NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE COMMITTEE ON OPINIONS
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. 14-04
BMA: 003-08-14
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHONG KIM,
Defendant-Appellant.
Decided July 16, 2014 before the Honorable Edward A. Jerejian, J.S.C.
On appeal from Ridgefield Municipal Court, Docket No. 14-04.
Thomas W. Park, Esq., Kimm Law Firm, attorney for appellant.
John L. Molinelli, Esq., Bergen County Prosecutor, attorney for respondent
(Elizabeth R. Rebein, Esq., Assistant Prosecutor, of counsel and on the letter
brief)
This is an appeal of a conviction in Ridgefield Municipal Court. On May 23 2013, the
Ridgefield Police Department conducted a traffic stop and arrested defendant, Chong Kim, for
driving while intoxicated (DWI). (T8-9 to 12). That night, officers obtained an Alcotest reading
of .20 from defendant. (T9-5 to 11).
The Ridgefield Police issued defendant Complaint-Summonses E13-003738 for driving
while intoxicated, contrary to N.J.S.A. 39:4-50; E13-003739 for failure to observe a traffic
control device, contrary to N.J.S.A. 39:4-81; E13-003742 for driving without a license or
registration, contrary to N.J.S.A. 39:3-10; E13-003743 for failure to possess a driver’s license or
registration, contrary to N.J.S.A. 39: 3-29; E13-003744 for driving while suspended, contrary to
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N.J.S.A. 39:3-40; E13-003745 for unclear plates; E13-003746 for careless driving, contrary to
N.J.S.A. 39:4-97. (Pa1 to 9).1
On December 11, 2013, the defendant pleaded guilty to DWI, in violation of N.J.S.A.
39:4-50, reserving his right to appeal the sentence imposed . (T6-16 to 21). All remaining
charges were dismissed. (T11-21 to 12-17; Pa2 to 9).
At sentencing, the Honorable David Lafferty, J.M.C., found that defendant had three
prior convictions for DWI on the following dates: January 13, 1995; May 17, 1995; and January
17, 1996. (T4-3 to 10; T10-4 to 19). Judge Lafferty further found that defendant was not
represented by counsel when he pleaded guilty to the first DWI on January 13, 1995. (T4-11 to
15; T8-17 to 21; T10-7 to 19).
Because defendant was not represented by counsel when he pleaded guilty to DWI in
January 1995, Judge Lafferty sentenced the defendant as a third offender for all the penalties
except for the custodial portion of the sentence, which the court imposed as if the defendant were
a second offender in accordance with State v. Laurick, 120 N.J. 1 (1990). (T11-9 to 12).
On the DWI conviction, Judge Lafferty sentenced defendant to a $1,006 fine, $33 in
court costs, a $75 Safe Neighborhoods Services Fund (SNSF) assessment, a $50 Victims of
Crime Compensation Board (VCCB) assessment, a $100 Drunk Driving Enforcement Fund
(DDEF) assessment, a $100 DWI surcharge, a 10 year driver’s license suspension, installation of
an ignition interlock device for 10 years, and ordered defendant to serve 48 hours in jail. (T11-9
to 20; Pa1).
A timely notice of appeal was subsequently filed on January 2, 2014, with the Superior
Court, Bergen County. This Court heard oral arguments on June 13, 2014.
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“Pa” refers to the State’s Appendix.
2
Defendant alleges that the “step down” provision of the DWI statute should be applied to
non-custodial aspects of a sentence, such as a license suspension, following a conviction where
the “step down” provision applies. (Db3).
The State submits that the step down provision of N.J.S.A. 39:4-50 only entitles
defendant to be treated as a second offender for enhanced penalty purposes, which is limited to
incarceration. (Sb4 to 5).
STANDARD OF REVIEW
The Appellate Division has specified that the standard of review to be used by the
Superior Court Law Division when hearing a municipal appeal is de novo. R. 3:23-8a. The
function of the court is to determine the case completely anew on the record made in the
Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of
the magistrate to judge the credibility of the witnesses. See State v. Johnson, 42 N.J. 146, 157
(1964). A trial de novo requires the trier to make findings of fact. The Law Division’s role is not
the appellate function governed by the substantial evidence rule, but rather an independent factfinding function in respect of Defendant’s guilt or innocence. See State v. States, 44 N.J. 285,
293 (1965); see also R. 3:23-8a. Appellate courts should defer to the credibility findings of the
trial court because they are often influenced by matters such as observations of the character and
demeanor of witnesses and common human experience that are not transmitted by the record.
See State v. Locurto, 157 N.J. 463, 475 (1999).
