                        NOT FOR PUBLICATION WITHOUT THE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-4541-16T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

EMMA PRESTON,

        Defendant-Appellant.

_______________________________________

              Submitted May 22, 2018 – Decided July 16, 2018

              Before Judges Mawla and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Municipal Appeal
              No. 6194.

              Richard J. Kaplow attorney for appellant.

              Michael A. Monahan, Acting Union County
              Prosecutor, attorney for respondent (Izabella
              M. Wozniak, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
       Defendant Emma Preston appeals from an order of the Law

Division denying a motion to vacate her guilty plea to two motor

vehicle offenses.       We affirm.

                                       I.

       On July 12, 2012, defendant was operating a motor vehicle

while intoxicated in Westfield.             She lost control of the car and

struck a tree.       Officer Kevin J. O'Keefe was dispatched to the

scene where he observed a contusion on defendant's forearm and a

small   laceration    to    her   eyelid.      Defendant    declined   medical

treatment.      While      speaking   with     defendant,   Officer    O'Keefe

detected a strong odor of alcohol emanating from her, and noticed

other indicia of intoxication.         Defendant failed a field sobriety

test.    Her blood alcohol level tested above the legal limit.

       While investigating the accident, Office O'Keefe spoke with

defendant's passenger, Christopher Weber.            The officer detected a

strong odor of alcohol emanating from Weber, who admitted he had

been drinking.     Although an emergency medical technician was on

scene, Weber denied medical treatment and left on his own accord.

       On July 12, 2012, defendant was issued summonses charging her

with    careless   driving,       N.J.S.A.    39:4-97,   and   driving     while

intoxicated    (DWI),      N.J.S.A.   39:4-50.      On   October   18,     2012,

defendant appeared in the Fanwood Municipal Court, where the matter

had been transferred because the judge in Westfield had previously

                                        2                                A-4541-16T3
represented Weber in a civil matter.        Pursuant to a negotiated

plea agreement, defendant pled guilty to both offenses.          Prior to

the   plea   allocution,   defendant's   attorney   had   the   following

exchange with the court:

             THE COURT:     Was Mr. Weber injured in the
                            incident?

             MR. KAPLOW:    I don't know.   He went out and
                            hired –

             THE COURT:     Do you know the attorney of
                            record?

             MR. KAPLOW:    He went out and hired a lawyer
                            and I believe that there's a
                            claim that he's injured. I
                            don't know the extent of his
                            injuries is (sic) really --

Defendant's attorney also stated, "[t]hank goodness . . . that

there doesn't appear to be any serious injury . . . from what I

know." The judge advised defendant that had Weber suffered serious

bodily injuries she would be in Superior Court facing criminal

charges.1

      In her plea allocution, defendant admitted that she began

drinking alcohol approximately an hour and a half before the crash,

consuming almost an entire bottle of wine. She admitted to driving


1
  Defendant's counsel argues that at the 2012 municipal court
proceedings he gave the court a June 2, 2016 letter from an
attorney stating that he represented Weber with respect to serious
bodily injuries incurred in the accident. However, the letter is
dated almost four years after defendant's guilty plea.

                                   3                              A-4541-16T3
carelessly while intoxicated and driving her car into a tree.              The

court suspended defendant's driving privileges for three months,

imposed mandatory fines and penalties, and ordered her to complete

twelve hours at the Intoxicated Driver Resource Center.

       On July 30, 2015, defendant incurred a second DWI conviction.

       On March 24, 2016, a grand jury indicted defendant on charges

unrelated to the July 12, 2012 accident.           She was charged with

fourth-degree driving while suspended for a second DWI conviction,

N.J.S.A. 2C:40-26(b), and third-degree assault by auto, N.J.S.A.

2C:12-1(c)(3)(a).      Defendant also received a summons for DWI,

N.J.S.A. 39:4-50.      Those charges are pending.

