                                NOT FOR PUBLICATION WITHOUT THE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-3638-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANDRE L. URLIN,

     Defendant-Appellant.
________________________

                   Argued telephonically April 22, 2020 – Decided May 12, 2020

                   Before Judges Fuentes and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 17-12-1220.

                   Faugno & Associates, attorneys for appellant (Paul A.
                   Faugno, on the brief). 1



1
  Telephonic argument in this matter was scheduled for 1:00 p.m. on April 22,
2020. At 1:05 p.m., because defendant's counsel had not entered an appearance,
we deemed defense counsel's appearance waived. The State's appellate counsel
opted to rely on the State's brief. We did not receive any explanation from
defendant's counsel for his failure to appear. We have considered defendant's
written arguments as set forth in his merits brief.
            Ali Y. Ozbek, Assistant Prosecutor, argued the cause
            for respondent (Camelia M. Valdes, Passaic County
            Prosecutor, attorney; Ali Y. Ozbek, of counsel and on
            the brief).

PER CURIAM

      Defendant Andre Urlin appeals from the denial of his motion to dismiss

an indictment charging him under N.J.S.A. 2C:40-26(b) with the fourth-degree

crime of operating a motor vehicle during a period of license suspension for a

second or subsequent violation of driving while intoxicated (DWI), N.J.S.A.

39:4-50. We affirm.

      The facts are undisputed. While driving his car on February 4, 2017,

defendant was lawfully stopped by a law enforcement officer in the City of

Clifton. At the time of the motor vehicle stop, defendant's driver's license was

suspended as a result of a second or subsequent DWI violation.2 Defendant

received a summons for driving while his license was suspended in accordance

with N.J.S.A. 39:3-40 of the motor vehicle code.

      Although the case commenced in the municipal court for the City of

Clifton, the municipal prosecutor referred the matter to the Passaic County



2
   Defendant was convicted of DWI in 2002, 2011, and 2012. A person with
three or more DWI convictions forfeits "the right to operate a motor vehicle over
the highways of this State for eight years." N.J.S.A. 39:4-50(a)(3).
                                                                         A-3638-18T2
                                       2
Prosecutor's Office. On December 19, 2017, a Passaic County grand jury

indicted defendant under the criminal statute, N.J.S.A. 2C:40-26(b), for

operating a vehicle while his license was suspended.

      Defendant moved to dismiss the indictment, arguing an ambiguity

between the criminal statute, N.J.S.A. 2C:40-26, and the motor vehicle code,

N.J.S.A. 39:3-40, resulting in a violation of his right to due process. Defendant

claimed the statutes conflict because they impose different sentences for the

same offense of driving while suspended. He asserted a person of ordinary

intelligence would not know the conduct prohibited or the consequences flowing

from that conduct. He also contended the two statutes provided the prosecutor

with "unfettered and unbridled discretion to pick and cho[o]se which statute to

proceed upon" for those charged with driving while suspended.

      After hearing counsels' arguments, the judge rendered a December 10,

2018 oral decision and a February 25, 2019 supplemental written decision,

denying defendant's motion to dismiss the indictment. The judge concluded

            the two statutes at issue (N.J.S.A. 39:3-40 and N.J.S.A.
            2C:40-26) are not, either standing alone or in concert
            with each other, ambiguous or inconsistent, do not
            punish the same conduct, and that this defendant as well
            as others similarly situated (i.e., those who previously
            pled to a D.W.I. under N.J.S.A. 39:4-50), were put on
            notice about potential penal consequences for driving
            while suspended during the punitive period.

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                                       3
      The judge explained

              the language of the statute coupled with the [n]otice
              provided to the defendant [when he pled guilty in 2012]
              was sufficient enough to provide him with notice of
              what the punishment would be and thus, as applied to
              this defendant, the statutes were not vague or
              ambiguous. This defendant had actual notice of the
              prohibited conduct, and the penalties for violating such.

      After denial of his motion to dismiss, defendant pled guilty to the indicted

charge subject to his right to appeal. He was sentenced to probation for two

years following a period of 180 days to be served in the county's correctional

facility. The judge stayed the sentence pending defendant's appeal.

      On appeal, defendant argues:

              THE LOWER COURT'S DETERMINATION THAT
              THE APPLICABLE STATUTES WERE NOT
              FACIALLY VAGUE AND/OR AS APPLIED WAS
              ERRONEOUS.

      A denial of a motion to dismiss an indictment is reviewed for abuse of

discretion. State v. Hogan, 144 N.J. 216, 299 (1996). A grand jury indictment

will only be disturbed if the indictment is "manifestly deficient or palpably

defective." Ibid. However, where the issue raised in a motion to dismiss an

indictment is purely legal, our review is de novo. State v. Twiggs, 233 N.J. 513,

532 (2018).



                                                                          A-3638-18T2
                                         4
      Defendant contends the criminal statute, N.J.S.A. 2C:40-26, and the motor

vehicle code provision, N.J.S.A. 39:3-40, addressing persons who drive while

their license is suspended, when read together are unconstitutionally vague and

his motion to dismiss the indictment should have been granted as a result. We

disagree because there was nothing vague or ambiguous regarding defendant's

indictment under N.J.S.A. 2C:40-26.

      We start with the strong presumption in favor of a statute's

constitutionality.   State v. Muhammad, 145 N.J. 23, 41 (1996).          "That

presumption is 'particularly daunting when a statute attempts to protect the

public health, safety, or welfare.'" State v. Lenihan, 219 N.J. 251, 266 (2014)

(quoting In re C.V.S. Pharmacy Wayne, 116 N.J. 490, 497 (1989)). A party

challenging the constitutionality of a statute bears the burden of proving a

constitutional violation "beyond a reasonable doubt." Muhammad, 145 N.J. at

41. "Even where a statute's constitutionality is 'fairly debatable, courts will

uphold' the law." Lenihan, 219 N.J. at 266 (quoting Newark Superior Officers

Ass'n v. City of Newark, 98 N.J. 212, 227 (1985)).

