STATE OF NEW JERSEY VS. EDWARD M. PLAZA (16-09-0623, UNION 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NOT FOR PUBLICATION WITHOUT THE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-2042-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD M. PLAZA, a/k/a
EDWARD M. PLAZE, EDDY
ARENAS and ED ARENAS,
Defendant-Appellant.
Argued January 4, 2021 – Decided February 19, 2021
Before Judges Currier, Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 16-09-0623.
Laura B. Lasota, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Laura B. Lasota, of counsel
and on the brief).
Lauren Bonfiglio, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Lauren Bonfiglio, of counsel and on
the brief).
PER CURIAM
Defendant was charged with second-degree reckless vehicular homicide
under N.J.S.A. 2C:11-5(a) after he crashed his car into a fire hydrant, killing his
girlfriend in May 2016. Prior to the presentation of evidence at trial, defendant
requested the court to charge the jury with the newly enacted statute of third-
degree strict liability vehicular homicide, N.J.S.A. 2C:11-5.3, as a lesser-
included offense. The new statute, which became effective on July 21, 2017,
post-dated defendant's offense by more than a year.
The trial court declined to issue the charge, finding it would violate the
Ex Post Facto Clause. Defendant was convicted by a jury of the second-degree
reckless charge. The trial court also found him guilty of driving while
intoxicated (DWI), N.J.S.A. 39:4-50.1 The court sentenced defendant to eight
years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43 -
7.2, for the vehicular homicide conviction. For the DWI conviction, the court
suspended defendant's driver's license for one year, and imposed the required
fines, penalties, and surcharges.
1
The court found defendant had a blood alcohol content of 0.13 percent. The
blood sample also tested positive for benzodiazepines and THC, the marijuana
metabolite.
A-2042-18
2
Defendant appeals from his conviction of reckless vehicular homicide,
contending the trial court erred in not charging the jury with third-degree strict
liability vehicular homicide as a lesser-included offense. He also contends his
sentence is excessive. We affirm.
Defense counsel conceded it was a violation of the Ex Post Facto Clause
to charge the jury with the new third-degree statute. Nevertheless, when the
judge proposed defendant waive the clause, defendant said he would not. The
trial court held that absent defendant's waiver, the third-degree charge could not
be presented to the jury as a lesser-included offense because it would result in a
violation of the Ex Post Facto Clause.
Defendant presents the following points for our consideration:
POINT I: THE TRIAL COURT ERRED WHEN IT
DENIED DEFENDANT'S REQUEST TO CHARGE
THIRD-DEGREE STRICT LIABILITY VEHICULAR
HOMICIDE AS A LESSER-INCLUDED OFFENSE
TO SECOND-DEGREE RECKLESS VEHICULAR
HOMICIDE. BECAUSE CHARGING N.J.S.A. 2C:11-
5.3 AS A LESSER-INCLUDED OFFENSE WOULD
NOT HAVE RESULTED IN AN EX POST FACTO
CLAUSE VIOLATION, AND BECAUSE A
RATIONAL BASIS EXISTED IN THE RECORD FOR
THE CHARGE, FAILURE TO PROVIDE THE
CHARGE TO THE JURY REQUIRES REVERSAL
OF DEFENDANT'S CONVICTION.
A-2042-18
3
A. Policy considerations behind third-degree strict
liability vehicular homicide permitted the trial court to
charge the new statute as a lesser-included offense.
B. Charging third-degree strict liability vehicular
homicide as a lesser-included offense to second-degree
reckless vehicular homicide would not have violated
defendant's constitutional rights under the ex post facto
clauses.
C. Third-degree strict liability homicide is a lesser-
included offense to second-degree reckless vehicular
homicide, and a rational basis existed in the record to
support the lesser charge.
D. Defendant was prejudiced by the trial court's failure
to instruct the jury as to the lesser-included offense of
third-degree strict liability vehicular homicide.
POINT II: DEFENDANT'S SENTENCE IS
MANIFESTLY EXCESSIVE AND MUST BE
REDUCED.
Our review of defendant's Point I arguments is de novo as the issue before
us concerns a matter of law, not entitled to any deference. State v. Grate, 220
N.J. 317, 329 (2015).
The third-degree strict liability vehicular homicide charge was enacted
after defendant committed his second-degree offense. In determining whether a
statute will be applied retroactively, courts must apply a two-part test: (1)
whether the Legislature intended to give the statute retroactive application; and
if so (2) whether "retroactive application of that statute will result in either an
A-2042-18
4
unconstitutional interference with vested rights or a manifest injustice." State
v. J.V., 242 N.J. 432, 444 (2020) (citation omitted). "A law is retrospective if it
'appl[ies] to events occurring before its enactment' or 'if it changes the legal
consequences of acts completed before its effective date.'" Riley v. N.J. State
Parole Bd., 219 N.J. 270, 285 (2014) (alteration in original) (quoting Miller v.