       On January 1, 2017, a grand jury indicted defendant on charges

unrelated to the July 12, 2012 accident.          Defendant was charged

with   fourth-degree    driving    while   suspended   for   a   second    DWI

conviction, N.J.S.A. 2C:40-26(b), third-degree representing self

as another, N.J.S.A. 2C:21-17(a)(4), and fourth-degree obstructing

the administration of law, N.J.S.A. 2C:29-1(a).              Defendant was

also   issued   a   disorderly    person   complaint   charging   her     with

hindering apprehension or prosecution by giving false information,

N.J.S.A. 2C:29-3(b)(4).     Those charges are pending.

       On March 2, 2017, defendant appeared in municipal court on a

motion to vacate her 2012 guilty plea.         The validity of the 2012

conviction may be relevant to defendant's pending charges for

                                      4                              A-4541-16T3
driving while suspended for a second DWI conviction, N.J.S.A.

2C:40-26(b), and will determine whether the 2016 DWI charge, if

proven, will be defendant's second or third DWI conviction.

     Defendant argued that the municipal court lacked jurisdiction

to accept her guilty plea due to N.J.S.A. 2B:12-17.2(a).       That

statute provides

          [i]n any matter concerning Title 39 of the
          Revised Statutes where death or serious bodily
          injury has occurred, regardless of whether the
          death or serious bodily injury is an element
          of the offense or violation, the Superior
          Court shall have exclusive jurisdiction over
          the offense or violation until such time that
          the Superior Court transfers the matter to the
          municipal court.

          [N.J.S.A. 2B:12-17.2(a).]

Defendant argued that Weber was seriously injured in the July 12,

2012 accident, and that the matter was never transferred to the

Superior Court pursuant to N.J.S.A. 2B:12-17.2(a).

     In support of her motion, defendant produced medical records

indicating that Weber went to a hospital emergency room on August

24, 2012, approximately six weeks after the accident, complaining

of abdominal pain.   According to the records, Weber reported that

the pain began two to three weeks earlier, but that he believed

the symptoms "may be related" to the accident.        The records

indicate that the "mechanism of injury" to Weber is "unknown."     A

CAT scan administered that day revealed a subcapsular hematoma on

                                 5                         A-4541-16T3
Weber's spleen, requiring an immediate splenectomy. Postoperative

examination records indicate that Weber told his physician "that

he had a CAT scan at some point after the accident and that it was

negative."   No medical provider causally related Weber's spleen

laceration to the July 12, 2012 accident.2

     The State opposed defendant's motion, arguing that at the

time of the accident there was no indication that defendant or

Weber sustained serious bodily injury.   Thus, there was no reason

for the Westfield police to refer the matter to the prosecutor's

office for investigation.    In addition, the State argued that

because defendant was never charged with an indictable offense,

the Superior Court never had jurisdiction over this matter.      The

State also argued that the purpose of N.J.S.A. 2B:12-17.2(a) is

to prevent a defendant from avoiding prosecution on criminal

charges arising from a motor vehicle accident by first resolving

related Title 39 violations in municipal court and triggering

double jeopardy protections.     The State argued the statute's

purpose is not contravened because defendant was never charged


2
  Notably, the records indicate that Weber twice denied a history
of alcohol use. This contradicts his admission at the scene of
the accident that he had consumed alcohol, calling into question
the veracity of his statements to medical personnel. Defendant's
brief states that she produced the medical records to the municipal
court in 2012. This appears to be a typographical error, as the
transcript of the 2012 plea allocution does not reference Weber's
medical records, which were presented to the court in 2017.

                                6                           A-4541-16T3
with an indictable offense, and no such charges were or are

contemplated.

     The municipal court denied defendant's motion.          The court

found that the medical records do not prove that Weber suffered

serious bodily injury in the accident.       To reach this conclusion,

the court relied on the six-week gap between the accident and

Weber's emergency room treatment, the record notation that Weber

had a CAT scan after the accident that was negative, and the

inability to take testimony from Weber, who died before the hearing

from causes unrelated to the accident.      In addition, the municipal

court judge agreed that N.J.S.A. 2B:12-17.2(a) is intended to

prevent   a   defendant   from   avoiding   criminal   prosecution   for

injuries caused by a motor vehicle accident by resolving Title 39

charges in municipal court before resolution of criminal charges

in Superior Court, circumstances not present here.

