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N.J.S.A. 2C:12-1c(3)(a) (assault by auto in a school zone), driving while intoxicated, N.J.S.A. 39:4-50 (DWI), and driving while his privileges were suspended, N.J.S.A. 39:3-40 (DWS). His timely motion to withdraw his guilty plea was denied and he now appeals. We affirm defendant's convictions for assault by auto in a school zone and DWI, and remand for a hearing regarding defendant's motion to withdraw his guilty plea to DWS. "> Original

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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4937-07T44937-07T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. BARRINGTON MCDONALD, Defendant-Appellant. ________________________________________________________________

Submitted January 13, 2010 - Decided Before Judges Axelrad, Sapp-Peterson and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-03-0503. Yvonne Smith Segars, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs). Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM Defendant entered a guilty plea to second-degree assault by auto for driving recklessly while under the influence within 1000 feet of school property which resulted in serious bodily injury, N.J.S.A. 39:4-50 (DWI), and driving while his privileges were suspended, N.J.S.A. 39:3-40 (DWS). His timely motion to withdraw his guilty plea was denied and he now appeals. We affirm defendant's convictions for assault by auto in a school zone and DWI, and remand for a

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hearing regarding defendant's motion to withdraw his guilty plea to DWS. The charges arise from an accident that occurred at approximately 2:00 a.m. on January 14, 2007 in Atlantic City. Defendant was returning from a convenience store to the Claridge Casino on Pacific Avenue, a four lane, lighted road, when he saw Robert Fields standing on the double yellow divider lines. Fields had crossed defendant's lane of traffic and was beginning to walk into the opposite lane of traffic when he backed up into defendant's lane of traffic. Defendant struck Fields, who hit the windshield and was flung more than eighty feet onto the sidewalk on the opposite side of the street. Defendant, a registered nurse, cared for Fields, who suffered a head injury and multiple fractures, until paramedics arrived. Defendant agreed to provide breath and blood samples, which showed a blood alcohol content of .19. Defendant also gave police a statement in which he admitted striking Fields, consuming alcoholic beverages, and that his driver's license was suspended. He was arrested on charges of assault by auto in a school zone, N.J.S.A. 2C:40-22b. Summonses were also issued for DWI; DWS; driving while intoxicated in a school zone, N.J.S.A. 39:4-97. Defendant was indicted on March 6, 2007 on the following charges: second-degree assault by auto in a school zone, N.J.S.A. 2C:40-22b (count two). Defendant entered a guilty plea pursuant to a plea agreement to assault by auto in a school zone, DWI, and DWS. The prosecutor agreed to dismiss the remaining charges against him and to recommend that defendant be sentenced as a third-degree offender with a sentence not to exceed a New Jersey State Prison term of three years. The transcript of May 21, 2007 reflects the following colloquy with respect to defendant's factual basis for his guilty plea to N.J.S.A. 2C:12-1c(3)(a): COURT: All right, Mr. McDonald, the charge is that on January 14th, of this year, in Atlantic City, you drove a vehicle recklessly while driving and more specifically while intoxicated and also within a thousand feet of school property and caused serious bodily injury to Robert Fields; are you guilty of that offense? DEFENDANT: Yes, I am. After additional questioning, the court began to announce its finding that the defendant had knowingly, intelligently and voluntarily waived his rights in entering the plea when the prosecutor interrupted: PROSECUTOR: Judge. Judge. I'm sorry. And, sir, you don't dispute it was within a thousand feet of Our Lady of the Sea School, where the accident occurred? DEFENDANT: I didn't see it, but I might have missed it, okay.

