                        NOT FOR PUBLICATION WITHOUT THE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-0163-17T1

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

SAMUEL VIANA,

     Defendant-Respondent.
____________________________________

              Argued April 11, 2018 – Decided August 31, 2018

              Before Judges Fuentes, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              16-12-1524.

              Stephanie Davis Elson, Assistant Prosecutor,
              argued the cause for appellant (Esther Suarez,
              Hudson County Prosecutor, attorney; Stephanie
              Davis Elson, on the brief).

              Rochelle Watson, Assistant Deputy Public
              Defender, argued the cause for respondent
              (Joseph E. Krakora, Public Defender, attorney;
              Rochelle Watson, of counsel and on the brief).

              Liza Weisberg argued the cause for amicus
              curiae American Civil Liberties Union of New
              Jersey (American Civil Liberties Union of New
              Jersey, attorneys; Alexander Shalom, Alexi
            Machek Valez, Liza Weisberg, Edward Barocas
            and Jeanne LoCicero, on the brief).

            Carol   M.  Henderson,   Assistant   Attorney
            General, argued the cause for amicus curiae
            the Office of the Attorney General (Gurbir S.
            Grewal, Attorney General, attorney; Carol M.
            Henderson, of counsel and on the brief).

PER CURIAM

     While driving a car, defendant Samuel Viana was involved in

an accident that resulted in the death of one person and serious

injury of another.    Defendant did not have a driver's license at

the time of the accident.    However, the Assistant Prosecutor who

first presented this case to the Grand Jury believed defendant was

driving with a suspended driver's license at the time of the

accident.    Thus, the Hudson County Prosecutor's Office (HCPO)

indicted defendant on one count of being involved in a motor

vehicle accident that resulted in the death of another person

while his license was suspended, a third degree offense under

N.J.S.A. 2C:40-22(a).

     The Criminal Part granted defendant's motion to dismiss the

indictment based on the State's failure to present evidence to the

Grand Jury that addressed all the elements of the offense.       The

HCPO presented the case again to a different Grand Jury and

obtained a second indictment.   This time, however, the trial court

ruled that under the facts of this case, defendant cannot be


                                  2                         A-0163-17T1
indicted under N.J.S.A. 2C:40-22 as a matter of law and dismissed

the indictment with prejudice.

       In support of her decision, the trial judge relied on State

v. Perry, 439 N.J. Super. 514 (App. Div. 2015), a case involving

N.J.S.A. 2C:40-26, a statute that criminalizes those who drive

while their driver's licenses are suspended for a second or more

conviction for driving while intoxicated (DWI) under N.J.S.A.

39:4-50. The legal question before this court in Perry was whether

a defendant can be convicted under N.J.S.A. 2C:40-26 if "the act

of    driving   occurs     beyond   the       determinate    sentenced    term    of

suspension" imposed by the court for violating N.J.S.A. 39:4-50

or N.J.S.A. 39:4-50.4(a), but "while the driver continues on

administrative suspension."           Id. at 519.      Writing for the panel,

our   colleague    Judge    Alvarez    concluded      that   N.J.S.A.     2C:40-26

"criminalizes the operation of a motor vehicle only while the

operator is serving the court-imposed term of suspension, and not

thereafter."      Ibid.

       The trial judge found the essence of Judge Alvarez's reasoning

in Perry applied with equal force in this case.                          The judge

concluded that defendant could not be prosecuted under N.J.S.A.

2C:40-22 because at the time of the car accident, defendant's

driver's license had been suspended by the Motor Vehicle Commission

(MVC) as a sanction, as opposed to a suspension ordered by a judge

                                          3                                A-0163-17T1
as part of a sentence.   The judge also found support for her ruling

in the legislative history of N.J.S.A. 2C:40-22.          The judge

concluded that the Legislature did not intend the statute to apply

to those whose driver's licenses are suspended based only on their

failure to pay a monetary penalty or fine.

     In this appeal, the State argues the trial court misapplied

our holding in Perry to conclude defendant cannot be prosecuted

under N.J.S.A. 2C:40-22.      The State contends the legislative

history of N.J.S.A. 2C:40-22 does not support the trial judge's

analysis and ultimate conclusion. The State argues the Legislature

intended to punish all those who defy their unlicensed status and

are involved in a car accident that results in the death or injury

of others.   The State notes that the Legislature amended the Bill

to eliminate any distinction between those who drive without ever

having been issued a license, and those who have had their license

suspended or revoked.

     Defendant urges us to affirm the trial judge's ruling.         He

contends that the State's interpretation of N.J.S.A. 2C:40-22 does

not properly consider the language in the second part of the

statute that implies the driver must be serving a determinate term

of license suspension at the time the accident occurred. Defendant

claims his license suspension was indefinite because it was imposed



                                  4                          A-0163-17T1
as a means of encouraging him to pay an outstanding fine, unrelated

to a motor vehicle violation under Title 39.

