STATE OF NEW JERSEY VS. EDWARD M. PLAZA (16-09-0623, UNION COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2042-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EDWARD M. PLAZA, a/k/a
EDWARD M. PLAZE, EDDY
ARENAS and ED ARENAS,

          Defendant-Appellant.


                   Argued January 4, 2021 – Decided February 19, 2021

                   Before Judges Currier, Gooden Brown and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 16-09-0623.

                   Laura B. Lasota, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Laura B. Lasota, of counsel
                   and on the brief).

                   Lauren Bonfiglio, Deputy Attorney General, argued the
                   cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Lauren Bonfiglio, of counsel and on
                   the brief).
PER CURIAM

      Defendant was charged with second-degree reckless vehicular homicide

under N.J.S.A. 2C:11-5(a) after he crashed his car into a fire hydrant, killing his

girlfriend in May 2016. Prior to the presentation of evidence at trial, defendant

requested the court to charge the jury with the newly enacted statute of third-

degree strict liability vehicular homicide, N.J.S.A. 2C:11-5.3, as a lesser-

included offense. The new statute, which became effective on July 21, 2017,

post-dated defendant's offense by more than a year.

      The trial court declined to issue the charge, finding it would violate the

Ex Post Facto Clause. Defendant was convicted by a jury of the second-degree

reckless charge.    The trial court also found him guilty of driving while

intoxicated (DWI), N.J.S.A. 39:4-50.1 The court sentenced defendant to eight

years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43 -

7.2, for the vehicular homicide conviction. For the DWI conviction, the court

suspended defendant's driver's license for one year, and imposed the required

fines, penalties, and surcharges.




1
  The court found defendant had a blood alcohol content of 0.13 percent. The
blood sample also tested positive for benzodiazepines and THC, the marijuana
metabolite.
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                                        2
      Defendant appeals from his conviction of reckless vehicular homicide,

contending the trial court erred in not charging the jury with third-degree strict

liability vehicular homicide as a lesser-included offense. He also contends his

sentence is excessive. We affirm.

      Defense counsel conceded it was a violation of the Ex Post Facto Clause

to charge the jury with the new third-degree statute. Nevertheless, when the

judge proposed defendant waive the clause, defendant said he would not. The

trial court held that absent defendant's waiver, the third-degree charge could not

be presented to the jury as a lesser-included offense because it would result in a

violation of the Ex Post Facto Clause.

      Defendant presents the following points for our consideration:

            POINT I: THE TRIAL COURT ERRED WHEN IT
            DENIED DEFENDANT'S REQUEST TO CHARGE
            THIRD-DEGREE STRICT LIABILITY VEHICULAR
            HOMICIDE AS A LESSER-INCLUDED OFFENSE
            TO SECOND-DEGREE RECKLESS VEHICULAR
            HOMICIDE. BECAUSE CHARGING N.J.S.A. 2C:11-
            5.3 AS A LESSER-INCLUDED OFFENSE WOULD
            NOT HAVE RESULTED IN AN EX POST FACTO
            CLAUSE VIOLATION, AND BECAUSE A
            RATIONAL BASIS EXISTED IN THE RECORD FOR
            THE CHARGE, FAILURE TO PROVIDE THE
            CHARGE TO THE JURY REQUIRES REVERSAL
            OF DEFENDANT'S CONVICTION.




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            A. Policy considerations behind third-degree strict
            liability vehicular homicide permitted the trial court to
            charge the new statute as a lesser-included offense.

            B. Charging third-degree strict liability vehicular
            homicide as a lesser-included offense to second-degree
            reckless vehicular homicide would not have violated
            defendant's constitutional rights under the ex post facto
            clauses.

            C. Third-degree strict liability homicide is a lesser-
            included offense to second-degree reckless vehicular
            homicide, and a rational basis existed in the record to
            support the lesser charge.

            D. Defendant was prejudiced by the trial court's failure
            to instruct the jury as to the lesser-included offense of
            third-degree strict liability vehicular homicide.

            POINT II:          DEFENDANT'S SENTENCE IS
            MANIFESTLY         EXCESSIVE AND MUST BE
            REDUCED.

      Our review of defendant's Point I arguments is de novo as the issue before

us concerns a matter of law, not entitled to any deference. State v. Grate, 

220 N.J. 317

, 329 (2015).

      The third-degree strict liability vehicular homicide charge was enacted

after defendant committed his second-degree offense. In determining whether a

statute will be applied retroactively, courts must apply a two-part test: (1)

whether the Legislature intended to give the statute retroactive application; and

if so (2) whether "retroactive application of that statute will result in either an

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                                        4
unconstitutional interference with vested rights or a manifest injustice." State

v. J.V., 

242 N.J. 432

, 444 (2020) (citation omitted). "A law is retrospective if it

'appl[ies] to events occurring before its enactment' or 'if it changes the legal

consequences of acts completed before its effective date.'" Riley v. N.J. State

Parole Bd., 

219 N.J. 270

, 285 (2014) (alteration in original) (quoting Miller v.