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At defendant's request, his sentence was postponed several times. After receiving a "school zone map" from the State, defense counsel advised the court on August 10, 2007 that "[t]he school zone map . . . shows basically that he is right just within or just on the edge of the sweep of the - the ambit of the school zone" and that "the school zone may include property that is not used for school purposes." Counsel argued that, although defendant "may have voluntarily, knowingly provided a factual basis [for his guilty plea], it may be supported by a fact which turns out to be incorrect[.]" Sentencing was delayed again to permit counsel to discuss this issue further with defendant. On August 31, 2007, defense counsel asked for another continuance so that a surveyor could be retained to determine whether the prohibited conduct occurred within 1000 feet of school property. The issue to be raised in the motion was described as "that the Our Lady Star of the Sea property is not included in the school zone property. In other words, they should . . . have measured from the school, not the edge of the church property, when they designed or when they put together the school zone map." Defense counsel agreed with this description and also added that defendant's location at the time of the accident might be beyond the school zone even as defined on the school zone map. The court granted the request for a continuance, set a deadline for the filing of a motion to withdraw defendant's guilty plea, and gave counsel a briefing schedule. Defendant's motion to withdraw his guilty plea relied upon defendant's certification, the transcript of his guilty plea and the argument of counsel. In his certification, defendant contended that he lacked sufficient knowledge at the time of his plea to provide a factual basis for committing the prohibited conduct within a school zone because he "did not know whether or not the school zone radiating from Our Lady Star of the Sea Regional School . . . swept across or included the exact accident scene[.]" He stated further that he became aware that he had "improvidently and unknowingly" entered a guilty plea when he received a survey prepared on his behalf that showed that it was the rectory and front garden area that was within a 1000 foot radius of the accident scene. Defendant did not contend that Our Lady Star of the Sea Regional School was not a "school" within the ambit of 198 N.J. 145 (2009), the Supreme Court held that "trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 157-58. Slater was not decided when the trial court ruled on defendant's motion to withdraw his plea. However, the record permits us to employ the Slater analysis here. We can easily dispose of the third and fourth factors. Neither party has identified any unfair prejudice to the State or unfair advantage to defendant that would result from granting defendant's motion, and, given defendant's blood
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alcohol content, his admissions and the immutable facts of the accident, a trial of this matter would be relatively straightforward. Although defendant pled guilty pursuant to a plea bargain, "the vast majority of criminal cases are resolved through plea bargains" and, therefore, we do not give this factor "great weight in the balancing process." Id. at 161. In this case, the first and second factors are intertwined. Defendant's stated reason for withdrawal is the lack of a factual basis for one element of the offense - whether the prohibited conduct occurred within 1000 feet of school property. He argues that his own statements were insufficient at the time of the plea. He also argues that the accident did not occur within the school zone, based upon a legal argument that the accident occurred within 1000 feet of the school property but more than 1000 feet from the school. Therefore, an evaluation of the strength of defendant's reasons depends in large measure upon a determination whether his legal argument presents a colorable claim of innocence. "The clearest indication of a statute's meaning is its plain language." G.S. v. Dep't of Human Servs., 157 N.J. 161, 172 (1999). There is a strong presumption "'that the legislative purpose is expressed by the ordinary meaning of the words used.'" Ardestani v. INS, 502 U.S. 129, 136, 112 S. Ct. 515, 520, 116 L. Ed.2d 496, 505 (1991) (internal citations omitted). Therefore, we turn first to the plain language of the statute, giving "words their ordinary meaning absent any direction from the Legislature to the contrary. If the plain language leads to a clear and unambiguous result, then [the] interpretive process is over." In re Tenure Hearing of Young, 202 N.J. 50, 63 (2010). Because identical language is used to define "school zone" in both the assault by auto "school zone" statute and in the drug "school zone" statute, N.J.S.A. 2C:35-7, our review is also properly informed by cases that have interpreted the scope and application of the school zone in drug cases. See State v. Trotman, 366 N.J. Super. 226, 236 (App. Div. 2004) (applying the language and case law from N.J.S.A. 26:35-7 to identical language in N.J.S.A. 2C:35-7, the narcotics school zone statute, N.J.S.A. 2C:35-7, the Supreme Court observed that the issue is not whether defendant knew that the building was used for school purposes but whether "an objectively reasonable person could know that the school property was used regularly, consistently, and actually for school purposes." State v. Ivory, 124 N.J. 582, 591-92 (1991). Therefore, although the location of the prohibited conduct within the school zone was an element of the offense, defendant's knowledge that he was within the school zone was not an element of the offense to which he pled guilty. Under the circumstances, defendant's admission of guilt to the charge, his acquiescence in failing to dispute that the conduct was within 1000 feet of school property, and his acknowledgement that he might have missed the school's presence provided a sufficient basis for the court to "satisfy itself . . . that an adequate factual basis exists for the plea." State ex rel. T.M., 166 N.J. 319, 326 (2001). See R.

