                                NOT FOR PUBLICATION WITHOUT THE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-4011-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARTI WOODWARD, a/k/a
MARTHA E. WOODWARD,

     Defendant-Appellant.
_____________________________

                    Submitted June 4, 2019 – Decided June 20, 2019

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 16-11-
                    1138.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Elizabeth Cheryl Jarit, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Alexis R. Agre, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from her conviction for fourth-degree operating a

motor vehicle during a second or subsequent license suspension, N.J.S.A.

2C:40-26(b). The judge found aggravating factors three and nine, imposed a

two-year probationary sentence, which the judge conditioned upon serving 270

days in jail, with a 180-day period of parole ineligibility. On appeal, defendant

argues:

            POINT I

            FAILURE TO PROVIDE AN INSTRUCTION TO
            THE JURY LIMITING THE JURY'S USE OF THE
            MANY         ADMITTED,            OUT-OF-COURT
            STATEMENTS BY NON-TESTIFYING WITNESSES
            DENIED [DEFENDANT] DUE PROCESS AND A
            FAIR TRIAL. (Partially Raised Below).

            POINT II

            RESENTENCING IS REQUIRED BECAUSE THE
            COURT DOUBLE-COUNTED AND FAILED TO
            PROVIDE A STATEMENT OF REASONS IN
            FINDING THE TWO AGGRAVATING FACTORS,
            AND BECAUSE OF ERRORS CONTAINED WITHIN
            THE JUDGMENT OF CONVICTION.

            A. The trial court's finding of aggravating factor three
            double-counted . . . defendant's "use of alcohol," which
            is an element of the offense, and is otherwise
            unsupported by the record.

            B. The trial court failed to provide a statement of
            reasons for aggravating factor nine.


                                                                         A-4011-17T4
                                       2
              C. A remand is required to correct the Judgment of
              Conviction, which states that the conviction and
              sentence were the result of a negotiated plea.

We affirm, but remand to correct a typographical error on the judgment of

conviction.

      An officer was behind a Mazda and decided to do a random license plate

inquiry. He used his on-board computer system, entered the plate number, and

learned that the license of the registered owner had been suspended. He pulled

over the vehicle and, while still in his patrol car, he viewed the driver's license

photograph of the person with the suspended license. He approached the Mazda,

identified himself, and noticed that the driver of the Mazda – defendant –

matched the photo of the person whose license was suspended.

      Defendant gave the officer her credentials, but was unable to locate her

license. After defendant confirmed she owned the Mazda, the officer checked

if defendant had any outstanding warrants. He learned that her license had been

suspended as part of a conviction for driving while intoxicated (DWI). At that

time, the officer issued motor vehicle citations to defendant but did not arrest

her, until after he reviewed her driving abstract. Upon reviewing the abstract,

he learned that defendant's license had been suspended a second time – for ten

years – as part of a conviction for refusing to submit to a breath test.


                                                                           A-4011-17T4
                                         3
     The State charged defendant with operating a motor vehicle during a

period of license suspension for a second or subsequent DWI conviction, in

violation of N.J.S.A. 2C:40-26(b), which provides:

            It shall be a crime of the fourth degree to operate a
            motor vehicle during the period of license suspension
            in violation of [N.J.S.A.] 39:3-40, if the actor's license
            was suspended or revoked for a second or subsequent
            violation of [N.J.S.A.] 39:4-50 or section 2 of
            [N.J.S.A.] 39:4-50.4a. A person convicted of an
            offense under this subsection shall be sentenced by the
            court to a term of imprisonment.

To be convicted under the statute, the State must prove beyond a reasonable

doubt:

            1. That the defendant knowingly operated a motor
            vehicle;

            2. That the defendant's license was suspended or
            revoked for . . . her

                  ....

                 (b) second or subsequent violation of [driving
                 while intoxicated] or [refusal to submit to a
                 chemical breath test]; and

            3. That the defendant knew that . . . her license was
            suspended or revoked.

            [Model Jury Charges (Criminal), "Driving While
            License is Suspended or Revoked for DWI or Refusal
            to Submit to a Chemical Breath Test (N.J.S.A. 2C:40-
            26)" (rev. Apr. 11, 2016).]

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                                        4
      Defendant contends that the judge erred by overruling objections to

purported hearsay statements that she maintains the State used to prove the

second and third elements of the offense. She argues further that the judge failed

to give a related limited jury instruction (which defense counsel never

requested). We conclude these contentions lack sufficient merit to warrant

discussion in this written opinion. R. 2:11-3(e)(2). We make the following brief

remarks.

