SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3288-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM E. SWAN, JR.,

Defendant-Appellant.

_______________________

Submitted November 5, 2020 – Decided

Before Judges Sumners and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Cape May County, Municipal Appeal No. 01-

01-18.

Robert Ramsey, attorney for appellant.

Jeffrey H. Sutherland, Cape May County Prosecutor, 

attorney for respondent (Gretchen A. Pickering, Senior 

Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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." 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.

January 11, 2021
2

A-3288-18T1

In 2007, defendant William E. Swan, Jr. pled guilty in Lower Township 

Municipal Court, as a subsequent offender, to driving while intoxicated (DWI), 

N.J.S.A. 39:4-50, arising from a one-car accident in which he was the car's sole 

occupant and was injured. His sentence, including a ten-year license suspension, 

was consecutive to an earlier ten-year license suspension for his third DWI, 

which started in June 2006. 

In 2018, the municipal court granted Swann's Rule 7:6-2(b) motion to 

vacate the guilty plea. The court determined that, in accordance with N.J.S.A. 

2B:12-17.2, the Superior Court had sole jurisdiction over the DWI charge 

because he suffered a serious injury in the accident. The statute provides:

a. In any matter concerning Title 39 of the Revised 

Statutes where death or serious bodily injury has 

occurred, regardless of whether the death or serious 

bodily injury is an element of the offense or 

violation, the Superior Court shall have exclusive 

jurisdiction over the offense or violation until such time 

that the Superior Court transfers the matter to the 

municipal court. For the purposes of this section, the 

term "serious bodily injury" shall have the meaning set 

forth in subsection b. of N.J.S. 2C:11-1.

1

1

 N.J.S.A. 2C:11-1(b) defines serious bodily injury as "bodily injury which 

creates a substantial risk of death or which causes serious, permanent 

disfigurement, or protracted loss or impairment of the function of any bodily 

member or organ[.]"
3

A-3288-18T1

b. The Attorney General may develop guidelines 

establishing procedures to be followed for prosecutions 

involving violations of N.J.S. 2C:11-4, N.J.S. 2C:11-5, 

. . . [N.J.S.A.] 2C:11-5.3[] or . . . [N.J.S.A.] 2C:11-5.1[] 

or criminal offenses involving serious bodily injury and 

underlying motor vehicle offenses arising from the 

same incident consistent with the provisions of . . . 

[N.J.S.A.] 2B:12-17.2 et al[].

[N.J.S.A. 2B:12-17.2.]

The court also directed the matter be referred to the county prosecutor for 

review. .

After allowing the State to challenge the municipal court's decision on 

interlocutory appeal, Judge Sarah B. Johnson ordered reinstatement of Swann's 

guilty plea. Upon vacating the municipal court's order, the judge re-imposed the

initial sentence and credited Swann for fines paid and jail time served. The 

judge also granted defendant's request for a stay of the driver's license 

suspension pending appeal. 

Before us, Swann contends N.J.S.A. 2B:12-17.2(a) is clear on its face and 

was misapplied by the judge. Alternatively, he argues that because the judge 

determined N.J.S.A. 2B:12-17.2(a) was ambiguous, she should have applied the 

rule of lenity to the statute to preclude the municipal court's jurisdiction over the 

DWI charge. We disagree and affirm substantially for the reasons expressed by 

Judge Johnson in her thoughtful and cogent opinion.
4

A-3288-18T1

In an appeal of a municipal court order, the Law Division makes

independent findings of facts and conclusions of law based on the record 

developed in the municipal court. State v. Avena, 281 N.J. Super. 327, 333 

(App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). We 

"consider only the action of the Law Division and not that of the municipal 

court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citation 

omitted). Given that the State only challenged the municipal court's legal 

conclusions and not its factual findings, this appeal rests solely on the Law 

Division's conclusions of law, to which we owe no deference. Manalapan 

Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citing State 

v. Brown, 118 N.J. 595, 604 (1990)).

To aid in our interpretation of N.J.S.A. 2B:12-17.2(a), we are guided by 

some well-known rules. 

The primary purpose of "statutory interpretation 

is to determine and 'effectuate the Legislature's intent.'" 