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3:9-2. We next consider defendant's argument that the school provision does not apply because the school zone should be measured from the school, rather than boundaries of the property. Our Lady of the Sea School is situated on property that includes a church, a rectory, a convent and garden areas. Defendant argues that because the accident did not occur within 1000 feet of the school, the prohibited conduct did not occur within 1000 feet of property used for school purposes. The plain language of 132 N.J. 247, 253-54 (1993) (discussing the purpose of 9 Crim. J.Q. 149, 157 (1987)). See also State v. Lewis, 185 N.J. 363, 370 (2005) (purpose of 360 N.J. Super. 406, 412 (App. Div. 2003) (evidence that a community center was used as a "homework club" for elementary students from 3 p.m. to 5 p.m., in addition to many other uses, was sufficient to allow a jury to find that the facility was operated for school purposes). In summary, to qualify as property used for school purposes under the narcotics school zone, the property need not be used exclusively or even primarily for school purposes; school purposes are not limited to reading, writing and arithmetic activities and, indeed, it is not even necessary that a school be present somewhere on the property for the property to be "used for school purposes." See White, supra, 360 N.J. Super. at 412. The overarching legislative purpose for N.J.S.A. 2C:35-7 as well as N.J.S.A. 39:3-40 was improper. Appellate review of a sentence entails the following determinations: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience. [State v. Megargel, 143 N.J. 484, 493 (1996).] Applying those standards here, we are satisfied that defendant's challenge to the court's identification and weighing of aggravating and mitigating factors lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). In addressing the merger issue, we focus on the "'elements of the crimes and the Legislature's intent in creating them,' and on 'the specific facts of each case.'" State v. Hill, 182 N.J. 532, 542 (2005) (citation omitted). The overall principle guiding merger analysis is that a defendant who has committed one offense "'cannot be punished as if for two.'" Convictions for lesser-included offenses, offenses that are a necessary component of the commission of another offense, or offenses that merely offer an alternative basis for punishing the same criminal conduct will merge.

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[Ibid.] A necessary element of N.J.S.A. 39:4-50, including the license suspension, survive this merger. State v. Wade, 169 N.J. 302 (2001); State v. Baumann, 340 N.J. Super. 553, 556-57 (App. Div. 2001). The transcript of defendant's guilty plea reflects that he was advised that he was subject to a license suspension of up to two years on his conviction for assault by auto in a school zone. As a result, the consecutive ninety-day sentence imposed on the DWI conviction must merge into the sentence imposed on the assault by auto in a school zone conviction and the remaining fines and penalties will be left undisturbed. DWS is a wholly separate offense and does not merge into either conviction. However, flaws in both the guilty plea and sentence require a remand on this charge. Defendant correctly argues that he was not specifically apprised of the statutory penalties that would be imposed upon conviction for DWS or that, pursuant to 168 N.J. 113, 118 (2001) (Stein, Coleman, and Zazzali, J.J., concurring); State v. Howard, 110 N.J. 113, 122 (1988); State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986). See also State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003) ("[A] guilty plea entered without sufficient understanding of the penal consequences is ordinarily invalid."). As a result, this matter must be remanded for a determination as to whether defendant may withdraw his guilty plea to the DWS charge. We also note the following errors in the sentence that must be corrected in the event that defendant's plea is not withdrawn. The sentence imposed on the DWS charge was illegal as the fine of $1000 and the one-year suspension of license exceed the penalties authorized by N.J.S.A. 39:3-40 was improper. Finally, the court should review the criteria established in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.2d 308 (1986) to determine the appropriateness of either a consecutive or concurrent sentence and set forth its reasons for such determination. See State v. Carey, 168 N.J. 413, 424 (2001).

In sum, we affirm defendant's convictions for assault by auto in a school zone and DWI, and remand for further proceedings in light of this opinion as to the DWS conviction. 200 N.J. 1, 19 (2009). Before the trial court, defendant argued that the application of the school zone provision turned on whether the accident occurred within 1000 feet of the school and implicitly conceded that the school fell within the definition used in the statute. Therefore, we will not entertain the argument he raises for the first time on appeal. See id. at 20; State v. Summers, 176 N.J. 306, 316 (2003). In light of our conclusion that the DWI sentence merges into the assault by auto in a school zone conviction and our disposition of this point, it is unnecessary for us to consider whether the sentences imposed violated the terms of the plea agreement. (continued)
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(continued) 22 A-4937-07T4 August 25, 2010 0x01 graphic

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