Florida, 482 U.S. 423, 430 (1987)).
In deciphering legislative intent, we "look first to the statute's plain
language." In re T.B., 236 N.J. 262, 274 (2019) (quoting DiProspero v. Penn,
183 N.J. 477, 492 (2005)). We review "'the entire statute' and read all provisions
'together in light of the general intent of the act.'" Ibid. (quoting Perez v.
Zagami, LLC, 218 N.J. 202, 211 (2014)). We do "not '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.'" State v.
Rivastineo, 447 N.J. Super. 526, 529-30 (App. Div. 2016) (alteration in original)
(quoting Marino v. Marino, 200 N.J. 315, 329 (2009)). When the plain language
of the statute is clear and unambiguous, the interpretive process ends without
resort to outside resources. State v. Gandhi, 201 N.J. 161, 176-77 (2010).
Moreover, "new criminal statutes are presumed to have solely prospective
application." J.V., 242 N.J. at 443. The "savings statute," N.J.S.A. 1:1-15,
A-2042-18
5
codifies the "general prohibition against retroactive application of penal laws,"
and expressly prohibits the retroactive application of statutory enactments
unless the statute contains a declaration that it shall apply retroactively . State
v. Chambers, 377 N.J. Super. 365, 367, 373 (App. Div. 2005). Absent a
legislative declaration to the contrary, "we look to the date an offense was
committed in determining whether a new law, which discharges, releases or
affects an offense, should be applied to that offense." State in the Interest of
C.F., 444 N.J. Super. 179, 188 (App. Div. 2016) (emphasis in original).
Here, the plain language of N.J.S.A. 2C:11-5.3 is unambiguous. It became
effective July 21, 2017, more than a year after defendant's offense. The law
does not include an express provision that it should be applied retroactively to
offenses committed before the effective date. When the plain language of the
statute is clear and unambiguous, the interpretive process ends without resort to
outside resources. Gandhi, 201 N.J. at 176-77.
Defendant also argues that the policy initiative behind third-degree strict
liability vehicular homicide permitted the trial court to charge the new statute.
However, defendant does not present any extrinsic sources indicating a
legislative intent or policy consideration to warrant the statute's application to
crimes committed before the statute's effective date.
A-2042-18
6
In its legislative statement, the Legislature explained its intent behind the
new statute:
One of the policy objectives of N.J.S.A. 2C:11-5.3 was
to prevent situations where a defendant's act of criminal
homicide by drunk driving did not rise to the level of
second-degree reckless vehicular homicide, but where
no other offenses, other than less-serious motor
vehicles offenses under Title 39, would apply to the
conduct.
[S. Budget & Appropriations Comm. Statement to
A. 3686, 2 (June 15, 2017).]
However, unlike drunk drivers whose crimes did not rise to the level of an
indictable offense, here, defendant was indicted and convicted of second-degree
vehicular homicide. Therefore, the policy considerations behind third-degree
strict liability vehicular homicide did not mandate a retroactive application of
the new statute.
We turn next to defendant's argument regarding the Ex Post Facto Clause.
The United States and New Jersey Constitutions prohibit the Legislature from
enacting ex post facto laws. U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, §
7, ¶ 3; State v. Fortin, 198 N.J. 619, 626-27 (2009). New Jersey's ex post facto
jurisprudence follows the federal jurisprudence. State v. Perez, 220 N.J. 423,
439 (2015) (citing State v. Fortin, 178 N.J. 540, 608 n.8 (2004)). "The Ex Post
Facto Clause was intended to interdict the retroactive application of criminal
A-2042-18
7
laws that harm the accused." Fortin, 178 N.J. at 608. "The drafters of that clause
understood that it would be unjust to prosecute a person for a crime . . . that was
not on the books at the time of the commission of the act covered by the
subsequent legislation." Ibid.An ex post facto penal law is defined by "'two critical elements . . . : it
must be retrospective, that is, it must apply to events occurring before its
enactment, and it must disadvantage the offender affected by it.'" State v.
Natale, 184 N.J. 458, 491 (2005) (alteration in original) (quoting Weaver v.
Graham, 450 U.S. 24, 29 (1981)). In order for an ex post facto violation to
occur, the statute in question must either "(1) punish as a crime an act previously
committed, which was innocent when done; (2) make more burdensome the
punishment for a crime, after its commission; or (3) deprive a defendant of any
defense available according to the law at the time when the crime was
committed." State v. Muhammad, 145 N.J. 23, 56 (1996) (citing Beazell v.
