                                 NOT FOR PUBLICATION WITHOUT THE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-5041-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VICTOR FERRIGNO,

     Defendant-Appellant.
_____________________________

                   Submitted November 26, 2018 – Decided February 14, 2019

                   Before Judges Sabatino, Haas and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 15-08-0994.

                   Kevin G. Roe, attorney for appellant.

                   Dennis Calo, Acting Bergen County Prosecutor,
                   attorney for respondent (William P. Miller, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief; Catherine A. Foddai, Legal
                   Assistant, on the brief).

PER CURIAM
      Following defendant Victor Ferrigno's guilty plea to operating a motor

vehicle while his license was suspended for a second or subsequent violation of

driving while intoxicated (DWI), N.J.S.A. 2C:40-26(b), the trial judge imposed

a mandatory minimum 180-day jail sentence without parole eligibility, N.J.S.A.

2C:40-26(c). Guided by well-established law, we reject defendant's appeal in

which he contends the Legislature did not intend the statute to limit the judge's

discretion to sentence him to less than the mandatory minimum jail term. We

also find no merit in defendant's federal and state constitutional arguments that

the mandatory minimum jail term violates the prohibition against cruel and

unusual punishment, and deprives him of equal protection and due process.

Accordingly, we affirm.

                                        I

      On October 31, 2014, a Norwood Borough police officer stopped

defendant because his passenger side headlight was inoperable. Defendant gave

the officer a New Jersey driver's license that the officer, upon close inspection,

advised him was counterfeit.      Defendant denied the accusation and, after

providing a fake birthdate and social security number to the officer, agreed to

the officer's request to sign a written consent form to search his car. In signing

the form, defendant – in a Freudian slip – wrote his real name rather than the


                                                                          A-5041-16T2
                                        2
name that appeared on the counterfeit license. Defendant was arrested and later

indicted for fourth-degree second violation of operating a motor vehicle during

license suspension, N.J.S.A. 2C:40-26(b), and fourth-degree possession of a

false government issued identification, N.J.S.A. 2C:21-2.1(d).

       After defendant's application for a pretrial intervention program (PTI) was

rejected, he filed motions to appeal the decision and to dismiss the indictment,

claiming N.J.S.A. 2C:40-26 was unconstitutional.1         The judge denied the

motions.

       Defendant thereafter entered into a plea agreement in which he pled guilty

to a second violation of operating a motor vehicle during license suspension and

the State dismissed the charge of possession of a false government issued

identification. The judge, despite finding that the mitigating factors outweighed

the aggravating factors, sentenced defendant to a mandatory minimum 180-day

jail term based upon his interpretation of N.J.S.A. 2C:40-26. Defendant does

not assert he was not on notice that subsequent violations of driving while

suspended for DWI would result in a mandatory period of incarceration. In

pertinent part, the statute provides:

              b. It shall be a crime of the [fourth-degree] to operate
              a motor vehicle during the period of license suspension

1
    Denial of defendant's PTI application was not appealed.
                                                                          A-5041-16T2
                                         3
            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 P.L.
            1981, c. 512 ([N.J.S.A. 39:4-50.4(a)]). A person
            convicted of an offense under this subsection shall be
            sentenced by the court to a term of imprisonment.

            c. Notwithstanding the term of imprisonment provided
            under [N.J.S.A 2C:43-6] and the provisions of
            subsection e. of [N.J.S.A 2C:44-1], if a person is
            convicted of a crime under this section the sentence
            imposed shall include 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 (emphasis added).]

      As set forth in the plea agreement, defendant's jail sentence was stayed

pending this appeal that the sentence was illegal.

                                        II

      In his merits brief, defendant contends:

            I. N.J.S.A. 2C:40-26 FAILS TO REFLECT THE
            LEGISLATURE'S       INTENT  BY   REMOVING
            JUDICIAL      DISCRETION,    WHICH   THEY
            EXPRESSLY BELIEVED COURTS WOULD
            RETAIN TO AVOID UNJUST RESULTS.

            II. THE MANDATORY SIX-MONTH SENTENCE
            UNDER N.J.S.A. 2C:40-26 CONSTITUTES CRUEL
            AND UNUSUAL PUNISHMENT IN VIOLATION OF
            THE EIGHTH AMENDMENT AND THE NEW
            JERSEY CONSTITUTION.



