                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2445-14T3

STATE OF NEW JERSEY,
                                            APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                 April 27, 2016
v.
                                               APPELLATE DIVISION

ROBERT LUZHAK,

     Defendant-Appellant.
_____________________________________

            Argued April 6, 2016 – Decided April 27, 2016

            Before Judges Ostrer, Haas and Manahan.1

            On appeal from Superior Court of New Jersey,
            Law Division, Middlesex County, Indictment
            No. 13-12-1521.

            Kenneth A. Vercammen argued the cause for
            appellant.

            Brian D. Gillet, Deputy First Assistant
            Prosecutor, argued the cause for respondent
            (Andrew    C.   Carey,    Middlesex   County
            Prosecutor, attorney; Mr. Gillet, of counsel
            and on the brief).

     The opinion of the court was delivered by

MANAHAN, J.A.D.

     Defendant    Robert   Luzhak   appeals    from   his   conviction     for

violating    N.J.S.A.   2C:40-26(b)    by     driving   during      a   second

1
  Judge Ostrer did not participate in oral argument.   He joins
the opinion with the consent of counsel. R. 2:13-2(b).
license    suspension    for   driving       while   intoxicated    (DWI).      We

affirm.

       On October 13, 2013, defendant was issued a motor vehicle

summons    in   Woodbridge     for    driving   with   a   suspended    license,

N.J.S.A. 39:3-40, following a minor car accident in a parking

lot.     At the time, defendant had two prior DWI convictions: a

March 2013 conviction in Maryland, and an April 2010 conviction

in New Jersey.

       Defendant was indicted by a Middlesex County Grand Jury on

December 19, 2013, for fourth-degree operating a motor vehicle

during    a   second   license   suspension      stemming    from   a   DWI,   in

violation of N.J.S.A. 2C:40-26(b).              Defendant filed a motion to

dismiss the indictment, arguing the March 2013 conviction in

Maryland did not qualify as a predicate DWI conviction pursuant

to N.J.S.A. 2C:40-26(b).             The motion was denied on August 21,

2014.     Thereafter, defendant filed a motion to bar entry of his

motor vehicle abstract into evidence during trial, which was

denied on October 23, 2014.

       On the same date the second motion was denied, defendant

pled guilty to the indictment and to the motor vehicle summons.

During the plea colloquy, defendant admitted to pleading guilty

to "the Maryland equivalent" of a DWI, that he had a prior DWI

offense in New Jersey, and that he knowingly operated a motor




                                         2                              A-2445-14T3
vehicle while his license was suspended in connection with the

Maryland DWI.     On January 5, 2015, defendant was sentenced to

180 days in jail on the indictable charge with no eligibility of

parole, plus additional fines and penalties.             He was sentenced

to a term of ten days in jail on the motor vehicle summons,

concurrent   to   the   sentence    on    the   indictable   offense.     His

driving privileges were suspended for one year consecutive to

any current suspension.     The sentence was stayed pending appeal.

    On appeal, defendant raises the following arguments:

                                   POINT I

         THE INDICTMENT SHOULD HAVE BEEN DISMISSED
         SINCE DEFENDANT ONLY HAD ONE "CONVICTION"
         FOR [VIOLATING N.J.S.A. 39:4-50] AND THE
         STATUTE REQUIRES A SECOND VIOLATION OF
         [N.J.S.A. 39:4-50].

                                   POINT II

         THE COURT SHOULD HAVE GRANTED THE MOTION TO
         BAR THE HEARSAY [MOTOR VEHICLE COMMISSION]
         ABSTRACT AT TRIAL CONTAINING HEARSAY FROM
         MARYLAND.   THE COURT IMPROPERLY GRANTED THE
         STATE'S CROSS-MOTION TO ADMIT THE [MOTOR
         VEHICLE COMMISSION] ABSTRACT AS A BUSINESS
         RECORD   WITHOUT   WITNESS   TESTIMONY  FROM
         MARYLAND.

    We first address defendant's argument that the motion to

dismiss the indictment should have been granted because N.J.S.A.

2C:40-26(b) does not reference license suspensions from foreign

jurisdictions and, therefore, the statute should be interpreted




                                      3                             A-2445-14T3
to specifically require previous license suspensions pursuant to

N.J.S.A. 39:4-50.