     Defendant appealed to the Law Division, where on June 9,

2017, Judge John M. Deitch issued a comprehensive written opinion

rejecting her claims.     The trial court treated defendant's motion

as an application for post-conviction relief pursuant to Rule

3:22-2(b) and Rule 7:10-2(c)(2).        The court determined that she

did not establish that she was entitled to an evidentiary hearing.

     Finding the statute ambiguous with respect to whether the

Superior Court obtains jurisdiction in the circumstances presented

                                    7                           A-4541-16T3
here, the trial court examined the statute's legislative history

to discern its intent. The court noted that N.J.S.A. 2B:12-17.2(a)

was enacted in response to the holding in State v. Dively, 92 N.J.

573 (1983), and the facts that gave rise to In re Seelig, 180 N.J

234 (2004). In Dively, the defendant was driving while intoxicated

when his careless driving resulted in the death of another driver.

92 N.J. at 576.    He was issued five municipal court summonses,

including one for DWI.     When the municipal court proceedings

commenced, the parties and the court were aware of the death

resulting from the accident. Ibid. The defendant entered a guilty

plea to DWI, and other Title 39 violations.      Id. at 576-77.        A

grand jury later indicted the defendant for causing death by auto,

N.J.S.A. 2A:113-9 (repealed), based on the same accident that was

the subject of the municipal court summonses.    Id. at 577.

     Although the defendant entered a guilty plea to the criminal

charge in Superior Court, the next day, the United States Supreme

Court issued its decision in Illinois v. Vitale, 447 U.S. 410

(1980).   In that case, Vitale carelessly drove his car and struck

two children who died from their injuries.   Id. at 411.   After the

driver was convicted of a traffic offense related to the accident,

he was indicted for involuntary manslaughter for the death of the

two children.   Id. at 412-13.   Ultimately, the Supreme Court held

that if the prosecution of Vitale on the criminal charges required

                                  8                            A-4541-16T3
the same proofs that were necessary to establish the motor vehicle

violation, Vitale's prosecution on the criminal charges would be

barred   by   the    Double      Jeopardy      Clause    of    the    United        States

Constitution.        Id.    at   421.      The     matter     was    remanded       for    a

determination       of     whether      Illinois     could     prove        involuntary

manslaughter    without       proving     the    facts      supporting       the     motor

vehicle offense of which Vitale was convicted.                      Ibid.

     Believing that the decision in Vitale barred his conviction

on the death by auto charge on double jeopardy grounds, the

defendant in Dively moved to withdraw his guilty plea.                          Dively,

92 N.J. at 577.          The prosecutor conceded that the same evidence

that would have been offered to prove the municipal court charges

would be necessary to prove the criminal                      charge against the

defendant.    The Superior Court permitted the defendant to enter a

guilty plea conditioned on his right to raise the double jeopardy

argument, which the trial court denied, on appeal.                     Ibid.

     Our Supreme Court held that the motor vehicle violations of

which Dively was convicted and the criminal offense for which he

was indicted were based on the same facts.                          Thus, the Court

concluded, in order to prove the criminal charge the State would

rely on the same evidence and alleged acts that underlie the motor

vehicle offenses, triggering double jeopardy protections.                           Id. at



                                           9                                       A-4541-16T3
582-83.      In order to prevent this situation from arising in the

future, the Court reiterated its prior directive that

             where a complaint is filed in the municipal
             court and the magistrate has reason to believe
             that the factual situation out of which the
             complaint arose may also involve an indictable
             offense, the matter should be referred to the
             county prosecutor.

             [Id. at 589-90.]