                                                                         A-5041-16T2
                                        4
            III. THE MANDATORY SIX-MONTH SENTENCE
            UNDER     N.J.S.A. 2C:40-26   IS   BOTH
            FUNDAMENTALLY          UNFAIR       AND
            DISCRIMINATORY IN VIOLATION OF EQUAL
            PROTECTION AND THE FUNDAMENTAL RIGHT
            TO LIBERTY ENSHRINED IN THE DUE PROCESS
            CLAUSE.

We address these arguments in the order presented.

      A. Lack of Judicial Discretion

      Defendant contends that the Legislature did not intend to eliminate a

judge's discretion to sentence a violator of N.J.S.A. 2C:40-26 to a jail term of

less than the 180-days in order to avoid an unjust result. He references remarks

during the statute's floor debate by one State Assemblyperson, who avowed:

            A judge will always have the discretion. They can
            dismiss for any reason, but technically, and I'll tell you,
            there are municipal judges in this state, who are
            unreasonable. And there's municipal prosecutors who
            are unreasonable. And you walk in with somebody with
            a reasonable story . . . and you know what [they will]
            say, well guess what, there's no exception to the law.

            [Hearing on A4303 Before the Assemb. Comm. On
            Law and Public Safety, 2009 Leg., 213th Sess., Audio
            Recording 1:36:10 (Dec. 3, 2009) (statement of
            RepresentativeBramnick)
            ttps://www.njleg.state.nj.us/media/mp.asp?M=A/2009/
            ALP/1203-0200PM-M0-1.M4A&S=2008]

Because no one in the Legislature made any comment dismissing these remarks,

defendant maintains that the Assembly Committee on Law and Public Safety

                                                                          A-5041-16T2
                                        5
had a "shared understanding" that the statute would "preserve[] judicial

discretion" at sentencing.     Defendant thus surmises the statute as written

misconstrued the Legislature's intention to provide a sentencing judge with

discretion to give a defendant less than a 180-day jail term, and has continuously

induced this court to incorrectly uphold the penalty of a fixed minimum term.

We conclude this argument is unconvincing, as it flies in the face of our well-

settled rules of statutory interpretation.

      In determining the interpretation of a statute, our review is de novo. State

v. Frank, 445 N.J. Super. 98, 105 (App. Div. 2016). It is well settled that a

primary purpose of "statutory interpretation is to determine and 'effectuate the

Legislature's intent.'" State v. Rivastineo, 447 N.J. Super. 526, 529 (App. Div.

2016) (quoting State v. Shelley, 205 N.J. 320, 323 (2011)). We start with

considering "the plain 'language of the statute, giving the terms used therein

their ordinary and accepted meaning.'" Ibid. And where "the Legislature's

chosen words lead to one clear and unambiguous result, the interpretive process

comes to a close, without the need to consider extrinsic aids." Rivastineo, 447

N.J. Super.at 529. Hence, we do "'not "rewrite a plainly-written enactment of

the Legislature [or] presume that the Legislature intended something other than




                                                                          A-5041-16T2
                                             6
that expressed by way of the plain language."'" Ibid. (quoting Marino v. Marino,

200 N.J. 315, 329 (2009) (alteration in original)).

      Yet, a statute's plain language "should not be read in isolation, but in

relation to other constituent parts so that a sensible meaning may be given to the

whole of the legislative scheme." Wilson ex rel. Manzano v. City of Jersey City,

209 N.J. 558, 572 (2012). "'When all is said and done, the matter of statutory

construction . . . will not justly turn on literalisms, technisms or the so -called

formal rules of interpretation; it will justly turn on the breadth of the objectives

of the legislation and the commonsense of the situation.'"           J.H. v. R&M

Tagliareni, LLC, 454 N.J. Super. 174, 187 (2018) (quoting Jersey City Chapter,

P.O.P.A. v. Jersey City, 55 N.J. 86, 100 (1969)). Simply put, "[a]n absurd result

must be avoided in interpreting a statute." Gallagher v. Irvington, 190 N.J.

Super. 394, 397 (App. Div. 1983).

