ROBERT PICCONI VS. ATLANTIC HEALTH SYSTEM, INC., Â(L-1019-14, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-1495-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID C. LILLY,
Defendant-Appellant.
_______________________________
Argued February 13, 2017 – Decided February 28, 2017
Before Judges Haas and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 14-04-00359.
Peter J. Bonfiglio, III, argued the cause for
appellant (Hoffman Dimuzio, attorneys; Mr.
Bonfiglio, on the brief).
Carol M. Henderson, Assistant Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Ms. Henderson, on the brief).
PER CURIAM
On April 16, 2014, a Gloucester County grand jury returned a
one-count indictment charging defendant David Lilly with fourth-
degree operating a motor vehicle while his license was suspended
after multiple driving while intoxicated ("DWI") convictions.
N.J.S.A. 2C:40-26(b). On March 16, 2015, the trial judge denied
defendant's motion to dismiss the indictment.
On June 29, 2015, defendant entered a conditional guilty plea
to the indictment and reserved his right to appeal the trial
judge's denial of his motion to dismiss the indictment. On October
30, 2015, the judge sentenced defendant to three years of probation
conditioned upon a mandatory term of 180 days in jail without
parole. The judge also imposed appropriate fines and penalties,
and stayed the custodial portion of the sentence pending appeal.
On appeal, defendant presents the following argument:
DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
SHOULD HAVE BEEN GRANTED BECAUSE DEFENDANT
CANNOT BE FOUND GUILTY OF VIOLATING N.J.S.A.
2C:40-26(b) FOR DRIVING WITH A SUSPENDED
LICENSE WHERE THE UNDERLYING DWI OFFENSE WAS
TREATED AS A FIRST OFFENSE PURSUANT TO
N.J.S.A. 39:4-59(a)(3).
Having considered this argument in light of the record and
applicable law, we affirm.
On September 5, 2000, defendant was convicted of DWI under
N.J.S.A. 39:4-50. On July 11, 2013, defendant was again convicted
of DWI. This was defendant's second conviction for DWI, but he
was sentenced as a first offender under the step-down provision
of N.J.S.A. 39:4-50(a)(3) because there was more than a ten-year
2 A-1495-15T1
gap between his first and second DWI convictions. The trial court
suspended defendant's driver's license for seven months.
During this seven-month period of suspension, defendant drove
his car on December 22, 2013 and was stopped by a police officer.
Because defendant had two DWI convictions, he was charged under
N.J.S.A. 2C:40-26(b) for "operat[ing] a motor vehicle during the
period of license suspension . . . for a second or subsequent
violation of" N.J.S.A. 39:4-50.
In his motion to dismiss the indictment, defendant argued
that because he was sentenced on his second DWI conviction as if
it were his first DWI offense under the step-down provision of
N.J.S.A. 39:4-50(a)(3), he had not committed "a second or
subsequent" DWI and, therefore, should not have been charged under
N.J.S.A. 2C:40-26(b).
Following oral argument, the trial judge denied defendant's
motion. In his March 16, 2015 written opinion, the judge stated:
Here, [d]efendant operated a motor vehicle
while his license was suspended after his
second DWI. Although true that [d]efendant
was sentenced as though the 2013 DWI was his
first offense, the language of N.J.S.A. 39:4-
50(a)(3) states that the step-down is for
"sentencing purposes." Therefore, the July
2013 DWI was [d]efendant's second DWI for all
other purposes, including the applicability of
N.J.S.A. 2C:40-26(b).
3 A-1495-15T1
On appeal, defendant again argues that his qualification for
lenient sentencing under the step-down provision of N.J.S.A. 39:4-
50(a)(3) essentially dissolved his prior DWI conviction and
rendered him a first-time offender. As a result, defendant
maintains that he could not be charged under N.J.S.A. 2C:40-26(b)
because that statute applies only to second or subsequent DWI
offenders. However, defendant's argument is contrary to the
unambiguous language of N.J.S.A. 39:4-50(a)(3) and creates a false
connection between that statute and N.J.S.A. 2C:40-26(b).
