                                NOT FOR PUBLICATION WITHOUT THE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-4496-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DANIEL TALBOT,

     Defendant-Appellant.
_____________________________

                    Submitted February 12, 2019 – Decided April 23, 2019

                    Before Judges Fisher and Hoffman.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Municipal Appeal No. 6183.

                    Levow DWI Law, PC, attorneys for appellant (Evan M.
                    Levow, of counsel and on the brief; Sandra L. Battista,
                    on the brief).

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

PER CURIAM
      Defendant Daniel Talbot appeals from a May 2, 2017 Law Division order

denying his petition for post-conviction relief (PCR), arising from his 1998

guilty plea and conviction for refusing to submit to a breathalyzer test. In

support of his appeal, defendant presents the following argument:

             APPELLANT'S GUILTY PLEA AND SENTENCE
             ARE ILLEGAL BECAUSE APPELLANT PLEADED
             GUILTY TO A VIOLATION OF N.J.S.A. 39:4-50.2
             BUT WAS SENTENCED UNDER N.J.S.A. 39:4-
             50.4a.

Following our review of the record, we reject this argument and affirm.

      In November 1997, Officer Andrew Perrella charged defendant with

violating N.J.S.A. 39:4-50, driving while intoxicated (DWI), and N.J.S.A. 39:4-

50.2, refusal to submit to a breathalyzer examination. The matter proceeded to

trial in April 1998.         After the defense presented testimony from an

otolaryngologist, who explained how a medical condition of defendant affects

his balance, the State moved to dismiss the DWI charge. At that point, defendant

withdrew his not guilty plea to the refusal charge, and advised the court during

a plea colloquy, "I have decided to plead guilty to the refusal of the breathalyzer

test [charge]." He then affirmed that when he was arrested, he "refused to submit

to the breathalyzer test."




                                                                           A-4496-16T2
                                        2
      After finding defendant's testimony "established a factual basis for

accepting his plea," the municipal court judge accepted "the plea of refusing to

take the breathalyzer test . . . in violation of [N.J.S.A.] 39:4-50.2," and imposed

applicable fines and penalties, including a ten-year revocation of defendant's

driver's license. According to defendant, he appealed this conviction "and was

not successful."

      In November 2015, defendant filed the matter under review with the

municipal court. Defendant's sole argument in his PCR petition asserts that he

"was charged under N.J.S.A. 39:4-50.2, a statute that does not allege a motor

vehicle violation," that he pleaded "guilty to N.J.S.A. 39:4-50.2, but the

conviction was entered under N.J.S.A. 39:4-50.4a," and therefore he "was

convicted under a statute that he did not plead guilty to." His petition seeks to

have his plea "vacated and the matter . . . dismissed."

      Following oral argument before the same municipal court judge who

accepted defendant's guilty plea in 1998, the judge rejected defendant's

arguments and denied his petition.       Defendant appealed this denial to the

Superior Court, where Judge John M. Deitch also denied PCR, rejecting

defendant's contention that N.J.S.A. 2C:39-50.4a and N.J.S.A. 39:4-50.2 are

separate and distinct from each other.           The judge found defendant's


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                                        3
interpretation "is directly in conflict with State v. Marquez, 202 N.J. 485, 501

(2010)," where the Court stated that in order to "identify all of the elements of

the refusal offense, we must look at the plain language of both statutes because

although they appear in different sections, they are plainly interrelated." The

judge went on to point out that the Court found "the statutes not only cross -

reference one another internally, but they also rely on each other substantively.

They must therefore be read together." Id. at 502.