      With these rules in mind, we are well aware that "when the Legislature

has enacted a mandatory minimum term for the commission of a crime, the

'courts have no power' to impose a sentence that, in length or form, is different

from that plainly provided in the statute." State v. Lopez, 395 N.J. Super. 98,

107-08 (App. Div. 2007) (quoting State v. Des Marets, 92 N.J. 62, 64-65




                                                                            A-5041-16T2
                                         7
(1983)). We still find instructive the words of Chief Justice Wilentz in Des

Marets, that:

            We do not pass on the wisdom of this legislation's
            mandatory . . . imprisonment term or the wisdom of its
            imposition on the offenses covered. That is a matter
            solely for the Legislature to decide.          Once the
            Legislature has made that decision, and has made it
            within constitutional bounds, our sole function is to
            carry it out. Judges have no business imposing their
            views of "enlightened" sentencing on society, including
            notions of discretionary, individualized treatment,
            when the Legislature has so clearly opted for mandatory
            prison terms for all offenders. It may be that the
            Legislature is more enlightened than the judges. Our
            clear obligation is to give full effect to the legislative
            intent, whether we agree or not.

            [92 N.J. at 65-66 (citations omitted).]

      Applying these principles, we conclude the judge appropriately

determined that he was required to impose the mandatory 180-day minimum jail

term under N.J.S.A. 2C:40-26 because of the statute's clear and plain language.

A lone legislator's comment, however well intended and firmly believed, prior

to the statute's enactment does not dictate a contrary interpretation of the

statute's unambiguous language, as suggested by defendant.            See State v.

Rodriguez, 454 N.J. Super. 214, 232 (App. Div. 2018) ("[T]he legislative history

may not create ambiguity that is absent on the face of the statute."). As this court

has consistently held, the statute requires a mandatory minimum incarceration period

                                                                            A-5041-16T2
                                         8
of 180-days to carry out the Legislature's effort to deter the devastating effects of

drunk driving. See Rodriguez, 454 N.J. Super. at 230; State v. Rizzitello, 447 N.J.

Super. 301, 315 (App. Div. 2016); State v. Harris, 439 N.J. Super. 150, 160 (App.

Div. 2015); State v. French, 437 N.J. Super. 333, 335-36, 338 (App. Div. 2014).

Moreover, this court has already interpreted the statute as precluding judicial

discretion. French, 437 N.J. Super. at 338. In the face of these consistent rulings,

the Legislature has chosen not to afford judicial discretion to sentence a violator of

N.J.S.A. 2C:40-26 to less than 180-days in jail.

      B. Constitutional Challenges

      1. Cruel and Unusual Punishment

      In the alternative, defendant argues that N.J.S.A. 2C:40-26 violates

federal and state constitutional prohibitions against cruel and unusual

punishment because its minimum mandatory jail sentence offends contemporary

notions of decency.      He maintains the statute would have been declared

unconstitutional if the judge had considered that other states "impose

substantially less minimum penalties" for the same conduct. We disagree.

      The Eighth Amendment of the United States Constitution prohibits cruel

and unusual punishment and "guarantees individuals the right not to be subjected

to excessive sanctions." Roper v. Simmons, 543 U.S. 551, 560 (2005). The


                                                                              A-5041-16T2
                                          9
Eighth Amendment's provisions are applicable to the states through the

Fourteenth Amendment. Ibid. New Jersey's analog to the Eighth Amendment

similarly declares, "cruel and unusual punishments shall not be inflicted." N.J.

Const. art. I, ¶ 12.2

      The New Jersey Supreme Court has "developed a three-part test for

determining whether a criminal penalty constitutes cruel and unusual

punishment."     State v. Johnson, 166 N.J. 523, 548 (2001) (citing State v.

Maldonado, 137 N.J. 536, 556 (1994)).        "We consider, first, whether the

punishment conforms with contemporary standards of decency; second, whether

the punishment is grossly disproportionate to the offense; and third, whether the

punishment goes beyond what is necessary to accomplish any legitimate

penological objective." Ibid.

      When assessing the constitutionality of a legislatively fixed punishment,

a court must presume validity. State v. Johnson, 206 N.J. Super. 341, 344 (App.

Div. 1985). A court will not interfere with a prescribed penalty "unless it is so

clearly arbitrary and without rational relation to the offense or so

disproportionate to the offense as to transgress the Federal and State



2
  Although defendant contends N.J.S.A. 2C:40-26 violates the Eighth
Amendment, he limits his reliance to New Jersey case law to support his claim.
                                                                         A-5041-16T2
                                      10
constitutional prohibitions against excessive fines or cruel and unusual

punishment." State v. Smith, 58 N.J. 202, 211 (1971); accord, Johnson, 206 N.J.