      On appellate review of a trial court's evidentiary ruling, the decision will

be upheld "absent a showing of an abuse of discretion, i.e., there has been a clear

error of judgment." State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v.

Brown, 170 N.J. 138, 147 (2001)). Thus, to overturn such a decision, the prior

ruling must have been "so wide of the mark that a manifest denial of justice

resulted." Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). We see

no such abuse here.

       The officer referenced three out-of-court statements during his

testimony. First, that his motor vehicle computer system advised him defendant

had a DMV violation and her license was suspended. Second, that central

dispatch advised him they confirmed defendant's license was suspended for a

DWI conviction. And third, that his on-call sergeant advised him not to arrest


                                                                           A-4011-17T4
                                        5
defendant until they verified the number of DWI convictions she had. The

statements are not hearsay because the State did not offer them for their truth.

Rather, the State used them to explain what steps the officer took before

charging defendant with the offense.

      On appeal, defense counsel argues that the judge should have instructed

the jury not to consider the statements for their truth. But no such request was

made to the judge. The officer's reference to what these individuals said is not

"clearly capable of producing an unjust result." R. 2:10-2. That is especially so

because there existed overwhelming evidence of guilt, as evidenced by the

State's documentary evidence consisting of three items to which the judge took

judicial notice.

      As to the first suspension, the judge admitted into evidence S-1, which is

defendant's municipal court DWI conviction. S-1 verified defendant's DWI

conviction, a two-year license suspension, and a disposition date of August

2013. As to the second suspension, the judge admitted into evidence two

documents. S-2, which is the municipal court refusal conviction; and S-2A,

which is a related court order and certification. S-2 verified defendant's refusal

conviction, a ten-year license suspension, and a disposition date of June 2014.

S-2A, which defendant signed, reflects that defendant received written and oral


                                                                          A-4011-17T4
                                        6
notice as to the penalties for subsequent convictions for driving on the revoked

list.

        For these documents, the judge charged the jury that "you may but are not

required to accept as established any fact which has been judicially noticed." As

part of the full model jury charge, which the judge gave, on the subject of how

to consider defendant's prior motor vehicle violations, the judge charged the

jury:

              Normally, evidence of a defendant's prior motor vehicle
              violations is not permitted under our Rules of Evidence.
              This is because our rules specifically exclude evidence
              that a defendant has committed prior motor vehicle
              violations when it is offered only to show that she has
              a disposition or tendency to do wrong and, therefore,
              must be guilty of the present offense. However, our
              rules do permit such evidence when the evidence is
              used for some other purpose. In this case, the evidence
              has been introduced for the specific purpose of
              establishing an element of the present offense. You
              may not use this evidence to decide that defendant has
              a tendency to commit crimes or that she is a bad person;
              that is, you may not decide that[,] just because the
              defendant has committed prior motor vehicle
              violations[,] she must be guilty of the present crime.
              The evidence produced by the State concerning the
              prior motor vehicle convictions for driving while
              intoxicated or refusal to submit to a chemical breath test
              is to be considered only in determining whether the
              State has established its burden of proof beyond a
              reasonable doubt of the present offense.



                                                                           A-4011-17T4
                                          7
Defendant does not focus on this documentary proof. Instead, she focuses on

the non-hearsay statements.

      "Appellate review of sentencing decisions is relatively narrow and is

governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,

297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). We consider

whether the trial court has "appl[ied] correct legal principles in exercising its

discretion." Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 363

(1984)). As part of our review, we must determine whether "the aggravating

and mitigating factors found by the sentencing court were not based upon

competent and credible evidence in the record[.]" State v. Fuentes, 217 N.J. 57,

70 (2014). We will affirm the sentence if: "(1) the trial court followed the

sentencing guidelines; (2) its findings of fact and application of aggravating and

mitigating factors were 'based upon competent credible evidence in the record;'

and (3) 'the application of the guidelines to the facts' of the case does not 'shock[]

the judicial conscience.'" State v. A.T.C., 454 N.J. Super. 235, 254 (App. Div.

2018) (alteration in original) (quoting State v. Bolvito, 217 N.J. 221, 228

(2014)).

      We are convinced that the judge adhered to the sentencing guidelines,

there was no double counting, and that the record supports the judge's findings.


                                                                              A-4011-17T4
                                          8
The sentence imposed is well within the judge's sentencing discretion and does

not shock our judicial conscience.

      We affirm the conviction, but remand to correct the judgment of

conviction to reflect that this was a jury trial, not a guilty plea. We do not retain

jurisdiction.




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                                         9
