                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-5192-12T4
STATE OF NEW JERSEY,

     Plaintiff-Respondent,                  APPROVED FOR PUBLICATION

                                                   June 17, 2014
v.
                                                 APPELLATE DIVISION
SUZANNE SYLVESTER,

     Defendant-Appellant.

__________________________________


            Argued September 18, 2013 – Decided March 10, 2014

            Before Judges Fuentes, Simonelli and Haas.

            On appeal from Superior Court of New Jersey,
            Law Division, Somerset County, Indictment No.
            12-07-00511.

            Joseph B. Truland, Jr., argued the cause for
            appellant.

            Annemarie L. Mueller, Assistant Prosecutor,
            argued the cause for respondent (Geoffrey D.
            Soriano, Somerset County Prosecutor, attorney;
            Ms. Mueller, of counsel and on the brief).

            The opinion of the court was delivered by

FUENTES, P.J.A.D.

     Defendant    Suzanne     Sylvester    was    tried    before     the     Law

Division,   Criminal   Part    in   Somerset     County   on   one    count    of

fourth degree driving while her license was suspended or revoked

for a second or subsequent conviction for operating a motor
vehicle while under the influence of alcohol (DWI), N.J.S.A.

2C:40-26b.     Defendant waived her constitutional right to a trial

by jury, and agreed to be tried before Judge Robert B. Reed,

acting as the trier of fact.

     Based on facts stipulated by defendant and the State on the

record, Judge Reed found defendant guilty and sentenced her to a

three-year term of probation subject to a mandatory minimum term

of 180 days incarceration1 without parole, and imposed other

statutorily required fines and penalties.2

     In      this    appeal,    defendant's    principal    arguments     are

predicated on collaterally attacking the legal viability of the

Title   39    convictions      that   formed   the   underlying   basis   for

criminal culpability under N.J.S.A. 2C:40-26b.             We reject these

arguments and affirm.           We gather the following facts from the

record developed before the trial court.

                                        I

     On April 19, 2013, defendant appeared before Judge Reed

represented     by    private    counsel.      The   Assistant    Prosecutor

representing the State and defense counsel informed the court

1
  By order dated July 11, 2013, we granted defendant's motion and
stayed the execution of the custodial term pending the outcome
of this appeal.
2
  The trial court also merged defendant's conviction of the
parallel offense under Title 39 of driving while her license was
suspended. N.J.S.A. 39:3-40.



                                        2                           A-5192-12T4
that   they   had   agreed   to   submit   on   stipulated   facts,   "and

therefore, no witnesses regarding the stipulations are required

to testify at trial."        The Assistant Prosecutor then placed the

following stipulated facts on the record:

          First, on March 25th of 2012, defendant
          Susan [sic] Sylvester was knowingly driving
          her motor vehicle on Route 206 in Peapack-
          Gladstone, New Jersey.    She pulled to the
          side of the road.    Officer Anthony Damiano
          from the Peapack-Gladstone Police Department
          pulled behind the defendant. Defendant told
          Officer Damiano that she was driving and had
          run out of gas.

          Second.     Officer  Damiano   learned  that
          defendant's driver's license was currently
          suspended for a DWI conviction. On February
          17th of 2011, defendant was convicted in
          Mendham Municipal Court of DWI in violation
          of N.J.S.A. 39:4-50. She was sentenced to a
          two-year loss of driver's license.      That
          driver's   license   suspension   began   on
          February 17th, 2011 and was to end on
          February 17th, 2013.

          [Third.] Defendant knew her driver's license
          was suspended for a second or subsequent DWI
          conviction when she operated her motor
          vehicle in Peapack-Gladstone on March 25th
          of 2012.

          [Fourth.]    The February 17th, 2011, DWI
          conviction was the defendant's third DWI
          conviction. She was previously convicted of
          DWI   on  September   16th,   1992,  out of
          Branchburg, New Jersey, and again on April
          2, 1991, out of Mendham, New Jersey.

          [Fifth.] On July 12th, 2012, defendant was
          indicted in Somerset County for operating a
          motor vehicle during a period of license




                                     3                           A-5192-12T4
              suspension, fourth degree, in violation of
              N.J.S.A. 2C:40-26(b).

              [Sixth.]   On August 15th of 2012, defendant
              filed a Post-Conviction Relief Motion in the
              Mendham Municipal Court seeking to vacate
              the February 17th, 2011, DWI conviction.
              The motion was granted on September 22nd,
              2012.    Defendant repled [sic] to the DWI
              charge that day, and her license was
              suspended for two years beginning September
              22nd, 2012.