Super. at 344. In the absence of such a showing, "the judiciary must respect the

legislative will." State v. Hampton, 61 N.J. 250, 274 (1972).

      Guided by these principles, we conclude defendant's argument that the

mandatory minimum jail term under N.J.S.A. 2C:40-26 constitutes cruel and

unusual punishment is without merit. The statute's purpose is to ensure the

safety of the public and ensure that individuals whose licenses were suspended

due to a DWI conviction do not continue to drive during their suspension,

because their history of DWI creates a potential significant threat to public

safety. See Rizzitello, 447 N.J. Super. at 315; Harris, 439 N.J. Super. at 160.

Such a penalty is consistent with our state's contemporary standards of decency,

is not grossly disproportionate to the crime, and accomplishes the legitimate

goal of protecting society from drunk drivers.

      We are equally unpersuaded by defendant's argument that because other

states may not impose a similar penalty for the same conduct, our Legislature

has imposed a penalty that reflects cruel and unusual punishment. That said, we

note that most of the states cited by defendant impose harsher penalties of up to

two years imprisonment, albeit with mandatory minimums of at least three


                                                                         A-5041-16T2
                                      11
months, for the same or similar offense.3 Since N.J.S.A. 2C:40-26 is a fourth-

degree offense, a violation can result in a sentence of up to eighteen months, but

the Legislature decided there be at least a 180-day period of incarceration.

N.J.S.A. 2C:43-6(a)(4). In this regard, our statute is unexceptional and may

result in a lighter sentence.

      2. Equal Protection

      Defendant contends that his constitutional right to equal protection and

due process was violated because N.J.S.A. 2C:40-26 treats subsequent DWI

offenders who drive while their licenses are suspended differently than

individuals whose licenses are suspended for other reasons. He points out that

the statute imposes a mandatory 180-day jail term that is eighteen times greater

than the ten days imposed for driving while suspended under N.J.S.A. 39:3-40.

Therefore, he asserts that because of his right to be free from confinement, the

judge should have applied a strict scrutiny review of the statute "before




3
  For example, Kansas requires a minimum sentence of ninety-days, K.S.A. 8-
262; Delaware imposes a sixty-day minimum sentence with a maximum of one
year and a minimum $1,000 fine, 21 Del.C. § 2756; Colorado imposes a thirty-
day minimum sentence with a minimum $500 fine, Colo. Rev. Stat. Ann. § 42-
2-138(1)(d)(I); Hawaii imposes a mandatory sentence of thirty-days
imprisonment, Haw. Rev. Stat. § 291E-62.
                                                                          A-5041-16T2
                                       12
imposition of an unjust and disproportionate mandatory sentence that ignores

[his] mitigating circumstances." We disagree.

      "'The Equal Protection Clause of the Fourteenth Amendment commands

that no State shall "deny to any person within its jurisdiction the equal protection

of the laws," which is essentially a direction that all persons similarly situated

should be treated alike.'" Doe v. Poritz, 142 N.J. 1, 91 (1995) (quoting City of

Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439, (1985)). "Equal

protection does not preclude the use of classifications, but requires only that

those classifications not be arbitrary."     Ibid. (citation omitted).   Under the

Fourteenth Amendment, if a statute neither treats a suspect or quasi-suspect

class disparately nor affects a fundamental right, then it will be upheld so long

as it is "rationally related to a legitimate government interest." Doe, 142 N.J. at

92 (citations omitted).

      An equal protection challenge to a legislative classification of offenders

for purposes of fixing penalties is examined by utilizing the rational basis test.

State v. Lagares, 127 N.J. 20, 34 (1992). "In such situations, the Legislature

may provide different punishments for offenders convicted of the same crimes

so long as there is some rational connection between the classification of

offenders and a proper legislative purpose." Ibid. In enacting our Criminal


                                                                            A-5041-16T2
                                        13
Code, the Legislature "has wide discretion in the creation or recognition of

different classes of offenders for separate treatment[,]" State v. Smith, 58 N.J.

202, 207 (1971), and its enactments are entitled to a presumption of validity. In

re P.L. 2001, Chapter 362, 186 N.J. 368, 392 (2006); Gangemi v. Berry, 25 N.J.

1, 10 (1957).

