                                NOT FOR PUBLICATION WITHOUT THE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-2376-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRIAN W. SESSA,

     Defendant-Appellant.
________________________

                    Submitted March 7, 2019 – Decided April 5, 2019

                    Before Judges Simonelli and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Cape May County, Indictment No. 17-09-
                    0615.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Brian P. Keenan, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Jeffrey H. Sutherland, Cape May County Prosecutor,
                    attorney for respondent (Gretchen A. Pickering,
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Brian W. Sessa appeals from his first conviction for driving

while intoxicated (DWI), N.J.S.A. 39:4-50(a)(1). On appeal, defendant raises

the following contention:

            DEFENDANT’S       SUBSEQUENT      DWI
            [PROSECUTION] WAS BARRED BY DOUBLE
            JEOPARDY AND FUNDAMENTAL FAIRNESS
            AFTER HE PLEADED GUILTY TO ASSAULT BY
            AUTO ARISING FROM THE SAME INCIDENT.
            (NOT RAISED BELOW).

We reject this contention and affirm.

      On July 21, 2017, after ingesting heroin and prescribed drugs, defendant

drove a motor vehicle and struck another vehicle, injuring the driver. The police

found heroin in the purse of defendant's passenger and arrested defendant and

charged him with DWI and several other motor vehicle offenses. The Cape May

County Prosecutor charged defendant in Accusation No. 17-09-0615 with

fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2).

      The DWI and other motor vehicle charges were joined with the assault by

auto charge for trial in the Superior Court. Defendant decided to proceed by

way of Accusation and agreed to enter an unconditional guilty plea to the assault

by auto and DWI charges. In exchange, the State agreed to recommend a

fourteen-month term of imprisonment and to dismiss all other related disorderly

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                                        2
persons and motor vehicle charges, except the DWI charge. The State also

agreed not to pursue any drug-related charges even though the police found

heroin in defendant's vehicle.

      At the plea hearing on the assault by auto charge, defense counsel placed

the plea agreement on the record and confirmed that defendant would plead

guilty to DWI at sentencing. Defendant testified that he signed the plea forms

and initialed each page, reviewed each question with defense counsel,

understood each question, answered each question truthfully, and was satisfied

with the plea agreement. Question thirteen confirmed that defendant would

plead guilty to DWI at sentencing. In addition, defendant testified under oath

that he would plead guilty to DWI at sentencing. Defendant gave a factual basis

that satisfied the elements of N.J.S.A. 2C:12-1(c)(2) ̶ that he drove a motor

vehicle after ingesting heroin, in violation of N.J.S.A. 39:4-50, and caused

bodily injury to the victim by driving the vehicle recklessly.

      At sentencing, defendant pled guilty to DWI and testified that he operated

a motor vehicle while under the influence of an intoxicating substance and had

no defense. The court sentenced him as a first offender to a mandatory minimum

seven-month license suspension and imposed the applicable fees and penalties.




                                                                        A-2376-17T4
                                        3
The court then sentenced defendant on the assault by auto charge to a fourteen -

month term of imprisonment in accordance with the plea agreement.

      Defendant argues for the first time on appeal that because his convictions

for DWI and assault by auto arose from the same incident, his DWI conviction,

which occurred after he pled guilty to assault by auto, violated the Double

Jeopardy Clause and the principles of fundamental fairness.

      Generally, we decline to consider issues not raised before the trial court,

even constitutional issues, unless they are jurisdictional in nature or

substantially implicate the public interest. State v. Galicia, 210 N.J. 364, 383

(2012); Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2

(2019).   Neither exception is satisfied here.     In addition, "[g]enerally, a

defendant who pleads guilty is prohibited from raising, on appeal, the contention

that the State violated his constitutional rights prior to the plea." State v.

Crawley, 149 N.J. 310, 316 (1997). Further, "the failure to enter a conditional

plea under [Rule 3:9-3(f)] bars appellate review of issues other than search and

seizure and denials of entry into a pretrial intervention program." Pressler &

Verniero, Current N.J. Court Rules, cmt. 7 on R. 3:9-3(f) (2019). Nevertheless,

we address defendant's argument for the sake of completeness.




                                                                         A-2376-17T4
                                       4
      To determine what constitutes the "same offense" for purposes of double

jeopardy, we apply the "same elements" test articulated by the United States

Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932). State v.

Miles, 229 N.J. 83, 86, 96 (2017). The Double Jeopardy Clause protects against:

"(1) 'a second prosecution for the same offense after acquittal,' (2) 'a second

prosecution for the same offense after conviction,' and (3) 'multiple punishments

for the same offense.'" Id. at 92 (quoting North Carolina v. Pearce, 395 U.S.

