                        NOT FOR PUBLICATION WITHOUT THE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-0923-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

THOMAS BURNS a/k/a THOMAS M.
BURNS, and TOM BURNS,

     Defendant-Appellant.
_______________________________

              Telephonically argued May 23, 2017 –
              Decided June 12, 2017

              Before Judges Nugent and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Cape May County, Indictment No.
              14-10-878.

              A. Harold        Kokes    argued     the    cause    for
              appellant.

              Gretchen A. Pickering, Assistant Prosecutor,
              argued the cause for respondent (Robert L.
              Taylor, Cape May County Prosecutor, attorney;
              Ms. Pickering, of counsel and on the brief).

PER CURIAM

        Defendant     Thomas   Burns    appeals    from    his    conviction       for

violating N.J.S.A. 2C:40-26(b) by driving during a second or
subsequent license suspension for driving while intoxicated (DWI).

We affirm.

     Defendant is a Pennsylvania resident whose driver's license

was issued by the Commonwealth of Pennsylvania.   On June 5, 2014,

defendant was stopped by police while driving his vehicle in Ocean

City and issued summonses for driving with a suspended license in

violation of N.J.S.A. 39:3-40, and driving without an interlock

device in violation of N.J.S.A. 39:4-50.19.

     On July 31, 2014, the police discovered that defendant's

driving privileges in New Jersey were suspended for ten years due

to driving while intoxicated (DWI) contrary to N.J.S.A. 39:4-50.

The police also learned defendant had multiple prior convictions

and license suspensions for driving under the influence of alcohol

(DUI) in Pennsylvania.   As a result, defendant was charged with

violating N.J.S.A. 2C:40-26(b).

     Defendant was indicted by a Cape May County Grand Jury for

fourth-degree criminal trespass in violation of N.J.S.A. 2C:18-

3(a) (count one), and fourth-degree operating a motor vehicle

during a second or subsequent suspension stemming from a DWI, in

violation of N.J.S.A. 2C:40-26(b) (count two).    Defendant moved

to dismiss count two of the indictment, arguing that his prior DUI

convictions in Pennsylvania did not qualify as predicate DWI



                                  2                        A-0923-15T3
convictions under N.J.S.A. 2C:40-26(b). Judge John C. Porto denied

the motion on March 13, 2015.

      On June 19, 2015, defendant entered a conditional plea of

guilty to fourth-degree operating a motor vehicle during a second

or subsequent suspension resulting from a DWI, in violation of

N.J.S.A. 2C:40-26(b), in exchange for a sentencing recommendation

of   the   mandatory      minimum     180-day    jail    term   without   parole,

applicable      fines    and   penalties,    and   dismissal     of   count     one.

Defendant also preserved his right to appeal the denial of his

motion to dismiss.         Defendant stipulates that on June 5, 2014 he

was driving a motor vehicle while under suspension for a DWI in

New Jersey and multiple DUI convictions in Pennsylvania.

      On September 18, 2015, Judge Porto sentenced defendant to the

mandatory 180 days in jail with no eligibility for parole, and

ordered    to   pay     appropriate    fines    and     penalties.    The     judge

dismissed the fourth-degree criminal trespass count pursuant to

the terms of the plea agreement.                The judge also dismissed the

motor vehicle summonses without prejudice.               Defendant was released

on bail pending this appeal.

      On appeal, defendant raises the following arguments:

            POINT ONE

            ACCORDING TO THE STATE'S PROOF, APPELLANT HAD
            ONLY ONE (1) N.J.S.A. 39:4-50 CONVICTION ON


                                         3                                  A-0923-15T3
          THE DAY HE OPERATED A MOTOR VEHICLE IN OCEAN
          CITY, CAPE MAY COUNTY, NEW JERSEY.

          POINT TWO

          THE TRANSCRIPT OF THE GRAND JURY PROCEEDINGS
          REVEALS THAT THE EVIDENCE PRESENTED TO THE
          GRAND JURY WAS LEGALLY INSUFFICENT AND
          INCORRECT.