       The State also moved into evidence a number of exhibits

which mostly involved documents establishing defendant's history

of Title 39 violations.           We decline to list each of these items

because, with one exception, this evidence is not relevant to

the issues raised in this appeal.              The one exception noted was

exhibit "S-3", which was admitted into evidence by the trial

court without objection.            S-3 is the Notification of Penalties

for Subsequent DWI or Driving on the Revoked List dated February

17, 2011.

       Against    this    stipulated   record,       defendant,      through     her

counsel, moved to dismiss the indictment, or for a finding of

not guilty as a matter of law.              Defense counsel argued to Judge

Reed   that    the   post-conviction    relief       granted    by   the   Mendham

Municipal      Court,     which   vacated     the    February    17,   2011      DWI

conviction,      voided    that   conviction    ab   initio,    precluding       the

State from relying on this conviction to meet its burden of

proof under N.J.S.A. 2C:40-26b.             Stated differently, because the



                                        4                                  A-5192-12T4
Mendham   Municipal     Court   found       sufficient    grounds      to    vacate

defendant's   February    17,    2011       DWI   conviction,    the    sentence

imposed as a result of this invalid conviction, the suspension

of   defendant's   driver's     license,      was   likewise    nullified         and

cannot be used by the State to meet its burden of proof under

N.J.S.A. 2C:40-26b., to wit, that defendant was driving her car

with a validly suspended license.

       Applying the standards established by the Court in State v.

Reyes, 50 N.J. 454, 458-59 (1967), and Rule 3:18-1, Judge Reed

denied    defendant's     motion    to       dismiss     the    indictment         or

alternatively to enter a judgment of acquittal as a matter of

law.   Judge Reed found that

           the proofs at the end of the State's case
           plainly permit a reasonable fact finder
           directly or by way of inference to conclude
           beyond a reasonable doubt that . . . on and
           before   [March   25,]  2012   [defendant's]
           driving privilege was suspended by reason of
           her second or subsequent conviction of
           [DWI].

           Further, that the defendant did, knowing
           that her driving privileges was suspended by
           reason of those prior convictions, or the
           last of them, did knowingly operate her
           motor vehicle within the jurisdiction of
           this Court during the period of license
           suspension knowing that the license was
           suspended.

       As these findings show, S-3 in evidence (the Notification

of Penalties for Subsequent DWI or Driving on the Revoked List




                                        5                                   A-5192-12T4
dated February 17, 2011) played no role in Judge Reed's analysis

and ultimate conclusion to deny defendant's Rule 3:18-1 motion

to dismiss.   S-3 was noted by Judge Reed only in the context of

the following colloquy with defense counsel:

         THE COURT:   All right   Let me ask you this
         as a matter of law . . .

         Is it the defendant's position that S-3 was
         legally deficient in that it did not advise
         the defendant of the additional penalty of a
         fourth degree crime should she be convicted
         of driving on the revoked list?

         DEFENSE COUNSEL:   Yes.

         THE COURT:     Now, the reason I ask that
         question is I wonder out loud, and I expect
         although nobody's raised it yet it might be
         a   subject  of   some  discussion   in  the
         Appellate Division, [N.J.S.A.] 2C:40-26, the
         statute under which Ms. Sylvester is now
         being prosecuted, was enacted on January 18,
         2010, prior to her March 25, 2012, operation
         of the motor vehicle. It did not, however,
         become effective until the first day of the
         . . . month thereafter, which means it
         became effective on - -

         DEFENSE COUNSEL:   September 2011.

         THE COURT: - - September 2011. That might
         suggest, on the one hand, if the defendant
         was on notice of the additional penalty if
         she drove.    On the other hand, it might
         indicate that the State was under an
         obligation to advise her of it.          The
         significance of that bit of information will
         be left to my colleagues in the Appellate
         Division to discuss and discern.

         [(Emphasis added).]




                                6                       A-5192-12T4
    Judge Reed supplemented his oral findings in a memorandum

of opinion in which he described in more detail the legal basis

for his decision to deny defendant's motion to dismiss.

    Defendant now appeals raising the following arguments.

         POINT I

         THE CONVICTION MUST BE VACATED-DEFENDANT'S
         DRIVING  PRIVILEGE  WAS   SUSPENDED  BY  AN
         ILLEGAL OR UNCONSTITUTIONALLY IMPOSED COURT
         ORDER.

         POINT II

         THE DEFENDANT'S MOTION FOR A NOT GUILTY
         FINDING AT THE END OF THE STATE'S CASE AT
         TRIAL PURSUANT TO R. 3:18-1 SHOULD HAVE BEEN
         GRANTED.

         POINT III

         THE DEFENDANT'S CONVICTION FOLLOWING TRIAL
         MUST BE REVERSED-THE STATE FAILED TO PROVE
         EACH AND EVERY ELEMENT OF THE OFFENSE BEYOND
         A REASONABLE DOUBT.