State v. Rivastineo, 447 N.J. Super. 526, 529 (App. Div. 

2016) (quoting State v. Shelley, 205 N.J. 320, 323 

(2011)). We initially consider "the plain 'language of 

the statute, giving the terms used therein their ordinary 

and accepted meaning.'" Ibid. "We will not presume 

that the Legislature intended a result different from 

what is indicated by the plain language or add a 

qualification to a statute that the Legislature chose to 

omit." Tumpson v. Farina, 218 N.J. 450, 467-68 (2014) 

(citing DiProspero v. Penn, 183 N.J. 477, 493 (2005)). 
5

A-3288-18T1

[Tasca v. Bd. of Trs., Police & Firemen's Ret. Sys., 458 

N.J. Super. 47, 56 (App. Div. 2019).]

"On the other hand, if there is ambiguity in the statutory language that leads to 

more than one plausible interpretation, we may turn to extrinsic evidence, 

'including legislative history, committee reports, and contemporaneous 

construction.'" DiProspero, 183 N.J. at 492-93 (quoting Cherry Hill Manor 

Assocs. v. Faugno, 182 N.J. 64, 75 (2004)).

With these principles in mind, we conclude the plain language of N.J.S.A. 

2B:12-17.2(a) is clear – a DWI-related accident involving serious injuries is 

within the Superior Court's jurisdiction, not the municipal court's. The statute, 

however, does not specifically address the situation in which a person was 

charged with a motor vehicle offense, but not charged with an offense within 

the Superior Court's jurisdiction. Hence, on its face, the statute is unclear as to 

whether it applied to Swann's DWI, because he was the only person injured in 

the accident but was not charged with an indictable offense invoking the 

Superior Court's jurisdiction. Aided by an examination of the Legislature's 

intent in enacting N.J.S.A. 2B:12-17.2(a), we conclude the statute did not apply 

to Swann's DWI charge. 
6

A-3288-18T1

We agree with Judge Johnson's analysis of the policy behind the 

enactment of N.J.S.A. 2B:12-17.2(a). She cited State v. Dively, 92 N.J. 573, 

576 (1983), where the defendant was driving while intoxicated and caused the 

death of another driver. He was issued five municipal court summonses, 

including one for DWI. Ibid. "When the municipal court hearings commenced

. . . the parties and the court were aware of the death resulting from the accident."

Ibid. After the defendant pled guilty to DWI and other motor vehicle violations

in municipal court, a grand jury later indicted him for causing death by auto, 

N.J.S.A. 2A:113-9 (repealed), based on the same accident that was the subject 

of the municipal court convictions. Id. at 576-77.

Although the defendant entered a guilty plea to the criminal charge in 

Superior Court, the next day, the United States Supreme Court issued its 

decision in Illinois v. Vitale, 447 U.S. 410 (1980). Id. at 577. In that case, 

Vitale carelessly drove his car and struck two children who died from their 

injuries. Vitale, 447 U.S. at 411. After the driver was convicted of a traffic 

offense related to the accident, he was indicted for involuntary manslaughter for 

the death of the two children. Id. at 412-13. The Supreme Court held if the 

prosecution of Vitale on the criminal charges required the same proofs necessary 

to establish the motor vehicle violation, Vitale's prosecution on the criminal 
7

A-3288-18T1

charges would be barred by the Double Jeopardy Clause of the United States 

Constitution. Id. at 421. The matter was remanded for a determination of 

whether Illinois could prove involuntary manslaughter without proving the facts 

supporting the motor vehicle offense of which Vitale was convicted. Ibid.

Believing that the decision in Vitale barred his conviction on the death by 

auto charge on double jeopardy grounds, the defendant in Dively moved to 

withdraw his guilty plea. Dively, 92 N.J. at 577. The prosecutor conceded that 

the same evidence that would have been offered to prove the municipal court 

charges would be necessary to prove the criminal charge against the defendant. 

Ibid. The Superior Court permitted the defendant to enter a guilty plea 

conditioned on his right to raise on appeal the double jeopardy argument, which 

the trial court denied. Ibid.