     In addition, the Court issued a "directive to all municipal

court   judges   to    withhold   actions   on    drunk   driving   incidents

involving personal injuries until clearance to proceed has been

obtained from the county prosecutor."              Id. at 590.      This was

followed by a May 3, 1983 Administrative Directive that provides

that when a complaint is issued in the municipal court and the

judge   or    administrator   believes      the   factual   situation     also

involves an indictable offense, the matter should be referred to

the prosecutor.       Seelig, 180 N.J. 234.

     In Seelig, a motorist collided with a disabled vehicle,

killing two.     Id. at 237-38.      The motorist was charged with two

counts of aggravated manslaughter, and death by auto.                 He was

arraigned and released on bail.           Police thereafter issued three

summonses for motor vehicle violations arising from the accident.

Id. at 238.       With the criminal charges pending, the motorist

appeared in municipal court and entered a guilty plea to the motor


                                     10                               A-4541-16T3
vehicle violations. Although the judge asked if anyone was injured

in the accident, he did not follow up when the motorist's counsel

responded affirmatively.   Id. at 239.      The entry of the pleas

raised "double jeopardy issues in connection with prosecution on

the charged indictable offenses."    Id. at 240.   The State's motion

to vacate the guilty pleas because of deficiencies in the municipal

court proceeding was granted.   Id. at 241.

     After considering these decisions, Judge Deitch held that the

purpose of N.J.S.A. 2B:12-17.2(a) is to prevent defendants from

using the holding in Dively to preclude criminal prosecution by

resolving traffic violations in municipal court before resolution

of indictable offenses arising from a traffic accident.     The judge

also held that the "stated goal of the statute is to provide for

the disposition of these matters in one court and avoid the

municipal and Superior Court working at odds with each other."

     The trial court found that defendant was no longer in danger

of being exposed to liability in two courts, given the State's

declaration that it has no intention of prosecuting her on criminal

charges arising from the July 12, 2012 accident.     In addition, the

court found that defendant was in much the same position as the

defendant in Seelig, seeking to use double jeopardy precedents to

avoid penalties for her actions.       Were her guilty plea to be

vacated, defendant would not face criminal charges, and the State

                                11                            A-4541-16T3
would have the difficult task of proving at a new trial motor

vehicle infractions alleged to have taken place six years prior.

     The trial court also found that defendant's arguments failed

under the doctrine of judicial estoppel.             Under the doctrine, a

party is barred "from arguing a position inconsistent with one

previously asserted" in a judicial proceeding.           State v. Gonzalez,

142 N.J. 618, 632 (1995) (quotations and citations omitted).                    "To

be estopped a party must have convinced the court to accept its

position    in    the   earlier   litigation,"     Kimball     Int'l,    Inc.    v.

Northfield Metal Prods., 334 N.J. Super. 596, 606-07 (App. Div.

2000) (quotations omitted), and "a party's inconsistent behavior

will otherwise result in a miscarriage of justice," State v.

Jenkins,    178   N.J.    347,    359   (2004)   (quotations    and     citations

omitted).

     The trial court noted that at the plea allocution defendant's

counsel advised the municipal court that there appeared to be no

serious injury.         This representation was accepted by the court,

and benefitted defendant because the municipal court did not stay

the matter to permit an investigation by the prosecutor's office

into possible criminal charges against defendant.              The trial court

also noted that the municipal court judge advised defendant that

if there had been serious bodily injury in the accident, the matter



                                        12                                A-4541-16T3
would be in Superior Court.      On June 9, 2017, Judge Deitch entered

an Order denying defendant's application.

     This   appeal   followed.     On   appeal,   defendant   raises   the

following argument:

            THE TRIAL COURT ERRED IN ITS INTERPRETATION
            AND APPLICATION OF N.J.S.A. 2B:12-17.2

     Having reviewed the record in light of defendant's arguments

and the law, we conclude that defendant's arguments are without

sufficient merit to warrant discussion in a written opinion.             R.

2:11-3(e)(2).    We affirm substantially for the reasons expressed

by Judge Deitch in his thorough and well-reasoned written decision.

     Affirmed.




                                   13                             A-4541-16T3
