding
an indictment will not be disturbed as long as the State presents
some evidence supporting each element of the crime charged).
Affirmed. The stay of sentence is vacated. We do not retain
jurisdiction.
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