     According      to    defendant,       if   we     adopt      the    State's

interpretation of N.J.S.A. 2C:40-22, it would create inconsistency

in the lengths of suspensions and disadvantage those who cannot

afford to pay their fines. Finally, defendant argues that N.J.S.A.

2C:40-22 is unconstitutionally vague as applied to these facts

because it does not give fair warning to those whose driver's

licenses are administratively suspended.

     On February 27, 2018, this court issued a sua sponte pre-oral

argument order that directed the parties

              to submit supplemental briefs addressing: (1)
              whether the North Arlington Municipal Court
              had the statutory authority to suspend
              defendant's driver's license for failure to
              comply with a time payment order imposed for
              an offense unrelated to the Parking Offenses
              Adjudication Act, N.J.S.A. 39:4-139.2 to
              -139.14. See N.J.S.A. 39:3-40(i); and (2) the
              State must submit a supplemental appendix that
              includes the notice of driver's license
              suspension sent to defendant by the Motor
              Vehicle Commission in accordance with N.J.S.A.
              39:4—139.10 or any other relevant authority.

     We also invited the State Attorney General and the Office of

the Public Defender (OPD) to participate in this appeal as Amici

Curie   and     submit   additional    briefing      addressing    the    issues

identified herein.       The Attorney General accepted our invitation.



                                       5                                 A-0163-17T1
With our consent, the American Civil Liberties Union (ACLU) agreed

to substitute for the OPD.

     As a threshold matter, we conclude the trial court erred in

dismissing the indictment against defendant with prejudice.      The

legal reasoning that drove our holding in Perry is not applicable

to a prosecution under N.J.S.A. 2C:40-22.     The plain language of

the statute shows the Legislature expressly identified N.J.S.A.

39:3-40 to define the class of defendants subject to prosecution

under N.J.S.A. 2C:40-22.     We also hold that N.J.S.A. 2C:40-22 is

not unconstitutionally vague and does not improperly discriminate

against defendants whose driving privileges are suspended because

they are unable to pay fines or other monetary penalties ordered

by a court as part of sentence, or imposed by the MVC as an

administrative sanction.

     In the supplemental brief the HCPO submitted in response to

our sua sponte order, the State clarified that defendant was an

unlicensed driver at the time of the accident.         Under these

circumstances, the State argues defendant had constructive notice

that he was not legally authorized to drive a motor vehicle. Thus,

the issues related to the class of defendants whose driver's

licenses are suspended as a sanction for a failure to appear in

court or to pay court-ordered fines through an installment plan

have been rendered moot and are therefore no longer relevant to

                                  6                         A-0163-17T1
this appeal1. However, because these issues involved questions of

public importance and are likely to reoccur, we have decided to

address them here nonetheless.     See Joye v. Hunterdon Cent. Reg'l

High Sch. Bd. of Educ., 176 N.J. 568, 583 (2003).

                                   I

     We   start   our   analysis   guided   by   certain   rudimentary

principles of statutory construction:

          [T]he   starting   point   of   all  statutory
          interpretation must be the language used in
          the enactment. We construe the words of a
          statute in context with related provisions so
          as to give sense to the legislation as a whole.

          If the plain language leads to a clear and
          unambiguous result, then our interpretative
          process is over. We rely on extrinsic evidence
          of legislative intent only when the statute
          is ambiguous, the plain language leads to a
          result inconsistent with any legitimate public
          policy objective, or it is at odds with a
          general statutory scheme.

          [Spade v. Select Comfort Corp., 232 N.J. 504,
          515 (2018) (internal citations omitted).]

N.J.S.A. 2C:40-22(a) provides:

          Any person who, while operating a motor
          vehicle in violation of [N.J.S.A.] 39:3-40 or
          while the person's driver's license is
          suspended or revoked in any other State,
          . . . or without ever having been issued a

1
  In an order dated April 13, 2018, we denied defendant's motion
to strike the section of the State's supplemental brief that
alleged defendant was an unlicensed driver at the time of the
accident. On remand, the State must present sufficient evidence
of these alleged facts before a Grand Jury.

                                   7                           A-0163-17T1
           driver's license by this or any other State
           . . . is involved in a motor vehicle accident
           resulting in the death of another person,
           shall be guilty of a crime of the third degree,
           in addition to any other penalties applicable
           under   [N.J.S.A.]   39:3-40   or   any   other
           provision of law.       Upon conviction, the
           person's driver's license or reciprocity
           privilege shall be suspended for an additional
           period of one year, in addition to any
           suspension applicable under [N.J.S.A.] 39:3-
           40 and shall be consecutive to any existing
           suspension or revocation. If the person did
           not have a driver's license at the time the
           accident occurred, the person shall be
           disqualified from obtaining a driver's license
           in this State for a period of one year. The
           additional period of suspension, revocation or
           disqualification shall commence upon the
           completion of any term of imprisonment.