711, 717 (1969)). "Common to all three protections is the concept of 'same

offense.' Accordingly, a prime concern when reviewing a double-jeopardy

claim is 'whether the second prosecution is for the same offense involved in the

first.'" Id. at 92-93 (quoting State v. Yoskowitz, 116 N.J. 679, 689 (1989)).

      "[W]here the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which

the other does not." Id. at 93 (quoting Blockburger, 284 U.S. at 304). "In other

words, if each statute at issue requires proof of an element that the other does

not, they do not constitute the same offense and a second prosecution may

proceed." Ibid. (quoting Blockburger, 284 U.S. at 304).




                                                                          A-2376-17T4
                                        5
      Here, the two charges were joined for trial in the Superior Court and both

charges were disposed of in a single plea agreement that addressed both the

indictable assault by auto offense and the DWI offense. Thus, there was no

second prosecution for double jeopardy purposes. See State v. Williams, 172

N.J. 361, 368 (2002) ("If the offenses are not joined, the omitted offense may

not be further prosecuted"); see also Pressler & Verniero, Current N.J. Court

Rules, cmt. 2 on R. 3:15-1 (2019).

      Even if there was a second prosecution for the DWI offense, it was proper.

A person commits fourth degree assault by auto if he: (1) operated a motor

vehicle; (2) operated a motor vehicle while under the influence of intoxicating

liquor, narcotic, hallucinogenic or habit-producing drug, in violation of N.J.S.A.

39:4-50; and (3) caused bodily injury to the victim by operating the motor

vehicle recklessly.   N.J.S.A. 2C:12-1(c)(2); see also Model Jury Charges

(Criminal), "Assault By Auto or Vessel (Bodily Injury, With Drunk Driving Or

Refusal) (N.J.S.A. 2C:12-1c)" (2004). A person violates N.J.S.A. 39:4-50(a)(1)

if he operated a motor vehicle while under the influence of intoxicating liquor,

narcotic, hallucinogenic or habit-producing drug.

      Fourth-degree assault by auto requires specific proof of bodily injury to

the victim and reckless operation of a motor vehicle and DWI does not.


                                                                          A-2376-17T4
                                        6
Applying the Blockburger "same elements" test, the result is clear. These

offenses were different offenses, and the subsequent DWI prosecution did not

violate the Double Jeopardy Clause.

      Nor did the subsequent DWI prosecution violate the doctrine of

fundamental fairness. The doctrine of fundamental fairness in the context of

double-jeopardy and mandatory-joinder cases is derived from the policy

interests underlying those doctrines. Yoskowitz, 116 N.J. at 706. "The primary

considerations should be fairness and fulfillment of reasonable expectations in

the light of the constitutional and common law goals." Ibid. (quoting State v.

Currie, 41 N.J. 531, 539 (1964)).

      "The doctrine of fundamental fairness 'is an integral part of due process,

and is often extrapolated from or implied in other constitutional guarantees.'"

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

Taxation, 193 N.J. 558, 578 (2008)). "The doctrine effectuates imperatives that

government minimize arbitrary action, and is often employed when narrowed

constitutional standards fall short of protecting individual defendants against

unjustified harassment, anxiety, or expense." Ibid. (quoting Doe v. Poritz, 142

N.J. 1, 109 (1995)). "'Fundamental fairness is a doctrine to be sparingly applied.'

The doctrine is 'applied in those rare cases where not to do so will subject the


                                                                           A-2376-17T4
                                        7
defendant to oppression, harassment, or egregious deprivation.'" Id. 171-72

(citations omitted) (quoting Doe, 142 N.J. at 108).

      This is not the "rare" case where the doctrine of fundamental fairness

mandates reversal of the defendant's DWI conviction.        Defendant was not

oppressed, harassed, or deprived of his reasonable expectations. The record

does not support his disingenuous claim that he reasonably expected his guilty

plea to DWI was related to the assault by auto crime and he would not be subject

to a separate prosecution and punishment for the DWI offense. Rather, the

record confirms that defendant's reasonable expectation was to plead guilty to

DWI at sentencing and for the court to impose the sentence in the negotiated

plea. The DWI conviction mandated the imposition of the DWI minimum

statutory penalties because they survived merger of the two offenses for

sentence. See State v. Baumann, 340 N.J. Super. 553, 557 (App. Div. 2001).

Accordingly, defendant's DWI conviction did not violate the principles of

fundamental fairness.

      Affirmed.




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