      "Whether an indictment should be dismissed or quashed lies

within     the    discretion      of    the   trial      court.          Such   discretion

should not be exercised except on 'the clearest and plainest

ground' and an indictment should stand 'unless it is palpably

defective.'"        State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18

(1984)     (quoting      State    v.    Weleck,         10   N.J.       355,    364    (1952)

(citations omitted)).            Further, "[a] trial court's exercise of

this discretionary power will not be disturbed on appeal 'unless

it   has   been    clearly      abused.'"         State      v.    Warmbrun,      277      N.J.

Super. 51, 60 (App. Div. 1994), certif. denied, 140 N.J. 277

(1995)     (quoting      Weleck,       supra,     10     N.J.      at    364    (citations

omitted)).        Here, the judge held as a matter of law that the

indictment       did    not   suffer     from      an    infirmity        requiring         its

dismissal.       We agree.

      At the outset, we note that N.J.S.A. 2C:40-26(b) does not

contain    language      that    DWI    convictions          in   other    jurisdictions

qualify as convictions for the purpose of the statute.                             As such,

our decision turns upon the interpretation of the statute.                                    In

order to ascertain the Legislature's intention, we first look to

the statutory language.            DiProspero v. Penn, 183 N.J. 477, 492

(2005).      In    so    doing,    we    are      required        to    "ascribe      to    the




                                              4                                       A-2445-14T3
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[.]"                   Ibid. (citations omitted).

"Ultimately, a court's role when analyzing a statute is to give

effect to the Legislature's intent as evidenced by the 'language

of   [the]     statute,        the    policy       behind       it,    concepts     of

reasonableness and legislative history.'"                       State v. Carrigan,

428 N.J. Super. 609, 618 (App. Div. 2012) (quoting Johnson Mach.

Co. v. Manville Sales Corp., 248 N.J. Super. 285, 304 (App. Div.

1991)), certif. denied, 213 N.J. 539 (2013).

     Our     Supreme    Court    addressed         the    appropriate    manner     of

statutory     interpretation         when   the     language      is   ambiguous    or

appears contrary to legislative intent:

                  Courts   cannot  "rewrite   a  plainly-
             written enactment of the Legislature nor
             presume   that   the   Legislature  intended
             something other than that expressed by way
             of the plain language." O'Connell v. State,
             171 N.J. 484, 488 (2002). If, however, the
             Court    determines     that    "a   literal
             interpretation would create a manifestly
             absurd result, contrary to public policy,
             the spirit of the law should control."
             Turner v. First Union Nat'l Bank, 162 N.J.
             75, 84 (1999).   Furthermore, if a statute's
             plain language is ambiguous or subject to
             multiple interpretations, the Court "may
             consider extrinsic     evidence    including
             legislative history and committee reports."
             [State v. Marquez, 202       N.J. 485, 500
             (2010)].

             [State v. Frye, 217 N.J. 566, 575 (2014).]



                                            5                               A-2445-14T3
          N.J.S.A. 2C:40-26(b) states in pertinent part:

                      It shall be a crime of the fourth
                 degree to operate a motor vehicle during the
                 period of license suspension in violation of
                 [N.J.S.A. 39:3-40], if the actor's license
                 was suspended or revoked for a second or
                 subsequent violation of [N.J.S.A. 39:4-50]
                 . . . . A person convicted of an offense
                 under this subsection shall be sentenced by
                 the court to a term of imprisonment.

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."                           Senate Law and

Public Safety and Veterans' Affairs Committee, Statement to S.

2939 (November 23, 2009).              In Carrigan, supra, 428 N.J. Super.

at 614, we noted that the penalty for violation of N.J.S.A.

2C:40-26(b) was "prompted, at least in part, by reports of fatal

or    serious       accidents    that     had      been    caused        by    recidivist

offenders with multiple prior DWI violations, who nevertheless

were driving with a suspended license."

          The    interstate   Driver     License         Compact    (DLC),          N.J.S.A.