Our Supreme Court held that the motor vehicle violations of which Dively 

was convicted and the criminal offense for which he was indicted were based on 

the same facts. Id. at 582-83. Thus, the Court concluded, in order to prove the 

criminal charge, the State would rely on the same evidence and alleged acts that 

underlie the motor vehicle offenses, triggering double jeopardy protections. 

Ibid. To prevent this situation from arising in the future, the Court reiterated its 

prior directive that
8

A-3288-18T1

where a complaint is filed in the municipal court and 

the magistrate has reason to believe that the factual 

situation out of which the complaint arose may also 

involve an indictable offense, the matter should be 

referred to the county prosecutor. 

[Id. at 589-90.]

In addition, the Court issued a "directive to all municipal court judges to 

withhold actions on drunk driving incidents involving personal injuries until 

clearance to proceed has been obtained from the county prosecutor." Id. at 590. 

This was followed by a May 3, 1983 Administrative Directive from the Court 

providing that when a complaint is issued in the municipal court and the judge 

or administrator believes the factual situation also involves an indictable 

offense, the matter should be referred to the prosecutor. In re Seelig, 180 N.J. 

234, 241-44 (2004) (holding defense counsel had an ethical obligation to advise 

municipal court of pending indictable offenses arising from motor vehicle

charges). 

In her written opinion, Judge Johnson relied upon the January 26, 2006 

Assembly Committee Statement to ascertain the intent behind N.J.S.A. 2B:12-

17.2(a). The Statement reads:

The New Jersey Supreme Court has ruled that, 

after a defendant pleads guilty in municipal court to 

traffic offenses, the double jeopardy provisions of the 

State and federal constitutions bar a subsequent
9

A-3288-18T1

prosecution against him in Superior Court for criminal 

charges arising out of the same incident. State v. 

Dively, 92 N.J. 573 (1983). 

 This bill was prompted by an incident in which a 

Trenton couple was killed but the defendant had entered 

a guilty plea in municipal court to traffic offenses prior 

to the resolution of the criminal charges for aggravated 

manslaughter and death by auto. Under Dively, the

disposition in municipal court of the traffic offenses 

precluded the prosecutor from bringing the defendant 

to trial on the criminal charges. It is the intention of the 

sponsor that established guidelines may prevent this 

type of situation from occurring in the future.

The bill provides that in any matter concerning a motor 

vehicle incident where death or serious bodily injury has 

occurred, regardless of whether death or serious bodily injury 

is an element of the offense or violation, the Superior Court 

shall have exclusive jurisdiction over the offense or violation 

until such time that the Superior Court transfers the matter to 

the municipal court. By clearly and unequivocally placing 

jurisdiction with regard to these matters with the Superior

Court, the bill would provide for one court to resolve the case 

as opposed to two different courts, the municipal and Superior

Court, working at odds with each other.

 The bill provides that the Attorney General may

develop guidelines on this issue and may disseminate 

the guidelines to the county prosecutors. 

This bill was pre-filed for introduction in the 

2006-2007 session pending technical review. As 

reported, the bill includes the changes required by 

technical review, which has been performed. 

[Assemb. Judiciary Comm. Statement to A.911 (Jan. 

26, 2006)]
10 A-3288-18T1

In her written opinion concluding the municipal court misinterpreted 

N.J.S.A. 2B:12-17.2(a), the judge held:

I find that [N.J.S.A. 2B:12-17.2(a)] is ambiguous with 

respect to whether the [S]uperior [C]ourt obtains 

jurisdiction in the circumstances presented here. Thus, 

an examination of the statute's legislative history is 

appropriate to determine its intent. 

. . . .

. . . I find that N.J.S.A. 2B:12-17.2(a) was enacted by 

the Legislature to prevent defendants from using the 

holding in Dively to avoid criminal prosecution for 

more serious offenses by resolving the related traffic 

violations in municipal court before resolution of 

indictable offenses arising from a traffic accident. My 

finding is supported by the January 26, 2006 Assembly 

Committee Statement, which provides that [the] goal of 

the statute is to provide for the disposition of motor 

vehicle incidents involving death or serious bodily 

injury in one court and to avoid the municipal and 

[S]uperior [C]ourt "working at odds with each other." 

. . . .