      In light of the societal harm inflicted by drunk driving, the Legislature

decided to deter those who chose to disregard the suspension of their driving

privileges due to drunk driving by imposing a minimum mandatory jail term.

Hence, providing a rational basis for the distinction drawn by the Legislature in

terms of individuals driving while suspended due to non-drunk driving

violations. We agree with the trial judge that the statute is presumed valid and

that defendant has not established that "it doesn't accomplish any legitimate

stated purpose." Therefore, we are convinced there is no merit in defendant's

equal protection challenge.

      3. Due Process

      For the first time, defendant argues on appeal that N.J.S.A. 2C:40-26

violates the principle of fundamental unfairness under the due process clause of

the Fourteenth Amendment because it is "an eighteen-fold increase in

sentence[ing] for having two or more previous DWI's or license suspension


                                                                         A-5041-16T2
                                      14
violations . . . " and "there is no limitation on how far back in [his] driving

history one can look to satisfy the prior offenses[.]" Normally, we would not

consider issues, even constitutional ones, which were not raised before the trial

judge. State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006) (citations

omitted).   For the sake of completeness, however, we choose to address

defendant's due process claim.

      The fundamental fairness doctrine derives from an implied judicial

authority to create appropriate and just remedies and to assure the efficient

administration of the criminal justice system. State v. Abbati, 99 N.J. 418, 427

(1985). The Supreme Court has described this doctrine as "an integral part of

due process" that "is often extrapolated from or implied in other constit utional

guarantees." State v. Miller, 216 N.J. 40, 71 (2013) (quoting Oberhand v. Dir.,

Div. of Taxation, 193 N.J. 558, 578 (2008)); see also Abbati, 99 N.J. at 429.

      The doctrine is applied "sparingly" and only where the "interests involved

are especially compelling[;]" thus, if a defendant would be subject "to

oppression, harassment, or egregious deprivation[,]" it is applied. Doe, 142 N.J.

at 108 (quoting State v. Yoskowitz, 116 N.J. 679, 712 (1989) (Garibaldi, J.,

concurring and dissenting)). It can be applied "at various stages of the criminal

justice process even when such procedures were not constitutionally


                                                                         A-5041-16T2
                                      15
compelled." Ibid. (citations omitted). The doctrine's "primary considerations

should be fairness and fulfillment of reasonable expectations in the light of the

constitutional and common law goals." Yoskowitz, 116 N.J. at 706 (emphasis

omitted) (quoting State v. Currie, 41 N.J. 531, 539 (1964)).

      The doctrine is an "elusive concept" and its "exact boundaries are

undefinable." Id. at 704-05 (citation omitted). "For the most part, it has been

employed when the scope of a particular constitutional protection has not been

extended to protect a defendant." Id. at 705. It has been applied only in the

clearest of cases. See State v. Maisonet, 166 N.J. 9, 13-21 (2001) (defendant

was forced to appear for a jury trial over several days in a dirty and disheveled

condition having been denied access to soap, running water, toothpaste or a

comb); Doe, 142 N.J. at 108-09, 662 (the doctrine of fundamental fairness

required the institution of procedural protections to determine classification of

convicted sex offenders who would be subject to community supervision and

notification provisions); State v. Tropea, 78 N.J. 309, 311-16, 394 (1978)

(fundamental fairness precluded remand for retrial when the State failed to

introduce evidence of an essential element of proof); State v. Baker, 310 N.J.

Super. 128, 138 (App. Div. 1998) (fundamental fairness precluded the State

from seeking death penalty based on deliberate prosecutorial misconduct in


                                                                         A-5041-16T2
                                      16
seizing juror notes and releasing them to the press after conviction but befor e

penalty phase had commenced).

         Defendant's argument fails to establish the type of unquestionably unfair

circumstances that have garnered past judicial support for application of the

doctrine of fundamental fairness. Comparing the Legislature's imposition of a

fixed minimum sentence for individuals who have two or more violations of

driving while their license is suspended for drunk driving, while it has allowed

far more leniency for offenses that have caused a suspension of driving

privileges, is of no import. Of significance, this court has consistently upheld

the statute's mandatory minimum 180-day jail term and defendant was on notice

upon his convictions for DWI that subsequent violations of driving while

suspended for DWI would result in such a penalty.

         Affirmed. The stay of defendant's jail sentence shall expire effective

thirty days from the date of this opinion and will not be extended further by this

court.




                                                                          A-5041-16T2
                                        17
