                    NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-5026-14T1

STATE OF NEW JERSEY,

     Plaintiff-Respondent,                APPROVED FOR PUBLICATION

v.                                             November 21, 2016

                                               APPELLATE DIVISION
CHARLES WHEATLEY,

     Defendant-Appellant.


           Submitted November 10, 2016 – Decided           November 21, 2016

           Before Judges Simonelli, Carroll and Gooden
           Brown.

           On appeal from the Superior Court of New
           Jersey,   Law    Division,  Ocean County,
           Municipal Appeal No. 01-15.

           Marshall, Bonus, Proetta & Oliver, attorneys
           for appellant (Jeff Thakker, of counsel;
           Stephen F. McGuckin, on the briefs).

           Joseph D. Coronato, Ocean County Prosecutor,
           attorney for respondent (Samuel Marzarella,
           Supervising Assistant Prosecutor, of counsel;
           O. Nicholas Monaco, Assistant Prosecutor, on
           the brief).

     The opinion of the court was delivered by

CARROLL, J.A.D.

     Defendant Charles Wheatley pled guilty in the Manchester

Township   Municipal   Court   to   driving     while    intoxicated      (DWI),

N.J.S.A.   39:4-50(a),   pursuant    to    a    plea    agreement    by    which
related     charges    of     reckless     driving,      N.J.S.A.          39:4-96,       and

failure to maintain a lane of vehicular travel, N.J.S.A. 39:4-

88(b),    were    dismissed.         The   narrow     issue     presented          in   this

appeal is whether the heightened penalties contained in N.J.S.A.

39:4-50(a)(2),        applicable      upon      conviction      of     a     second      DWI

offense     under     N.J.S.A.       39:4-50(a),       may      be     imposed          where

defendant's predicate "first offense" occurred within a school

zone   as   defined     by    N.J.S.A.     39:4-50(g),        but     the    second       DWI

offense did not.

       The procedural history and factual background underlying

this appeal are undisputed.             In 2007, defendant was convicted in

Delran Township of DWI in a school zone in violation of N.J.S.A.

39:4-50(g).1          Defendant      was     arrested     and        charged       by    the

Manchester Police in the instant matter on May 5, 2014.                                   On

January     14,   2015,      defendant     pled      guilty    in     the        Manchester

Township     Municipal       Court    under      subsection      (a)        of    the    DWI

statute,     N.J.S.A.        39:4-50.          The   municipal        court        rejected

defendant's contention that because he was previously convicted

under subsection (g) of the DWI statute, he should be sentenced

as a first offender under subsection (a).                        Consequently, the

1
  The record on appeal does not include a copy of the summons or
the plea and sentencing transcripts.    No explanation has been
given for the absence of this documentation. However, in their
respective briefs the parties agree upon the accuracy of this
prior history.



                                           2                                       A-5026-14T1
municipal    court     sentenced    defendant        as     a    second     offender

consistent   with     the    penalties        prescribed    by    N.J.S.A.     39:4-

50(a)(2).       Specifically,           the     municipal        court     suspended

defendant's license for two years; ordered him to serve forty-

eight hours in the Intoxicated Driver Resource Center, perform

thirty days of community service, and place an interlock device

on his car; and imposed applicable fines, penalties, and court

costs.   The municipal court stayed the sentence pending appeal.

      The Law Division, on de novo review, similarly held that

the   second-offense        penalties    of     subsection       (a)     applied   to

defendant's current DWI conviction.               The court imposed anew the

sentence that the municipal court imposed, and continued the

stay of defendant's sentence pending this appeal.

      Defendant presents the following arguments in his appeal:

            POINT I

            SUBSECTIONS "(g)" AND "(a)" OF N.J.S.A.
            39:4-50 REPRESENT SEPARATE AND DISTINCT
            OFFENSES, BASED ON THE PLAIN LANGUAGE OF THE
            STATUTE,   THE   LEGISLATIVE   HISTORY,   THE
            PRINCIPLES   OF  LENITY,   AND  THE   SUPREME
            COURT'S DECISION IN STATE V. REINER[, 180
            N.J. 307 (2004)]; [DEFENDANT] WAS A FIRST-
            TIME N.J.S.A. 39:4-50(a) [OFFENDER] AND
            COULD ONLY HAVE BEEN CONVICTED AND SENTENCED
            ACCORDINGLY.

            POINT II

            IT WAS NOT ESTABLISHED THAT THE MANCHESTER
            MUNICIPAL COURT HAD JURISDICTION OVER THIS




                                         3                                  A-5026-14T1
           MATTER; THE CONVICTION IS VOID. (Not Raised
           Below).

    Our role on appeal after a trial de novo under Rule 3:23 is

to determine whether there is sufficient credible evidence in

the record supporting the Law Division's decision.                 State v.

Johnson, 42 N.J. 146, 162 (1964).         Unlike the Law Division, we

do not independently assess the evidence.          State v. Locurto, 157

N.J. 463, 471 (1999).         However, we review de novo the trial

court's   legal   conclusions    that   flow   from    established    facts.

State v. Handy, 206 N.J. 39, 45 (2011).

    Pertinent     to   this   appeal,   N.J.S.A.      39:4-50   provides    in

relevant part:

                Except as provided in subsection (g) of
           this section, a person who operates a motor
           vehicle   while   under  the   influence  of
           intoxicating liquor . . . with a blood
           alcohol concentration of 0.08% or more . . .
           shall be subject:

                  (1) For the first offense:

                (i) if the person's blood alcohol
           concentration is 0.08% or higher but less
           than 0.10% . . . to a fine of not less than
           $250 nor more than $400 and a period of
           detainment of not less than 12 hours nor
           more   than  48   hours   spent  during  two
           consecutive days of not less than six hours
           each day and served as prescribed by the
           program requirements of the Intoxicated
           Driver Resource Centers . . . and, in the
           discretion   of   the   court,  a   term  of
           imprisonment of not more than 30 days    and
           [suspension of driving privileges] for a
           period of three months[.]