As [d]efendant was the only individual who suffered

any injury as a result of the November 13, 2006 motor 

vehicle incident, I find that he was never in danger of 

being exposed to liability in two courts because the 

criminal code does not authorize prosecution of a 

defendant for self-inflicted injuries. 

. . . .
11 A-3288-18T1

. . . I find that [d]efendant, by invoking N.J.S.A. 2B:12-

17.2 (a) . . . is seeking to use double jeopardy 

precedents to avoid penalties for his previously 

admitted unlawful conduct. Should his guilty plea 

remain vacated, [d]efendant would not face any 

criminal charges, and the State would have the difficult 

task of proving at trial motor vehicle offenses alleged 

to have occurred over twelve [] years ago. I do not find 

such a result was either intended or anticipated by the 

Legislature in enacting the statute; nor do I find such 

result in the interests of justice. 

Therefore, I find that the language of N.J.S.A. 2B:12-

17.2(a) is ambiguous in its application to the present 

situation wherein the driver charged with motor vehicle 

violations is the only individual injured as a result of 

the alleged offenses . . . . I resolve that ambiguity 

consistent with the State's interpretation and find that 

the proper venue for this matter was the Lower 

Township Municipal Court, which possessed exclusive 

jurisdiction based on the facts and circumstances 

presented in the record. 

We discern no sound reason to deviate from Judge Johnson's ruling. It is 

clear that N.J.S.A. 2B:12-17.2(a) was meant to address a situation where an 

incident results in a person being charged with a municipal court offense as well 

as a Superior Court indictable offense; the county prosecutor must review all the 

charges to determine how they will be adjudicated to avoid constitutional

limitations. This will eliminate double jeopardy concerns that might bar 

prosecution of the more serious indictable offenses should the municipal court 

offense be resolved first and rely upon the same facts that are needed to 
12 A-3288-18T1

prosecute the Superior court offense. R. 3:1-5(a) ("All indictable offenses shall 

be prosecuted in the Superior Court, Law Division . . . ."). See also State v. 

Muniz, 118 N.J. 319, 331-34 (1990) (holding death by auto and lesser-included 

motor vehicle offenses must be tried together before the Superior Court). 

We find further support for the judge's order in N.J.S.A. 2B:12-17.2(b), 

which states the Attorney General may set prosecution guidelines concerning 

"criminal offenses involving serious bodily injury and underlying motor vehicle 

offenses arising from the same incident." This implies the statute only applies 

where a defendant is charged with both criminal offenses and motor vehicle 

offenses. Because Swann's DWI-related accident caused only his injury and no 

indictable offense resulted, there was no need to invoke the county prosecutor's

review as set forth in N.J.S.A. 2B:12-17.2(a). It would be an absurd result to 

require such review given that the intent behind the statute would not be 

furthered – Swann faced no criminal prosecution in Superior Court related to 

the DWI charge.

Finally, we reject Swann's argument that because N.J.S.A. 2B:12-17.2(a) 

is ambiguous, the rule of lenity should be invoked in his favor to allow him to 

vacate his guilty plea. State v. D.A., 191 N.J. 158, 164 (2007). (Db11). He 

also asserts that failure to do so will punish him under a penal statute that has 
13 A-3288-18T1

not been established under the law. In re DeMarco, 83 N.J. 25, 36 (1980) ("No 

one shall be punished for a crime unless both that crime and its punishment are 

clearly set forth in positive law."). (Db10-11). 

The rule of lenity "holds that, when interpreting a criminal statute, 

ambiguities that cannot be resolved by either the statute's text or extrinsic aids 

must be resolved in favor of the defendant." State v. Drake, 444 N.J. Super. 

265, 284 (App. Div. 2016) (quoting State v. Rangel, 213 N.J. 500, 515 (2013)). 

The rule therefore only applies if a statute's "ambiguity is not resolved by a 

review of 'all sources of legislative intent.'" State v. Nicholson, 451 N.J. Super. 

534, 552 (App. Div. 2017) (emphasis added) (quoting State v. Regis, 208 N.J. 

439, 452 (2011)). Given that our interpretation of N.J.S.A. 2B:12-17.2(a) is 

aided by legislative history and case law, the rule of lenity has no application 

here.

Affirmed.