      Judge Deitch also rejected defendant's reliance on State v. Nunnally, 420

N.J. Super. 58 (App. Div. 2011) as "misplaced." He explained that in Nunnally,

            the defendant, a driver of a Department of Public Works
            plow truck, was arrested for a suspected violation of
            N.J.S.A. 39:3-10, which prohibits the operation of a
            commercial motor vehicle with an alcohol
            concentration of 0.04 [percent] or more. Id. at 62. The
            defendant refused to submit to an Alcotest and was
            charged with violating N.J.S.A. 39:4-50a, the general
            refusal statute, instead of the [commercial driver's
            license (CDL)] statute pursuant to N.J.S.A. 39:3-10.24.
            Ibid. The Law Division, upholding the [m]unicipal
            [c]ourt's decision, dismissed the refusal charge and held
            that the State could not amend the complaint on the day
            of trial and beyond the [ninety-day] statute of
            limitations. Ibid. The Appellate Court affirmed,
            finding that CDL refusal is not a lesser included offense
            of the general refusal statute because the two offenses
            require proof of different elements. Therefore, because
            the State failed to charge the correct substantive
            offense, amendment under [Rule] 7:2-5 and [Rule]
            7:140-2 was improper. Id. at 65-66. . . .

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                                       4
      In contrast to Nunnally, Judge Deitch determined defendant "was not a

commercial driver; thus, N.J.S.A. 39:3-10.24" does not apply. Further, he found

there was no risk of defendant "having been confronted with two substantively

different offenses," like the defendant in Nunnally. In fact, the Nunnally court

"accepted the reading of N.J.S.A. 39:4-50.2 and 50.4 in pari materia to establish

the elements of general refusal."     Judge Deitch correctly determined that

Nunnally does not support vacating defendant's conviction.

      Judge Deitch further noted, "The failure to cite to N.J.S.A. 39:4-50.a,

while technically incorrect, did not prejudice [d]efendant." He concluded that

"[n]othing from the plea allocution makes this [c]ourt question whether

[d]efendant knew he was facing a possible conviction of refusal to submit to a

breathalyzer," as the plea hearing judge continuously referred to the charge of

refusing to submit to the breathalyzer; in addition, defendant was represented by

counsel during his trial and plea allocution. The judge entered an order denying

defendant's application and defendant appealed.

      Before us, defendant continues to contend we should vacate his conviction

solely because he was charged and pleaded guilty to a violation of N.J.S.A. 39:4-

50.2, but was sentenced under N.J.S.A. 39:4-50.4a. When reviewing a decision

on a municipal appeal to the Law Division, we defer to the trial court's findings


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                                       5
of fact if "the findings made could reasonably have been reached on sufficient

credible evidence present in the record." State v. Kuropchak, 221 N.J. 368, 382-

83 (2015) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). However, we

owe no deference to the trial court's decision on an issue of law "and the

consequences that flow from established facts," which we review de novo. State

v. Hubbard, 222 N.J. 249, 263 (2015) (citing State v. Gandhi, 201 N.J. 161, 176

(2010)).

        The implied consent statute, N.J.S.A. 39:4-50.2, provides in pertinent part

that:

              [a]ny person who operates a motor vehicle on any
              public road, street or highway . . . shall be deemed to
              have given his consent to the taking of samples of his
              breath for the purpose of making chemical tests to
              determine the content of alcohol in his blood; provided,
              however, that the taking of samples is made . . . at the
              request of a police officer who has reasonable grounds
              to believe that such person has been operating a motor
              vehicle in violation of the provisions of [N.J.S.A.] 39:4-
              50 . . . .

                    ....

              No chemical test . . . may be made or taken forcibly and
              against physical resistance thereto by the defendant.
              The police officer shall, however, inform the person
              arrested of the consequences of refusing to submit to
              such test in accordance with section 2 [N.J.S.A. 39:4-
              50.4a] of this amendatory and supplementary act. A
              standard statement, prepared by the chief administrator,

                                                                           A-4496-16T2
                                          6
            shall be read by the police officer to the person under
            arrest.

      In addition, N.J.S.A. 39:4-50.4a provides that "the municipal court shall

revoke the right to operate a motor vehicle of any operator who, after being

arrested for [DWI] . . . refuse[d] to submit to a [chemical] test provided for in

section 2 of . . . [N.J.S.A. 39:4-50.2] when requested to do so . . . ." In

determining whether a person is guilty of refusal,

            [t]he municipal court shall determine . . . whether the
            arresting officer had probable cause to believe that the
            person had been driving or was in actual physical
            control of a motor vehicle . . . while the person was
            under the influence of intoxicating liquor or a narcotic,
            hallucinogenic, or habit-inducing drug or marijuana;
            whether the person was placed under arrest . . . and
            whether he refused to submit to the test upon request of
            the officer; and if these elements of the violation are not
            established, no conviction shall issue.