N.J.S.A. 39:4-50(a)(3) provides:
A person who has been convicted of a previous
violation of this section need not be charged
as a second or subsequent offender in the
complaint made against him [or her] in order
to render him [or her] liable to the
punishment imposed by this section on a second
or subsequent offender, but if the second
offense occurs more than 10 years after the
first offense, the court shall treat the
second conviction as a first offense for
sentencing purposes and if a third offense
occurs more than 10 years after the second
offense, the court shall treat the third
conviction as a second offense for sentencing
purposes.
[(emphasis added).]
As noted above, a person is chargeable under N.J.S.A. 2C:40-26(b)
with fourth-degree operating a motor vehicle during a period of
license suspension "if the actor's license was suspended or revoked
for a second or subsequent violation of" N.J.S.A. 39:4-50.
4 A-1495-15T1
"It is well settled that the goal of statutory interpretation
is to ascertain and effectuate the Legislature's intent." In re
Fisher, 443 N.J. Super. 180, 190 (App. Div. 2015) (quoting State
v. Olivero, 221 N.J. 632, 639 (2015)), certif. denied, 224 N.J.
528 (2016). "Our analysis of a statute begins with its plain
language, giving the words their ordinary meaning and
significance." Ibid. (citing Olivero, supra, 221 N.J. at 639).
"When the language 'clearly reveals the meaning of the statute,
the court's sole function is to enforce the statute in accordance
with those terms.'" Ibid. (quoting Olivero, supra, 221 N.J. at
639).
N.J.S.A. 39:4-50(a)(3) unambiguously states that the leniency
in sentencing afforded a second-time DWI offender under the step-
down provision is "for sentencing purposes" only, and that the
second offense is considered just that, a "second offense" and a
"second conviction." Ibid. Common sense dictates that the step-
down provision does not serve to rewrite history and reduce the
total number of DWIs committed by the defendant or his or her
total number of convictions to one. We also find it obvious that
as used in N.J.S.A. 39:4-50(a)(3), the phrase "for sentencing
purposes" means sentencing for violations of that provision of the
DWI statute only. See State v. Revie, 220 N.J. 126, 139 (2014)
(citing State v. Conroy, 397 N.J. Super. 324, 330 (App Div.),
5 A-1495-15T1
certif. denied, 195 N.J. 420 (2008)) (observing that the step-down
provision of N.J.S.A. 39:4-50(a)(3) applies to the imposition of
a custodial sentence under the DWI statute).
N.J.S.A. 2C:40-26(b) punishes the crime of driving on a
suspended license and prescribes a mandatory 180-day jail term for
second-time DWI offenders. Despite the fact that a second DWI
offense is a prerequisite to the mandatory 180-day incarceration
period, it is important to note that "[d]efendant is not being
punished under N.J.S.A. 2C:40-26(b) for his prior DWI . . .
offenses; he is being punished for driving without a license."
State v. Carrigan, 428 N.J. Super. 609, 624 (App. Div. 2012),
certif. denied, 213 N.J. 539 (2013) (finding that N.J.S.A. 2C:40-
26(b) applies to recidivist DWI offenders driving during a period
of license suspension irrespective of whether the DWI offenses
occurred before the effective date of N.J.S.A. 2C:40-26(b)).
Defendant was convicted of DWI once in September 2000 and for
a second time in July 2013. Even though he was sentenced in 2013
as a first-time offender, the 2013 DWI conviction clearly and
unambiguously constituted his second DWI offense and his second
DWI conviction. During the period of license suspension following
defendant's second DWI, he drove, giving rise to criminal charges
under the statute that prohibits driving during a period of license
suspension. Thus, defendant was properly charged under N.J.S.A.
6 A-1495-15T1
2C:46-20(b) and the trial judge correctly denied defendant's
motion to dismiss the indictment.
Affirmed. The stay of sentence previously granted by the
trial court shall dissolve within twenty days of this opinion.
7 A-1495-15T1