Florida, 

482 U.S. 423

, 430 (1987)).

      In deciphering legislative intent, we "look first to the statute's plain

language." In re T.B., 

236 N.J. 262

, 274 (2019) (quoting DiProspero v. Penn,

183 N.J. 477

, 492 (2005)). We review "'the entire statute' and read all provisions

'together in light of the general intent of the act.'"

Ibid. (quoting Perez v.

Zagami, LLC, 

218 N.J. 202

, 211 (2014)). We do "not 'rewrite a plainly-written

enactment of the Legislature [or] presume that the Legislature intended

something other than that expressed by way of the plain language.'" State v.

Rivastineo, 

447 N.J. Super. 526

, 529-30 (App. Div. 2016) (alteration in original)

(quoting Marino v. Marino, 

200 N.J. 315

, 329 (2009)). When the plain language

of the statute is clear and unambiguous, the interpretive process ends without

resort to outside resources. State v. Gandhi, 

201 N.J. 161

, 176-77 (2010).

      Moreover, "new criminal statutes are presumed to have solely prospective

application." 

J.V., 242 N.J. at 443

. The "savings statute," N.J.S.A. 1:1-15,


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                                        5
codifies the "general prohibition against retroactive application of penal laws,"

and expressly prohibits the retroactive application of statutory enactments

unless the statute contains a declaration that it shall apply retroactively . State

v. Chambers, 

377 N.J. Super. 365

, 367, 373 (App. Div. 2005).             Absent a

legislative declaration to the contrary, "we look to the date an offense was

committed in determining whether a new law, which discharges, releases or

affects an offense, should be applied to that offense." State in the Interest of

C.F., 

444 N.J. Super. 179

, 188 (App. Div. 2016) (emphasis in original).

      Here, the plain language of N.J.S.A. 2C:11-5.3 is unambiguous. It became

effective July 21, 2017, more than a year after defendant's offense. The law

does not include an express provision that it should be applied retroactively to

offenses committed before the effective date. When the plain language of the

statute is clear and unambiguous, the interpretive process ends without resort to

outside resources. 

Gandhi, 201 N.J. at 176-77

.

      Defendant also argues that the policy initiative behind third-degree strict

liability vehicular homicide permitted the trial court to charge the new statute.

However, defendant does not present any extrinsic sources indicating a

legislative intent or policy consideration to warrant the statute's application to

crimes committed before the statute's effective date.


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      In its legislative statement, the Legislature explained its intent behind the

new statute:

               One of the policy objectives of N.J.S.A. 2C:11-5.3 was
               to prevent situations where a defendant's act of criminal
               homicide by drunk driving did not rise to the level of
               second-degree reckless vehicular homicide, but where
               no other offenses, other than less-serious motor
               vehicles offenses under Title 39, would apply to the
               conduct.

               [S. Budget & Appropriations Comm. Statement to
               A. 3686, 2 (June 15, 2017).]

However, unlike drunk drivers whose crimes did not rise to the level of an

indictable offense, here, defendant was indicted and convicted of second-degree

vehicular homicide. Therefore, the policy considerations behind third-degree

strict liability vehicular homicide did not mandate a retroactive application of

the new statute.

      We turn next to defendant's argument regarding the Ex Post Facto Clause.

The United States and New Jersey Constitutions prohibit the Legislature from

enacting ex post facto laws. U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, §

7, ¶ 3; State v. Fortin, 

198 N.J. 619

, 626-27 (2009). New Jersey's ex post facto

jurisprudence follows the federal jurisprudence. State v. Perez, 

220 N.J. 423

,

439 (2015) (citing State v. Fortin, 

178 N.J. 540

, 608 n.8 (2004)). "The Ex Post

Facto Clause was intended to interdict the retroactive application of criminal

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                                          7
laws that harm the accused." 

Fortin, 178 N.J. at 608

. "The drafters of that clause

understood that it would be unjust to prosecute a person for a crime . . . that was

not on the books at the time of the commission of the act covered by the

subsequent legislation."

Ibid. An ex post

facto penal law is defined by "'two critical elements . . . : it

must be retrospective, that is, it must apply to events occurring before its

enactment, and it must disadvantage the offender affected by it.'"        State v.

Natale, 

184 N.J. 458

, 491 (2005) (alteration in original) (quoting Weaver v.

Graham, 

450 U.S. 24

, 29 (1981)). In order for an ex post facto violation to

occur, the statute in question must either "(1) punish as a crime an act previously

committed, which was innocent when done; (2) make more burdensome the

punishment for a crime, after its commission; or (3) deprive a defendant of any

defense available according to the law at the time when the crime was

committed." State v. Muhammad, 

145 N.J. 23

, 56 (1996) (citing Beazell v.