           [N.J.S.A. 2C:40-22(a) (emphasis added).]

N.J.S.A.   2C:40-22(b)   contains    identical   language,   except     it

criminalizes as a fourth degree offense accidents that result in

serious bodily injury, as defined in N.J.S.A 2C:11-1.

     The   prosecution   of   an   offense   under   N.J.S.A.   2C:40-22

involves the interplay of three statutory schemes.        An indictment

that charges a defendant with the third degree offense under

N.J.S.A. 2C:40-22(a) requires the State to present evidence from

which a Grand Jury can find probable cause that defendant: (1)

operated a motor vehicle in violation of N.J.S.A. 39:3-40, or

without ever having been issued a driver's license by this or any

other State; and (2) was involved in a motor vehicle accident


                                    8                            A-0163-17T1
resulting in the death of another person.     In cases in which a

defendant was operating a motor vehicle with a suspended driver's

license, the State must produce evidence that the driver's license

was suspended under one of the subsections in N.J.S.A. 39:3-40,

which in part states:

          No person to whom a driver's license has been
          refused   or   whose   driver's   license   or
          reciprocity privilege has been suspended or
          revoked, or who has been prohibited from
          obtaining a driver's license, shall personally
          operate a motor vehicle during the period of
          refusal,     suspension,    revocation,     or
          prohibition.

          [N.J.S.A. 39:3-40.]

     For purposes of this appeal, we will focus on N.J.S.A. 39:3-

40(i), which provides:

          If the violator's driver's license to operate
          a motor vehicle has been suspended pursuant
          to [N.J.S.A. 39:4-139.10] or for failure to
          comply with a time payment order, the violator
          shall be subject to a maximum fine of $100
          upon proof that the violator has paid all
          fines and other assessments related to the
          parking violation that were the subject of the
          Order of Suspension, or if the violator makes
          sufficient payments to become current with
          respect to payment obligations under the time
          payment order . . . .

          [(Emphasis added).]

Under N.J.S.A. 39:4-139.10, a person's driver's license may be

suspended for failure to respond to a notice to appear in municipal



                                9                           A-0163-17T1
court, or for failure to pay outstanding parking judgments or

penalties.

       The final leg of this three-legged statutory stool is N.J.S.A.

2B:12-31(a)(2), which authorizes the municipal court to order the

suspension of a person's driving privileges, if that person has

failed "to pay a fine or costs, make restitution, perform community

service, serve a term of probation, or do any other act as a

condition of that sentence . . . ."         N.J.S.A. 2B:12-31(b) requires

that "[p]rior to any action being taken pursuant to the provisions

of this section, the defendant shall be given notice of the

proposed action and afforded an opportunity to appear before the

court to contest the validity of the proposed action."

       For purposes of clarity, it is worth restating the differences

between N.J.S.A. 2C:40-26 and N.J.S.A. 2C:40-22.           N.J.S.A. 2C:40-

26 criminalizes driving a motor vehicle while one's driver's

license was suspended for a second or more conviction for DWI

under N.J.S.A. 39:4-50.     The interplay in N.J.S.A. 2C:40-26 is a

narrow one.    The only uncertainty our decision in Perry clarified

concerned the nature of the suspension.              Defendants who have

completed their court-ordered suspension may not be prosecuted

under   N.J.S.A.   2C:40-26,   even    if   they   drive   before   the   MVC

reinstated their driving privileges.           Perry, 439 N.J. Super. at

519.

                                  10                                 A-0163-17T1
     The class of individuals who may be prosecuted under N.J.S.A.

2C:40-22 is far more expansive than under N.J.S.A. 2C:40-26.

Because we discern no ambiguity in the plain language of the

statute, our interpretative process is over. Select Comfort Corp.,

232 N.J. at 515.

     The trial court erred in dismissing the indictment against

defendant   with   prejudice.      Because   the    State   discovered

defendant's status as an unlicensed person while this appeal was

pending, we remand this matter for the State to re-present this

case before a new Grand Jury.      We conclude our decision on this

cautionary note.    N.J.S.A. 2C:40-22 transforms what otherwise

would be a civil tort into a criminal offense, based only on

defendant's status as an unlicensed driver.        Because judges have

the power to suspend a defendant's driver's license based on the

failure to pay monetary penalties on an installment plan, the

prosecution of this offense must be carried out with scrupulous

adherence to constitutional safeguards, lest we make poverty a

crime.

     Reversed and remanded.     We do not retain jurisdiction.




                                 11                            A-0163-17T1