39:5D-1 to -14, enacted in 1966, L. 1966, c. 73, § 1, states:

                      It is the policy of each of the party
                 States to:

                        (1) Promote compliance with                the
                        laws,        ordinances,                   and
                        administrative       rules                 and



                                             6                                      A-2445-14T3
                   regulations    relating  to    the
                   operation of motor vehicles by
                   their operators in each of the
                   jurisdictions where such operators
                   drive motor vehicles.

                   (2) Make         the        reciprocal
                   recognition of licenses to drive
                   and eligibility therefor more just
                   and equitable by considering the
                   over-all   compliance     with   motor
                   vehicle    laws,     ordinances    and
                   administrative         rules       and
                   regulations     as     a     condition
                   precedent to the continuance or
                   issuance of any license by reason
                   of    which    the      licensee    is
                   authorized or permitted to operate
                   a motor vehicle in any of the
                   party States.

           [N.J.S.A. 39:5D-1(b).]

The DLC was enacted "to encourage the reciprocal recognition of

motor vehicle violations that occurred in other jurisdictions,

thereby increasing the probability that safety on highways would

improve overall."       State v. Colley, 397 N.J. Super. 214, 219

(App. Div. 2007) (citing State v. Regan, 209 N.J. Super. 596,

602-04 (App. Div. 1986)).2

     In   accord    with   the   DLC,       following   DWI   convictions   the

licensing authority in the "home [s]tate" (the state which has

the power to issue, suspend, or revoke the use of a driver's

license, N.J.S.A. 39:5D-2(b)), "shall give the same effect to

2
  We note that Maryland is also a participant in the DLC.                   Md.
Code Ann., Transp., § 16-701 to -708 (LexisNexis 2016).



                                        7                             A-2445-14T3
the conduct reported, . . . as it would if such conduct had

occurred in the home [s]tate," and "shall apply the penalties of

the   home   [s]tate    or       of   the   [s]tate     in   which    the    violation

occurred[.]"       N.J.S.A. 39:5D-4(a)(2).

      While there has been no reported decision dealing with the

issue presented here, we are informed by                      this court's prior

decisions regarding the applicability of foreign DWI convictions

in different contexts.            In Regan, supra, 209 N.J. Super. at 604,

we held that the Legislature intended an out-of-state conviction

for an offense equivalent to a DWI to be considered as a prior

offense for enhanced sentencing purposes on a subsequent DWI

conviction.        After Regan was decided, the Legislature amended

N.J.S.A. 39:4-50(a)(3) to state that DWI convictions in foreign

states,   regardless        of    their     participation     in     the    DLC,     shall

constitute     a    prior        conviction.       L.    1997,       c.    277,      §   1.

Consistent with the DLC, N.J.S.A. 39:4-50(a)(3) now states in

pertinent part:

                  A conviction of a violation of a law of
             a substantially similar nature in another
             jurisdiction, regardless of whether that
             jurisdiction is a signatory to the [DLC] . . .
             shall constitute a prior conviction under
             this subsection unless the defendant can
             demonstrate by clear and convincing evidence
             that    the   conviction    in    the   other
             jurisdiction was based exclusively upon a
             violation of a proscribed blood alcohol
             concentration of less than 0.08%.




                                             8                                    A-2445-14T3
       In State v. Cromwell, 194 N.J. Super. 519, 520-22 (App.

Div. 1984), we held that the DLC requires New Jersey to "give

the same effect to the conduct reported . . . as it would if

such    conduct    had    occurred    in   [New      Jersey]"    when    considering

enhanced penalties under N.J.S.A. 39:3-40 due to previous DWI

convictions in foreign states.

       Similarly in Colley, supra, 397 N.J. Super. at 218-20, we

applied    the     rationale    set    forth        in   Regan   and     Cromwell    to

conclude the defendant was subject to enhanced penalties under

N.J.S.A. 39:3-40 due to a DWI conviction in another state.                          See

also Div. of Motor Vehicles v. Lawrence, 194 N.J. Super. 1, 2-3

(App.     Div.    1983)    (upholding      defendant's         license    suspension

because N.J.S.A. 39:4-50 and New York's DWI statute were of a

"substantially similar nature" consistent with the DLC, and were

intended to "deter and punish drunk drivers.").