          POINT THREE

          THE TRIAL COURT ERRED BY DENYING APPELLANT'S
          MOTION   TO   DISMISS BASED   ON   A   STRICT
          CONSTRUCTION AND PLAIN READING OF N.J.S.A.
          2C:40-26(b). FURTHER, APPELLANT HAD NO NOTICE
          THAT HE WOULD BE LIABLE FOR A FOURTH (4TH)
          DEGREE CRIME.

     "When an appellate court reviews a trial court's analysis of

a legal issue, it does not owe any special deference to the trial

court's legal interpretation."        State v. Schubert, 212 N.J. 295,

303-04 (2012).     "'[A]ppellate review of legal determinations is

plenary.'"   Id. at 304 (quoting State v. Handy, 206 N.J. 39, 45

(2011).   The issues presented are legal in nature, and thus our

review is plenary.

     Defendant argues that his motion to dismiss the indictment

should have been granted because N.J.S.A. 2C:40-26(b) does not

reference license suspensions from foreign jurisdictions and,

therefore,   the   statute   should   be   interpreted   to   require   the

previous license suspensions to be for convictions of N.J.S.A.

39:40-50, rather than another state's substantially similar DWI


                                      4                            A-0923-15T3
statute.   Defendant further argues that the evidence provided to

the Grand Jury was "legally insufficient and incorrect."

     Our   Supreme   Court   "has       recognized   the   grand    jury's

independence and has expressed a reluctance to intervene in the

indictment process."   State v. Hogan, 144 N.J. 216, 228 (1996).

"Whether an indictment should be dismissed or quashed lies within

the discretion of the trial court.        Such discretion should not be

exercised except on 'the clearest and plainest ground' and an

indictment should stand 'unless it is palpably defective.'"          State

v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984) (quoting State

v. Weleck, 10 N.J. 355, 364 (1952)).         "A trial court's exercise

of this discretionary power will not be disturbed on appeal 'unless

it has been clearly abused.'"   State v. Warmbrun, 277 N.J. Super.

51, 60, (App. Div. 1994) (quoting Weleck, supra, 10 N.J. at 364

(citations omitted)), certif. denied, 140 N.J. 277 (1995).           Here,

Judge Porto held as a matter of law that the indictment did not

suffer from an infirmity requiring its dismissal.          We agree.

     N.J.S.A. 2C:40-26(b) states in pertinent part:

           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]. . . . A
           person convicted of an offense under this
           subsection shall be sentenced to a term of
           imprisonment.

                                    5                              A-0923-15T3
      In State v. Luzhak, 445 N.J. Super. 241, 244 (App. Div. 2016),

we noted that "N.J.S.A. 2C:40-26(b) does not contain language that

DWI convictions in other jurisdictions qualify as convictions for

the purpose of the statute."      Nonetheless, we determined that the

Legislature's intent as evidenced by the language of the statute,

the policy behind it, and legislative history was to include DWI

convictions from foreign jurisdictions as predicate offenses under

N.J.S.A.   2C:40-26(b).      There,   the    "defendant   was   subject     to

indictment pursuant to N.J.S.A. 2C:40-26(b) based upon two prior

DWI   convictions,    notwithstanding     that   one   conviction    was    in

Maryland."    Id. at 247-48.     We reached that conclusion based on

our holding that the "defendant's conviction in Maryland qualified

as a DWI in New Jersey." Id. at 248. We also adopted the rationale

that "enhanced penalties pursuant to N.J.S.A. 39:4-50 or N.J.S.A.

39:3-40 may be triggered by a DWI conviction from another state."

Ibid.

      The same reasoning applies with equal force in this matter.

We hold that defendant's prior DUI convictions in Pennsylvania

qualify as predicate DWI convictions in New Jersey within the

meaning of N.J.S.A. 2C:40-26(b).

      We   next   address   defendant's     argument   that   the   evidence

presented to the Grand Jury was legally insufficient and incorrect.


                                      6                              A-0923-15T3
Defendant claims that the State misinformed the Grand Jury by

stating that defendant "knowingly did operate a motor vehicle

during a period of license suspension in violation of R.S. 39:3-

40, while his license was suspended for a second or subsequent

violation of R.S. 39:4-50, contrary to the provisions of N.J.S.A.

2C:40-26(b)."   We disagree.   The quoted language merely recited

the offense alleged in count two.   The factual basis for count two

was provided by the following testimony of Sergeant John Mazzuca:

          Q:   While    you   were    conducting   that
          investigation, did you also ask the Defendant
          for his driver's credentials?