Ohio, 269 U.S. 167, 169-70 (1925)).
Before this court, defendant argues there would be no ex post facto
violation because the third-degree offense, if applied as a lesser-included charge,
would have exposed him to a lesser punishment than the second-degree offense.
We are not persuaded.
A-2042-18
8
If the third-degree statute was applied to defendant, it would be a violation
of the Ex Post Facto Clause because the law would relate to events occurring
before its enactment and would disadvantage defendant. See Fortin, 198 N.J. at
627. The statute would both punish defendant's conduct with a separate crime
and make punishment for the crime harsher. See Muhammad, 145 N.J. at 56.
At the time of defendant's offense, the act of driving while intoxicated and
causing the death of another did not render defendant strictly liable for that
death. See N.J.S.A. 2:11-5(a). If defendant was acquitted of the second-degree
charge, the only other punishment defendant could be exposed to was a Title 39
municipal offense, carrying minimum county jail time. Under N.J.S.A. 2C:11-
5.3(b), the conduct is elevated from a municipal summons to a third-degree
indictable offense, with an ordinary sentencing range of three to five years in
state prison. N.J.S.A. 2C:43-6(a)(3).
In addition, the State carries a lesser burden of proof regarding the third-
degree strict liability offense, because there is no mens rea requirement.
N.J.S.A. 2C:11-5.3. The State need only prove that defendant was driving with
a blood alcohol content over the legal limit. Ibid. Under N.J.S.A. 2C:11-5(a),
the State must prove that defendant caused the death of a victim while driving a
vehicle recklessly.
A-2042-18
9
Lastly, the third-degree strict liability offense would have deprived
defendant of a defense available to him under the second-degree statute. See
Muhammad, 145 N.J. at 56. N.J.S.A. 11-5.3(d) explicitly provides, "[i]t shall
not be a defense to a prosecution under this section that the decedent contributed
to [her] own death by reckless or negligent conduct or operation of a motor
vehicle."
In his opening statement at trial, defense counsel asserted that defendant
did not cause his girlfriend's death, telling the jury it had to find defendant not
guilty if it found defendant's actions did not cause the accident. When defendant
testified, he stated that his girlfriend grabbed the steering wheel and yanked it
to the side, causing the car to "jump[] the curb" and the airbags to deploy,
striking the victim in the head. Under N.J.S.A. 2C:11-5.3, defendant could not
have raised this defense – that the victim contributed to her own death. Since
the amended statute violated the protections of the Ex Post Facto Clause, without
a waiver, it could not be applied to defendant. Therefore, the trial court did not
err in declining to charge the jury with N.J.S.A. 2C:11-5.3.2
2
In light of our decision on this issue, we do not reach the issue of whether the
third-degree strict liability statute is a related or lesser-included offense to
second-degree reckless vehicular homicide.
A-2042-18
10
Defendant argues his sentence should be vacated and remanded for
resentencing because the court erred in finding aggravating factor three
applicable, N.J.S.A. 2C:44-1(a)(3), and failed to provide any reasoning for its
application of aggravating factor nine, N.J.S.A. 2C:44-1(a)(9). We disagree.
We "review sentencing determinations in accordance with a deferential
standard." State v. Fuentes, 217 N.J. 57, 70 (2014). Ordinarily we will not
second-guess a judge's calibration of a sentence unless the judge failed to follow
the sentencing guidelines, the aggravating and mitigating factors were not
supported by the evidence, or application of the guidelines renders the sentence
clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984).
We are satisfied the trial judge's sentencing findings were supported by
the factual evidence. In considering aggravating factor three, the judge noted
defendant's extensive criminal history, including two indictable convictions: a
1997 burglary conviction and a 1999 possession of a controlled dangerous
substance (CDS) conviction, and numerous convictions for disorderly persons
offenses, including assaults, drug-related offenses, and various other offenses.
Finally, defendant had multiple incidents of speeding, careless driving, unsafe
operation, and at least six license suspensions, as well as a reckless driving
incident.
A-2042-18
11
Although defendant was given numerous opportunities for rehabilitation,
the judge found he continued to reoffend. He had previously violated probation
and was unsuccessfully terminated from a diversionary program. The judge also
observed that the convictions were remote in time. As a result, he applied
mitigating factor seven, N.J.S.A. 2C:44-1(b)(7). Nevertheless, the finding of
aggravating three was properly supported by the record.
We are also satisfied that the judge supported his finding of aggravating
factor nine, N.J.S.A. 2C:44-1(a)(9). During the sentencing hearing, the judge
found there is both an "overwhelming strong need" to specifically deter this
defendant and a strong need for general deterrence. The judge also noted the
tragic circumstances of these events.
Affirmed.
A-2042-18
12