      Constitutional due process is violated when a statute is vaguely drafted

such that a "person of ordinary intelligence" is unable to discern what the law

commands or prohibits. State v. Cameron, 100 N.J. 586, 591 (1985) (quoting


                                                                       A-3638-18T2
                                      5
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)). A criminal statute

is unconstitutionally vague and violates due process if it fails "to provide notice

and warning to an individual that his or her conduct could subject that individual

to criminal or quasi-criminal prosecution." State v. Hoffman, 149 N.J. 564, 581

(1997) (citing Screws v. United States, 325 U.S. 91, 101-02 (1945)). A penal

statute is constitutional if the statute presents a complete definition of the

criminal act and the corresponding punishment. State v. Manzie, 168 N.J. 113,

116-17 (2001).

      Defendant argues that because N.J.S.A. 2C:40-26 and N.J.S.A. 39:3-40

can both be applied to punish recidivist DWI offenders who drive with a

suspended license, the statutes "cause confusion to any reasonably intelligent

reader as to what penalties one would be exposed to if caught driving on t he

suspended list for a DWI conviction or subsequent DWI conviction."

      The judge correctly determined the two statutes are different and punish

different conduct such that a person of ordinary intelligence is informed of the

prohibited activity and the consequences for engaging in that unlawful conduct.

N.J.S.A. 39:3-40 prohibits a person whose license has been suspended from

operating a motor vehicle during the suspension. A person who violates this

statute for driving while suspended for a DWI conviction shall be fined $500.


                                                                           A-3638-18T2
                                        6
Additionally, the person shall have his or her license to operate a motor vehicle

suspended for a time period between one and two years and imprisonment in the

county jail for a time period between ten days and ninety days.

      Under the criminal statute, N.J.S.A. 2C:40-26, it is a fourth-degree crime

if a defendant drives while suspended pursuant to a "second or subsequent" DWI

violation. If a defendant is convicted under this statute, the court must impose

a "fixed minimum sentence of not less than 180 days during which the defendant

shall not be eligible for parole." N.J.S.A. 2C:40-26(c).

      The criminal statute accords stiffer penalties for persons, such as

defendant, who continue to drive despite multiple DWI license suspensions. A

plain reading of N.J.S.A. 2C:40-26 provides adequate notice to persons of

ordinary intelligence that an individual who drives while suspended in

connection with a second or subsequent DWI shall be sentenced to a prison term

of not less than 180 days. The criminal statute is clear that driving while

suspended for a second or subsequent DWI conviction subjects the offender to

a specific term of imprisonment.

      Additionally, in this case, defendant received both a written and verbal

explanation of the consequences of driving while suspended on February 10,

2012 when he pled guilty to his third DWI. Defendant admitted to signing a


                                                                         A-3638-18T2
                                       7
written notice, advising that if he were convicted of driving on a DWI-related

license suspension, he could "be subject to penalties under N.J.S.A. 39:3 -40

(traffic offense) or N.J.S.A. 2C:40-26 (4th degree crime) depending on the

circumstances surrounding [the] violation."       The notice further advised

defendant that if found guilty under the criminal statute, he "[would] be subject

to a term of mandatory imprisonment up to [eighteen] months, of which at least

[six] months shall be served without parole. Additional penalties may also be

imposed . . . based on the exact nature of your charges." By signing the notice,

defendant acknowledged he had been informed of these potential consequences

"orally in open court." Because defendant had actual notice of the prohibited

conduct and the penalties for engaging in that conduct, the two statutes are not

unconstitutionally vague as applied to him.

      We next consider defendant's contention that since the prosecutor has

"unfettered and unbridled discretion" in electing whether to prosecute defendant

under N.J.S.A. 39:3-40 or N.J.S.A. 2C:40-26, exposing defendant to different

punishments, his constitutional right to due process was violated. Prosecutorial

discretion in deciding sentencing exposure does not render application of the

more punitive statute unconstitutionally arbitrary. See State v. T.C., 347 N.J.

Super. 219, 231 (App. Div. 2002). The decision to charge a defendant under


                                                                         A-3638-18T2
                                       8
one of two or more "overlapping" statutes, where one statute may carry a harsher

penalty for substantially similar or even identical conduct, "generally rest[s] in

the prosecutor's discretion." Id. at 229.

      Unlike the motor vehicle code provision, N.J.S.A. 39:3-40, the criminal

statute, N.J.S.A. 2C:40-26, serves a more specific and punitive legislative

purpose in situations warranting the more serious charge to be applied, such as

when a defendant has more than one prior DWI conviction. The Legislature

enacted N.J.S.A. 2C:40-26 in response to reports that recidivist DWI offenders

driving on suspended licenses were responsible for serious or fatal traffic

accidents. See State v. Carrigan, 428 N.J. Super. 609, 614 (App. Div.

2012). Recognizing public safety concerns related to DWI offenders who

continue to drive despite license suspension, the Legislature "narrowed the field

of persons against whom charges could be lodged," State v. Perry, 439 N.J.

Super. 514, 525 (App. Div. 2015), and "stiffened the sanction" for recidivist

DWI offenders, Carrigan, 428 N.J. Super. at 613. Given defendant's history of

DWI convictions in this case, the prosecutor appropriately exercised his

discretion in deciding to charge defendant under the more punitive criminal

statute.

      Affirmed.


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