SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 20 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. JEFFREY RUST, Defendant

- Appellant.

_________________________

Argued January 5, 2022

– Decided January 20 , 2022 Before Judges Mayer and Natali.
On appeal from the Superior Court of New Jersey , Law Division, Union County, Municipal Docket No. 6262. James A. Abate argued the cause for appellant

. Milton S. Liebowitz , Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent ( Will i am A. Daniel, Union County Prose cutor , attorney; Milton S. Leibowitz, of counsel and on the brief)

. PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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Defendant Jeffrey Rust appeals from an August 25, 2020 order of the Superior Court, Law Division, finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4

- 50. We affirm. The f acts are undisputed. In accordance with a plea agreement in municipal court, defendant admitted operating a motor vehicle within Winfield Township while under the influence of alcohol on April 20, 2019. The municipal court judge sentenced defendant to a two

- year suspension of his driving privileges, forty

- eight hours at the Intoxicated Driver's Resource Center (IDRC) , thirty

- days community service, and payment of monetar y fin e s and
other assessments . The municipal court judge granted a stay of the senten ce pending defendant's appeal to the Superior Court, Law Division. On appeal to the Law Division judge, defendant a r gued the new sentencing provisions under N.J.S.A. 39:4

- 50 should be applied retroactively so he could be sentenced to installation of an ignition interlock device rather than suspension of his driver's license

. Defendant also argued "an offense does not come into existence until there is a conviction, and a defendant does not become an offender until they are convicted." In an August 25 , 2020 order and written decision, t he Law Division judge rejected defendant's argument s. He found defendant committed the DWI3 A

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offense on April 20, 2019 and the revised penalties under the DWI statut e applied prospectively t o offenses occurring after December 1, 2019. Because defendant committed the offense nearly seven months prior to the effective date of the revised DWI statute, the Law Division judge concluded suspension of defendant's license was mandated. The Law Division judge also held defen dant's interpretation of the language in the revised DWI sentencing statute distort ed the common definition and application of the term s "offense" and "offender." He concluded "[u]nder plain usage, an 'offense' is distinct from an 'offender.' An offense consists of
the transactions and occurrences comprising the acts violative of the statute. In contrast, an offender under N.J.S.A, 39:4

- 50.17 is a person who has been convicted of the offense."
At the sentencing hearing, the Law Division judge suspen ded defendant's driv ing privileges for two years. He also sentenced defendant to forty

- eight hours at the IDRC, thirty hours of community service, installation of an ignition interlock device for two year s after completion of the license suspension period , and payment of a $1000 fine and other monetary assessments. T he Law Division judge denied defendant's request for a stay of the sentence pending appeal to this court.4 A

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On appeal, defendant raises the following arguments:
POINT I
USE OF THE TERMS " OF FENSE " AND

" OFFENDER " IN THE LEGISLATION ARE NOT AMBIGUOUS AND SHOULD BE INTERPRETED SO AS TO PERMIT DEFENDANTS IN CASES OPEN AND PENDING AT THE TIME OF THE BILL ' S EFFECTIVE DATE TO ELECT WHETHER TO BE SENTENCED TO PENALTIES AS THEY EXISTED BEFORE OR AFTER THE DATE OF ADJUDICATION.
POINT II PUNISHMENTS REQUIRED BY AMELIORATIVE STATUTES MAY APPLY TO OFFENSES COMMITTED BEFORE BUT ADJUDICATED AFTER A STATUTE’S EFFECTIVE DATE

. POINT III
INTERPRETING THE TERM " OFFENSE " TO APPLY ONLY TO INCIDENTS COMMITTED ON OR AFTER DECEMBER 1, 2019, LEADS TO AN ABSURD RESULT, GIVEN THE LEGISLATURE’S FINDING AND DECLARATION THAT ALCOHOL IGNITION INTERLOCK DEVICES ARE MORE EFFECTIVE THA [N] DRIVING PRIVILEGE FORFEITURE

. POINT IV GIVEN THE EX POST FACTO IMPLICATIONS WITH THE ENACTMENT OF NEW PENALTIES, DEFENDANTS CHARGED BEFORE DECEMBER 1, 2019, SHOULD BE GIVEN THE OPPORTUNITY TO5 A

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- 20 CHOOSE WHETHER TO BE SENTENCED IN ACCORDANCE WITH PENALTIES IN EFFECT EITHER BEFORE OR AFTER DECEMBER 1, 2019

. After the Law Division judge issued his decision in this matter, we published our opinion in State v. Scudieri , A

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- 20 (App. Div. November 1, 2021) disposing of t he same arguments raised by defendant in this appeal. To
the exten t defendant suggests his arguments are more nuanced than the arguments we reviewed and rejected in Scudieri , we disagree. Here, d efendant argues the four

- month delay between adoption of the revised DWI statute and its effective date supports application of the ignition
in terlock device penalty to offenses oc c urring prior to December 1, 2019. We addressed this argument in Scudieri , "observ[ing] the four

- month gap between the law's passing and the effective date was hardly an arbitrary or random decision. Rather, the law g ranted the New Jersey Motor Vehicle Commission time to ' take any anticipatory administrative action in advance of that date as shall be necessary to implement the provision s of this act.'" Id. slip op. at 5

. We also noted the potential for adverse consequences stemming from acceptance of the defendant's argument seeking "application of the new [DWI] sentencing laws to defendants . . . who committed offenses prior to the new law's enactment, but who are sentence d afterward." Id. slip op. at 6

. We commented6 A

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such a position would l ikely result in manipulation of sentencing dates, caus e defendants in similar situations to be sentenced dis similarly , and foster impermissible " judge shopping " by defendants seeking a purportedly more sympathetic j udge for sentencing

. 1 Ibid. Additionally, defendant argues the revised DWI statute's use of the word
"offense" and "offender" is clear and unambiguous, and the term "offender" is synonymous with the term "conviction

. " However, we rejected that argumen t in Scudieri

. Id. slip op. at 8.
C ontrary to defendant's argument, "o ffense " and " conviction " are not
synonymous . T he revised DWI statute applies specifically "to any offense occurring on or after [December 1, 2019]." N.J.S.A. 39:4

- 50. If the Legislature intended to apply the revised DWI statute for any conviction occurring after December 1, 2019, it would , and could , have so stated

. See D i Prospero v. Penn , 183 N.J. 477, 494 (2005) (quoting N.J. Democratic Party, Inc. v. Samson , 175 N.J. 178, 195 n. 6 (2002)) ("[T]he Legislature is presumed to be aware of judicial construction of its enactments.").

1 Judge

- shopping is "an attorney's attempt to have a particular judge try his or her case

. . . . " Goldfarb v. Solimine , 460 N.J. Super. 22, 32 (App. Div. 2019), aff'd as modified and remanded , 245 N.J. 326 (2021). In Goldfarb , we held judge

- shopping "ma y undermine public confidence in the i mpartial administration of justice." Ibid.7 A

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We affirm the sentence imposed for defendant's DWI conviction based on our decision in Scudieri . The Law Division judge's application of the DWI statute in effect as of April 20 , 2019, t he date defendant admitted operat ing his car while intoxicated , was both proper an d prescient. Affirmed

.