                                    4                                A-5026-14T1
               . . . .

              (2) For a second violation, a person
         shall be subject to a fine of not less than
         $500 nor more than $1000, and . . .
         community service for a period of 30 days .
         . . [and] imprisonment for a term of not
         less than 48 consecutive hours . . . nor
         more than 90 days, and [suspension of
         driving privileges] for a period of two
         years . . . .

    However, when the violation of N.J.S.A. 39:4-50 occurs in

any one of three areas designated as a school zone, subsection

(g) of the statute prescribes harsher penalties.           Specifically,

in such instances,

         [t]he convicted person shall: for a first
         offense, be fined not less than $500 or more
         than $800, be imprisoned for not more than
         60 days and have his license . . . suspended
         for a period of not less than one year or
         more than two years; for a second offense,
         be fined not less than $1,000 or more than
         $2,000, perform community service for a
         period of 60 days, be imprisoned for not
         less than 96 consecutive hours . . . nor
         more than 180 days . . . and have his
         license . . . suspended for a period of four
         years[.]2

         [N.J.S.A. 39:4-50(g)(3).]

    Relying   on   Reiner,   supra,   defendant   renews   his   argument

that because he was previously convicted under subsection (g) of

N.J.S.A. 39:4-50 and not subsection (a), he must therefore now


2
  Both subsections (a) and (g) provide additionally increased
penalties for a third or subsequent offense.



                                  5                              A-5026-14T1
be sentenced as a first offender under N.J.S.A. 39:4-50(a).                         For

the reasons that follow, we find defendant's reliance on Reiner

inapposite.

    In Reiner, the defendant had previously been convicted of

DWI under subsection (a) when he was thereafter convicted of DWI

in a school zone under subsection (g).                   Reiner, supra, 180 N.J.

at 309-11.         The issue before the Court was whether defendant

should be sentenced as a second offender pursuant to subsection

(g), even though he had no prior convictions for DWI in a school

zone.      Ibid.      The     Court   found      that   the   ambiguities     in    the

language     of    the    statute,     and      the     inconclusive      legislative

history    when     the     DWI   statute       was   amended     in   1999   to    add

subsection (g), compelled it "to construe the statute strictly,

against the State and in favor of the defendant."                       Id. at 318.

Because the penalties for a second offender under subsection (g)

were approximately twice those applicable to a second offender

under subsection (a), the Court held that subsection (g) is "a

separate offense that requires other subsection (g) convictions

for repeat status to attach."             Ibid.

    Importantly,          however,     the      Court     noted    "the    anomalous

sentencing that would result" on remand were the defendant to be

sanctioned    only       as   a   first   offender        under   subsection       (g),

because the penalties for that offense were significantly less




                                            6                                 A-5026-14T1
severe than the penalties for a second subsection (a) offense.

Id. at 319.          Consequently, the Court concluded that "the trial

court    should       sentence       defendant     in    accordance         with    the

heightened penalties that apply as a consequence of being a

second-time offender under subsection (a).                 We believe that that

application fulfills the legislative intent with regard to the

punishment of repeat DWI offenders."               Id. at 319-20.

       The factual scenario of the present case is the converse of

that addressed by the Court in Reiner.                     Unlike Reiner, here

defendant was first convicted of the school zone offense and

then    the   general    DWI    offense.        Both    subsections    of    the    DWI

statute require the same elements of proof, except that the

State must additionally prove the offense occurred in a school

zone in order to establish a violation of subsection (g), with

its    attendant      harsher      penalties.      In   effect,     then,    although

Reiner deemed them to be separate offenses, subsection (a) is a

lesser-included        offense      of    subsection    (g).      In   the    related

context of our Criminal Code, N.J.S.A. 2C:1-8d(1) explains that

an offense is included when "[i]t is established by proof of the

same    or    less    than   all    the    facts   required    to   establish       the

commission of the offense charged[.]"

       Thus, when defendant was convicted of DWI in a school zone

in Delran in 2007, the State necessarily established all the




                                            7                                 A-5026-14T1
elements       necessary       to     sustain      not     only    a     subsection     (g)

violation but also a subsection (a) violation.                             Subsequently,

when defendant pled guilty to N.J.S.A. 39:4-50(a) in Manchester

Township in 2015, the same basic elements of the conventional

DWI statute were again established.                       As the Law Division judge

aptly     noted,     "defendant's           conviction       for    DWI    contrary        to

subsection (a) is a second conviction for the same generally

pr[o]scribed conduct, DWI."                 Analogizing this matter to Reiner,

we   believe     that     the       heightened      penalties       that    apply     as    a

consequence of being a second, rather than a first, offender

under    subsection       (a)       "fulfill[]     the     legislative      intent     with

regard to the punishment of repeat DWI offenders."                                  Reiner,

supra, 180 N.J. at 320.                Accordingly, the heightened penalties

applicable      to   a    second      offender      pursuant       to    N.J.S.A.     39:4-

50(a)(2) were properly imposed.

      Defendant's remaining argument that it was not established

that the Manchester Municipal Court had jurisdiction over this

matter,     raised       for    the    first       time    in     this    appeal,     lacks

sufficient merit to warrant discussion.                     R. 2:11-3(e)(2).

      Affirmed.          The stay of the sentence is vacated and the

matter    is    remanded        to    the    Law    Division       for    imposition       of

sentence.




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