            [Ibid.]

      As Judge Deitch correctly noted, in State v. Marquez the Court found

these statutes "plainly interrelated," 202 N.J. at 501, and because they "cross-

reference one another internally" and "rely on each other substantively," the

statutes "must therefore be read together." Id. at 502. The Court also stated:

            A careful reading of the two statutes reveals four
            essential elements to sustain a refusal conviction: (1)
            the arresting officer had probable cause to believe that
            defendant had been driving or was in actual physical

                                                                          A-4496-16T2
                                        7
            control of a motor vehicle while under the influence of
            alcohol or drugs; (2) defendant was arrested for driving
            while intoxicated; (3) the officer requested defendant to
            submit to a chemical breath test and informed defendant
            of the consequences of refusing to do so; and (4)
            defendant thereafter refused to submit to the test.

            [Id. at 503 (citing N.J.S.A. 39:4-50.2(e), 39:4-50.4a(a);
            State v. Wright, 107 N.J. 488, 490 (1987)).]

      In Marquez, the Court held that reading the standard statement is a

necessary element of a refusal conviction, and rejected the contention that the

procedural safeguards of N.J.S.A. 39:4-50.2 are not a substantive element of the

refusal offense. Id. at 506. The Court added that "[t]he fact that motorists are

deemed to have implied their consent, pursuant to [N.J.S.A. 39:4-50.2], does not

alter that conclusion." Ibid. The Court held that N.J.S.A. 39:4-50.2 and N.J.S.A.

39:4-50.4a "nonetheless impose an obligation on officers to inform drivers of

the consequences of refusal." Ibid.

      Defendant correctly points out that in State v. Cummings, 184 N.J. 84, 90

n.1 (2005), the Court observed that N.J.S.A. 39:4-50.4a is the "exact statutory

provision applicable to breathalyzer refusal cases," and that "care should be

taken to list . . . N.J.S.A. 39:4-50.4a" in the summons charging refusal.

However, the Cummings Court did not hold that dismissal is required when the

summons cites N.J.S.A. 39:4-50.2 rather than N.J.S.A. 39:4-50.4a.           Ibid.


                                                                         A-4496-16T2
                                       8
(finding "no prejudice resulting from it"). Such a conclusion would run counter

to the Court's later decision in Marquez, where the Court held that the elements

of the refusal offense are drawn from both N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-

50.4a. Marquez, 202 N.J. at 501-02.

      Judge Deitch correctly determined that the summons issued to defendant

for refusing to submit to the breath test was not fatally flawed.      Since the

elements of the refusal offense are found in both N.J.S.A. 39:4-50.2 and N.J.S.A.

39:4-50.4a, the citation of only the former statute does not require dismissal of

the summons. Under these circumstances, dismissal of the charges would exalt

form over substance, an approach our courts have "properly rejected." State v.

Fisher, 180 N.J. 462, 472 (2004). Moreover, defendant was not prejudiced

because the officer read him the standard statement, which informed him of the

penalties for refusal set forth in N.J.S.A. 39:4-50.4a.

      Judge Deitch also correctly found Nunnally distinguishable. As the judge

noted, the defendant in Nunnally was charged with a CDL refusal and the officer

cited the general refusal statute in the summons. In this case, defendant was

charged with general refusal, and while the summons cited only N.J.S.A. 39:4-

50.2, the summons was not fatally flawed because the implied consent law and

the refusal statute must be read together.


                                                                         A-4496-16T2
                                        9
      We further concur with the judge's finding that the plea allocution

provides no basis to question whether defendant knew he was facing a possible

conviction of refusal to submit to a breathalyzer. The prosecutor and plea

hearing judge stated multiple times that defendant was pleading guilty only to

the refusal charge. This was affirmed by defendant's counsel, and defendant

himself when he testified he "decided to plead guilty to refusal of the

breathalyzer test." Shortly after, he affirmed that when he was arrested, he

"refused to submit to the breathalyzer test."

      Affirmed.




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                                       10