Ohio, 

269 U.S. 167

, 169-70 (1925)).

      Before this court, defendant argues there would be no ex post facto

violation because the third-degree offense, if applied as a lesser-included charge,

would have exposed him to a lesser punishment than the second-degree offense.

We are not persuaded.


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      If the third-degree statute was applied to defendant, it would be a violation

of the Ex Post Facto Clause because the law would relate to events occurring

before its enactment and would disadvantage defendant. See 

Fortin, 198 N.J. at 627

. The statute would both punish defendant's conduct with a separate crime

and make punishment for the crime harsher. See 

Muhammad, 145 N.J. at 56

.

      At the time of defendant's offense, the act of driving while intoxicated and

causing the death of another did not render defendant strictly liable for that

death. See N.J.S.A. 2:11-5(a). If defendant was acquitted of the second-degree

charge, the only other punishment defendant could be exposed to was a Title 39

municipal offense, carrying minimum county jail time. Under N.J.S.A. 2C:11-

5.3(b), the conduct is elevated from a municipal summons to a third-degree

indictable offense, with an ordinary sentencing range of three to five years in

state prison. N.J.S.A. 2C:43-6(a)(3).

      In addition, the State carries a lesser burden of proof regarding the third-

degree strict liability offense, because there is no mens rea requirement.

N.J.S.A. 2C:11-5.3. The State need only prove that defendant was driving with

a blood alcohol content over the legal limit.

Ibid. Under N.J.S.A. 2C:11-5(a),

the State must prove that defendant caused the death of a victim while driving a

vehicle recklessly.


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                                        9
      Lastly, the third-degree strict liability offense would have deprived

defendant of a defense available to him under the second-degree statute. See

Muhammad, 145 N.J. at 56

. N.J.S.A. 11-5.3(d) explicitly provides, "[i]t shall

not be a defense to a prosecution under this section that the decedent contributed

to [her] own death by reckless or negligent conduct or operation of a motor

vehicle."

      In his opening statement at trial, defense counsel asserted that defendant

did not cause his girlfriend's death, telling the jury it had to find defendant not

guilty if it found defendant's actions did not cause the accident. When defendant

testified, he stated that his girlfriend grabbed the steering wheel and yanked it

to the side, causing the car to "jump[] the curb" and the airbags to deploy,

striking the victim in the head. Under N.J.S.A. 2C:11-5.3, defendant could not

have raised this defense – that the victim contributed to her own death. Since

the amended statute violated the protections of the Ex Post Facto Clause, without

a waiver, it could not be applied to defendant. Therefore, the trial court did not

err in declining to charge the jury with N.J.S.A. 2C:11-5.3.2




2
  In light of our decision on this issue, we do not reach the issue of whether the
third-degree strict liability statute is a related or lesser-included offense to
second-degree reckless vehicular homicide.
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                                       10
      Defendant argues his sentence should be vacated and remanded for

resentencing because the court erred in finding aggravating factor three

applicable, N.J.S.A. 2C:44-1(a)(3), and failed to provide any reasoning for its

application of aggravating factor nine, N.J.S.A. 2C:44-1(a)(9). We disagree.

      We "review sentencing determinations in accordance with a deferential

standard." State v. Fuentes, 

217 N.J. 57

, 70 (2014). Ordinarily we will not

second-guess a judge's calibration of a sentence unless the judge failed to follow

the sentencing guidelines, the aggravating and mitigating factors were not

supported by the evidence, or application of the guidelines renders the sentence

clearly unreasonable. State v. Roth, 

95 N.J. 334

, 364-65 (1984).

      We are satisfied the trial judge's sentencing findings were supported by

the factual evidence. In considering aggravating factor three, the judge noted

defendant's extensive criminal history, including two indictable convictions: a

1997 burglary conviction and a 1999 possession of a controlled dangerous

substance (CDS) conviction, and numerous convictions for disorderly persons

offenses, including assaults, drug-related offenses, and various other offenses.

Finally, defendant had multiple incidents of speeding, careless driving, unsafe

operation, and at least six license suspensions, as well as a reckless driving

incident.


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      Although defendant was given numerous opportunities for rehabilitation,

the judge found he continued to reoffend. He had previously violated probation

and was unsuccessfully terminated from a diversionary program. The judge also

observed that the convictions were remote in time. As a result, he applied

mitigating factor seven, N.J.S.A. 2C:44-1(b)(7). Nevertheless, the finding of

aggravating three was properly supported by the record.

      We are also satisfied that the judge supported his finding of aggravating

factor nine, N.J.S.A. 2C:44-1(a)(9). During the sentencing hearing, the judge

found there is both an "overwhelming strong need" to specifically deter this

defendant and a strong need for general deterrence. The judge also noted the

tragic circumstances of these events.

      Affirmed.




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                                        12

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