       We agree with the Law Division judge that defendant was

subject    to    indictment     pursuant       to   N.J.S.A.     2C:40-26(b)      based

upon    two      prior    DWI   convictions,         notwithstanding       that     one

conviction was in Maryland.            Pursuant to N.J.S.A. 39:4-50(a)(3)

and N.J.S.A. 39:5D-4(a)(2), and consistent with the clear intent




                                           9                                 A-2445-14T3
of   the   Legislature,    we    hold   that       defendant's    conviction      in

Maryland qualified as a DWI in New Jersey.3

      In support of our holding, we note that New Jersey has a

"strong public policy against drunk driving."                   Frye, supra, 217

N.J. at 582.     Consistent with that policy, we construe N.J.S.A.

2C:40-26(b) to contemplate convictions for DWI or its equivalent

in foreign jurisdictions — even those jurisdictions which are

not a party state in the DLC.              We also adopt as analogous the

rationale     enunciated    in     Regan     and     Cromwell     that    enhanced

penalties pursuant to N.J.S.A. 39:4-50 or N.J.S.A. 39:3-40 may

be triggered by a DWI conviction from another state.

      Further, we have considered the policy for the enactment of

the DLC, i.e., to promote compliance of motor vehicle laws among

the party states, and the legislative intent for the enactment

of N.J.S.A. 2C:40-26, i.e., an effort to avoid "fatal or serious

accidents . . . caused by recidivist offenders with multiple

prior   DWI   violations,    who    nevertheless        were    driving    with    a

suspended license."        Carrigan, supra, 428 N.J. Super. at 614.

When the above policy and legislative intent are considered with

this court's prior decisions in Regan, Cromwell, and Colley, we

3
   We note parenthetically there is nothing in the record
suggesting defendant attempted to clearly and convincingly
demonstrate that his Maryland DWI was based exclusively upon a
violation of a proscribed blood alcohol concentration of less
than 0.08%. N.J.S.A. 39:4-50(a)(3).



                                        10                                A-2445-14T3
conclude our determination that convictions from other states

are included in N.J.S.A. 2C:40-26(b) is wholly consistent with

the    "spirit     of   the    law[,]"    Frye,    217     N.J.   at   575,   and   the

logical conclusion of its meaning.

       We next address defendant's argument that the denial of his

motion to preclude the driver's abstract was erroneous.                              In

reaching our determination we conclude, as did the motion judge,

that the abstract was admissible as non-testimonial in nature,

and therefore, not in violation of the Confrontation Clause.

See Crawford v. Washington, 541 U.S. 36, 69-69, 124 S. Ct. 1354,

1374,    158    L.   Ed.      2d   177,   203    (2004).      Here,    the    driver's

abstract and attached notice of suspension were not created for

the sole purpose of trial or as evidence against a defendant,

unlike the laboratory certificates discussed in Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 310, 129 S. Ct. 2527, 2532, 174 L.

Ed. 2d 314, 321 (2009).

       We   also     conclude      that    the    abstract    could     properly     be

admitted as a business record pursuant to N.J.R.E. 803(c)(6) and

(8).     In State v. Zalta, 217 N.J. Super. 209, 214 (App. Div.

1987), we affirmed a conviction for violation of N.J.S.A. 39:3-

40 based upon the admission of a copy of defendant's driving

record.        See also State v. Pitcher, 379 N.J. Super. 308, 319

(App. Div. 2005), certif. denied, 186 N.J. 242 (2006) (affirming




                                           11                                 A-2445-14T3
DWI   conviction   where   arresting    officer   relied   on   defendant's

driving record as a basis for a motor vehicle stop and stating

"[Division   of    Motor   Vehicle]     records   of   drivers'     license

suspensions are deemed sufficiently reliable to be admissible as

prima facie evidence of the fact.") (citing N.J.R.E. 803(c)(8);

Zalta, supra, 217 N.J. Super. at 214).

      In   sum,    the   judge's   denial    of    defendant's     Crawford

challenge and the admission of the driver's abstract and notice

of suspension were grounded in controlling law, and did not

constitute an abuse of discretion.          See, e.g., Colley, supra,

397 N.J. Super. at 222 (citing Benevenga v. Digregorio, 325 N.J.

Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79

(2000)).

      Predicated upon our decision, the stay of the sentence is

vacated.

      Affirmed.




                                   12                              A-2445-14T3