          A: Yes, I did.

          Q: Did he advise you or did you learn at that
          time that he was a suspended driver?

          A: I did.

          Q: And did you learn that he was suspended
          because he had a DUI?

          A: Yes.

          Q: And that is a violation of 39:4-50.

          A: That's correct.

          Q: He had one as recently as 2014.

          A: Yes.

          Q:   Did   you   then    conduct   a   further
          investigation and find that on at least two
          to three occasions previous to 2014, as
          recently as 2006, he had been convicted in the


                                7                           A-0923-15T3
           State of Pennsylvania for driving while under
           the influence?

           A: Yes, he was.

     Sergeant Mazzuca's testimony did not misinform or mislead the

grand jurors.   The evidence presented was not legally insufficient

or incorrect.     In any event, defendant does not deny that he was

operating a motor vehicle while his license was suspended or

revoked for a violation of N.J.S.A. 39:40-50 and a second or

subsequent violation of Pennsylvania's DUI statute.       Nor does he

argue prosecutorial misconduct during the grand jury presentment.

     Indictments are presumed valid.     State v. Schenkolewski, 301

N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77

(1997).   "As long as an indictment alleges all the essential facts

of the crime, the charge is deemed sufficiently stated."           Ibid.

"[T]he indictment should not be dismissed unless its insufficiency

is 'palpable.'"    N.J. Trade Ass'n, supra, 96 N.J. at 19.   Applying

these principles, we find that the evidence before the grand jury

presented a prima facie case of operating a motor vehicle while

suspended or revoked for a second or subsequent DWI violation.

The evidence was not "legally insufficient" or "incorrect."

     Finally, we address defendant's argument that he should not

be convicted of violating N.J.S.A. 2C:40-26(b) because he had no

actual    or   constructive   notice   that   his   Pennsylvania     DUI


                                  8                           A-0923-15T3
convictions   would    serve   as    predicate    offenses   under   N.J.S.A.

2C:40-26(b), thereby subjecting him to conviction of a fourth-

degree crime.    We disagree.

     The Driver License Compact (DLC), N.J.S.A. 39:5D-1 to -14,

includes reciprocity for DWI convictions.          Luzhak, supra, 445 N.J.

Super. at 246.    Pennsylvania is a party state to the DLC.              Scott

v. DOT, 567 Pa. 631, 633, 790 A.2d 291 (2002).            Pennsylvania's DUI

statute mirrors Article IV(a)(2) of the DLC, "which proscribes

driving under the influence of alcohol or drugs to a degree that

renders the driver 'incapable of safely driving a motor vehicle.'"

Id. at 637-38.        A conviction under N.J.S.A. 39:4-50 is of a

"substantially similar nature" to the DLC's requirement that a

driver be "incapable of safely driving a motor vehicle."              See id.

at 643-44; N.J.S.A. 39:5D-1(b), art. IV(a)(2), (c).               The elements

of Pennsylvania's DUI statute, 75 Pa.C.S. § 3802 ("incapable of

safely driving"), are also of a "substantially similar nature" to

Article IV(a)(2) of the DLC ("incapable of driving safely") because

both provisions focus upon individuals who are incapable of driving

safely.   Scott,      supra,   567    Pa.   at   638    (citing   Petrovik    v.

Commonwealth, Dep't of Transp., 559 Pa. 614, 621, 741 A.2d 1264,

1268 (1999) (analyzing predecessor DUI statute, 75 Pa.C.S. §

3731(a)(1))).      Moreover,    the    elements    of    Pennsylvania's      DUI



                                       9                               A-0923-15T3
statute, 75 Pa.C.S. § 3802, are substantially similar to N.J.S.A.

39:4-50(a).

    We further note that repeat offenders have no constitutional

right to written or oral notice of enhanced potential sentences

in the future.   State v. Zeikel, 423 N.J. Super. 34, 43-44 (App.

Div. 2011); State v. Nicolai, 287 N.J. Super. 528, 532 (App. Div.

1996).   Applying these principles, we hold that defendant's due

process rights were not violated.

    Judge Porto properly denied defendant's motion to dismiss the

indictment.

    Affirmed.




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