         POINT IV

         THE CONVICTION MUST BE REVERSED-DEFENDANT
         WAS ADVISED BY THE STATE THAT HER ACTIONS
         WERE IN VIOLATION OF N.J.S.A. 39:3-40 ONLY,
         NOT THE INDICTABLE OFFENSE OF N.J.S.A.
         2C:40-26b.

         POINT V

         THE DEFENDANT MAY NOT BE SENTENCED TO A
         MANDATORY JAIL TERM DUE TO THE GRANTING OF A
         "LAURICK"   ORDER  FOR  THE   PREDICATE  DWI
         CONVICTION.




                               7                          A-5192-12T4
    We use the same legal standards employed by Judge Reed to

determine the legal sufficiency of defendant's motion to dismiss

the indictment or for a judgment of acquittal under Rule 3:18-1.

State v. Moffa, 42 N.J. 258, 263 (1964).                    Under the standard

established by the Supreme Court in Reyes, we must determine

"whether, viewing the State's evidence in its entirety . . . and

giving the State the benefit of all its favorable testimony as

well as all of the favorable inferences which reasonably could

be drawn therefrom, a reasonable jury could find guilt . . .

beyond   a   reasonable    doubt."     Reyes,     supra,     50    N.J.   at     459.

Applying this standard to the undisputed facts of this case, we

are in complete agreement with Judge Reed's decision to deny

defendant's motion and enter a judgment finding her guilty of

violating    N.J.S.A.     2C:40-26b.       The   record     stipulated      by   the

parties shows defendant drove her car on March 25, 2012, knowing

that her driving privileges had been suspended for two years

approximately nineteen months earlier, on February 17, 2011.

    Defendant     nevertheless       argues,     as   she    did   before      Judge

Reed, that the post-conviction relief granted by the Mendham

Municipal Court vacating her February 17, 2011 DWI conviction

voided that conviction ab initio, thus precluding the State from

relying on this conviction to meet its burden of proof under




                                       8                                  A-5192-12T4
N.J.S.A. 2C:40-26b.          This argument is without merit.            As our

Supreme Court has made clear:

            We insist on compliance with judicial orders
            to promote order and respect for the
            judicial process. Compliance is required,
            under pain of penalty, unless and until an
            individual is excused from the order's
            requirements. Thus, as long as a court order
            exists and a defendant has knowledge of it,
            the defendant may be prosecuted for a
            violation   thereof,   regardless   of   its
            deficiencies.

            [State v. Gandhi, 201 N.J. 161, 190 (2010)
            (internal citations omitted).]

    We must emphasize that defendant stipulated she knew her

license was suspended pursuant to a presumptively valid court

order when she drove her car on March 25, 2012.                  Defendant has

not come forward with any explanation that would mitigate her

decision to defy this order by driving her car on the day in

question.      This was not a case in which an unforeseen emergency

compelled defendant to undertake a course of action that she

would not have taken under ordinary circumstances.                   Absent any

mitigation,     her    actions   can    be    reasonably    characterized     as

contemptuous of the court's authority.              As Judge Reed correctly

noted in his memorandum of opinion, "[a]llowing a defendant to

evade    prosecution    by   going     back   to   the   municipal   court   and

having   the    underlying    conviction      vacated    would   frustrate   the

legitimacy of legislation and reliability of court orders."




                                        9                              A-5192-12T4
    Defendant's     reliance       on        the   post-conviction     remedy

fashioned by the Court in State v. Laurick, 120 N.J. 1 cert.

denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990),

to address un-counseled DWI convictions3 is equally unavailing.

The Court's remedy in Laurick applied only to the custodial term

required for repeat offenders in a DWI conviction under N.J.S.A.

39:4-50.     Id. at 16.     This inapplicable here because defendant

was convicted of a fourth degree offense for violating N.J.S.A.

2C:40-26b.

    Defendant's remaining arguments lack sufficient merit to

warrant discussion in a written opinion.              R. 2:11-3(e)(2).       We

vacate our order dated July 11, 2013, staying the execution of

the mandatory custodial term ordered by the trial court under

N.J.S.A.   2C:40-26b,     and   order    defendant   to   surrender   to    the

Warden of the Somerset County Correctional Facility within three

calendar days of the date this opinion is formally decided, or

to such other facility or location designated by the Somerset

County Prosecutor's Office.

    Affirmed.




3
  We do not know the underlying legal basis relied on by the
Mendham Municipal Court to support the post-conviction relief
awarded to defendant because defendant did not provide us with a
transcript of those proceedings as part of this appellate
record.



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