LEGAL ARGUMENT
POINT I
The Step-Down Provision of N.J.S.A. 39:4-50 Only Entitles Defendant to be Treated as a
Second Offender for Enhanced Penalty Purpose, Which Includes Incarceration But
Excludes Driver’s License Suspension
N.J.S.A. 39:4-50 provides for “step down” of penalties for repeat DWI offenders when
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subsequent offenses occur more than 10 years after the previous offense. The statute in pertinent
part reads as follows:
… if the second offense occurs more than 10 years after the first offense, the court shall
treat the second 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. N.J.S.A. 29:4-50(3).
In this case, defense argues that the lower court erred in applying the step down provision
of N.J.S.A. 39:4-50 to only the custodial aspect of his sentence. (Db2). The defendant asks this
Court to apply the step down provision to defendant’s entire sentence, including his license
revocation. The State submits that the court correctly sentenced defendant as a third time
offender in accordance with the step down provision of the DWI statute, but properly declined to
impose an enhanced sentence on the custodial portion for the uncounseled plea, in accordance
with Laurick.
The facts considered in State v. Conroy, 397 N.J. Super. 324 (App. Div.), certif. denied,
195 N.J. 420, (2008), are analogous to the facts before this Court. In Conroy, the Appellate
Division decided a case in which the defendant had three prior convictions for DWI, having been
convicted on October 12, 1982; April 17, 1990; and August 1, 1995. Id. at 330. Defendant’s first
conviction, in 1982, was an uncounseled plea. Id. Also, more than ten years had passed before
defendant was arrested again for DWI on November 27, 2005. Id. at 326.
In Conroy, the court addressed the issue of whether a defendant, who had three prior
convictions for DWI, is entitled to the benefit of the ten-year ‘step-down’ provision of N.J.S.A.
39:4-50(a)(3) on a fourth conviction, where the first conviction was entered by way of an
uncounseled plea.” The court held that the defendant was entitled to the benefit of the step down
provision, and should stand before the court as a third offender, not a fourth offender, “for the
limited purpose of the trial court imposing a jail sentence under the enhanced sentencing
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provision of the DWI statute.” Id. at 330. The court further held that the 10-year gap since his
last offense entitled defendant to the step-down provision of N.J.S.A. 39:4-50(a)(3). Therefore,
the court sentenced defendant on what had become his third conviction, instead as a second
conviction for purposes of incarceration only under State v. Laurick, 120 N.J. 1 (1990).
The New Jersey Supreme Court has clearly stated that an “uncounseled DWI conviction
may not be used to enhance the period of incarceration for a subsequent offense.” State v.
Hrycak, 184 N.J. 351, 354 (2005), citing Laurick, supra, 120 N.J. at 16. In Laurick, the Supreme
Court stated that “in the context of repeat DWI offenses, [an uncounseled conviction without
waiver of the right to counsel] means that enhanced administrative penalties and fines may
constitutionally be imposed, but that in the case of repeat DWI convictions based on uncounseled
prior convictions, the actual period of incarceration imposed may not exceed that for an
counseled DWI convictions.” 120 N.J. at 16.
Based on the precedents established by the Supreme Court in Hrycak and Laurick, as
well as the analogous factual decision in Conroy, this Court is satisfied that the step down
provision for prior uncounseled pleas only applies to the aspects of the sentence which have the
effect of increasing defendant’s loss of liberty, which is limited to the term of imprisonment.
In this case, this is defendant’s fourth conviction for DWI, as the defendant had three
prior convictions for DWI on the following dates: January 13, 1995; May 17, 1995; and January
17, 1996. (T4-3 to 10; T10-4 to 19). Judge Lafferty further found that defendant was not
represented by counsel when he pleaded guilty to the first DWI on January 13, 1995. (T4-11 to
15; T8-17 to 21; T10-7 to 19). Because the defendant’s last conviction was in 1996, more than
10 years have passed since defendant’s DWI, and defendant should be treated as a third time
offender pursuant to the step down provision of N.J.S.A. 39:4-50(a)(3). Further, since
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defendant’s first DWI conviction in 1995 was based on an uncounseled plea, that conviction
should not be used to enhance defendant’s jail sentence to that of a third offender, in accordance
with Laurick and Hrycak. Therefore, this Court finds that defendant should only be treated as a
second offender as to the custodial portion of his sentence, and as a third offender for the
remaining portions of the sentence.
CONCLUSION
Based on the record below, and after oral argument and a de novo hearing, this Court
finds that the municipal court correctly properly sentenced the defendant as a third-time DWI
offender, and correctly sentenced defendant as a second offender solely on the jail portion of the
sentence.
As such, this Court imposes the same penalties for violations of N.J.S.A. 39:4-50, as a
third time offender, as imposed below:
Fine: $1,006
Court Costs: $33
VCCB: $50
SNSF: $75
DWI Surcharge: $100
DDEF Fee: $100
Driver License Suspension: 10 years
Ignition Interlock: 10 years
Jail: 48 hours
Date: July 16, 2014
______________________________
Honorable Edward A. Jerejian, J.S.C.
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