NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5726-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEREMIE FABER,

Defendant-Appellant.

_______________________

Submitted October 3, 2019 – Decided

Resubmitted October 13, 2020 – Decided

Before Judges Fuentes, Mayer and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Municipal Appeal No. 

MA-17-036.

Reisig Criminal Defense & DWI Law, LLC, attorneys 

for appellant (Matthew W. Reisig and Luke C. 

Kurzawa, on the brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Monica do 

Outeiro, Assistant Prosecutor, of counsel and on the 

brief; Kenneth R. Paulus, Jr., on the brief). 

The opinion of the court was delivered by

FUENTES, P.J.A.D.

October 16, 2020

September 3, 2020

APPROVED FOR PUBLICATION

October 16, 2020

APPELLATE DIVISION
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This opinion revises and replaces the version of this opinion published on 

September 3, 2020. In that previous version of the opinion, we held, in part, 

that the sentence imposed on defendant by the Law Division, Criminal Part, for 

his first conviction of driving while intoxicated, N.J.S.A. 39:4-50(a)(1), 

erroneously failed to include the ignition interlock device mandated by N.J.S.A. 

39:4-50(a)(1)(ii) and N.J.S.A. 39:4-50.17(a)(2). After the opinion was 

published, the State filed a motion for reconsideration requesting that we remove 

this part of the opinion. The State argued that on December 12, 2016, the time 

defendant committed this infraction, the mandatory sentencing provision 

requiring the installation of an ignition interlock device under N.J.S.A. 39:4-

50(a)(1)(ii) and N.J.S.A. 39:4-50.17a(l)(b), was not legally in effect. The State 

pointed out that the Legislature expressly stated that this mandatory provision 

became effective on December 1, 2019. In an order dated October 9, 2020, we 

granted the State's motion for reconsideration and now hereby revise our earlier 

opinion accordingly.

Defendant Jeremie Faber was tried and convicted in the Borough of Union 

Beach Municipal Court for driving while under the influence of alcohol (DWI), 

N.J.S.A. 39:4-50(a); reckless driving, N.J.S.A. 39:4-96; and failure to maintain
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lanes, N.J.S.A. 39:4-88(b). The municipal court judge merged the failure to 

maintain lanes with the reckless driving conviction and sentenced defendant to 

pay fines and mandatory penalties amounting to $689 and suspended his driving 

privileges for nine months.1 Defendant appealed the municipal court conviction 

and sentence to the Superior Court, Law Division in the Monmouth County 

Vicinage pursuant to Rule 3:23-8.

The Law Division judge conducted a de novo review of the record 

developed before the municipal court and again found defendant guilty of these 

three Title 39 offenses and imposed the same fines and mandatory penalties. 

However, the Law Division judge found that in determining the length of 

defendant's driver's license suspension for DWI, the municipal court judge 

erroneously considered defendant's lack of credibility in his trial testimony as 

an aggravating factor for sentencing purposes. In this light, the judge reduced 

the length of defendant's driver's license suspension from nine months to seven 

months. The judge also granted defendant's application to stay the execution of 

the sentence, including the suspension of his driving privileges, pending the 

outcome of his appeal to this court. The State did not object. 

1

 As a first time DWI offender, the municipal court had the discretion to suspend 

defendant's driver's license "for a period of not less than seven months nor more 

than one year." N.J.S.A. 39:4-50(a)(1)(ii).
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In this appeal, defendant argues the Law Division should have vacated his 

conviction and remanded the matter for a new trial because the municipal court 

judge's misconduct and bias against defendant tainted the fairness of the 

proceedings. We reject this argument and affirm. We nevertheless note the Law 

Division's failure to include, as a part of defendant's sentence, mandatory 

participation in the Intoxicated Driver Resource Center. Because this omission 

renders it an illegal sentence, we are compelled to remand the matter to the Law 

Division to resentence defendant in accordance with N.J.S.A. 39:4-50(a)(1)(ii). 

We also note the Law Division's failure to follow the standards established by 

our Supreme Court in State v. Robertson, 228 N.J. 138 (2017) when it granted 

defendant's application to stay the execution of the sentence pending the 

outcome of this appeal. 

The following facts inform our legal analysis. At approximately 12:50 

a.m. on December 12, 2016, Borough of Union Beach Police Officer Matthew 

Gajewski was on patrol on Highway 36 south in a marked police vehicle when 

he noticed a car "weaving in and out" of the marked traffic lanes. Gajewski 

decided to stop the car and issue a summons for failure to maintain lane in
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violation of N.J.S.A. 39:4-88(b)2and to determine whether the driver was under 

the influence of an intoxicating substance in violation of N.J.S.A. 39:4-50. 

Defendant, who was the driver of this car, immediately complied with the police 

officer's instructions and stopped the vehicle by the side of the road. A woman 

was seated in the front passenger seat of defendant's car. 

Gajewski approached the car and asked defendant to produce his driving 

credentials. As defendant attempted to comply, Gajewski noticed that defendant 

"slurred his words a little bit" and "his eyes were watery and bloodshot." 

Gajewski also detected an odor of alcohol emanating from inside defendant's 

car. The record shows Gajewski did not remember some of the details of his 

interactions with defendant and needed to review his police report to refresh his 

2

 N.J.S.A. 39:4-88(b) provides: 

When a roadway has been divided into clearly marked 

lanes for traffic, drivers of vehicles shall obey the 

following regulations:

. . . . 

A vehicle shall be driven as nearly as 

practicable entirely within a single lane and 

shall not be moved from that lane until the 

driver has first ascertained that the 

movement can be made with safety.
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recollection.3 Defense counsel argued the municipal court judge erred when he 

allowed the officer to rely on the police report in the course of the trial. The 

Law Division judge found this approach was proper and permissible under 

N.J.R.E. 612. 

Based on his initial observations, Gajewski asked defendant to perform a 

series of field sobriety tests. As described by the Law Division judge:

He sees bloodshot and watery eyes. These are standard 

things that are in a DWI case. And based on that, and 

then we get to the tests, the one leg stand test, which I 

believe he said that Mr. Faber did okay, but he didn’t 

count far enough down as far as how long he was 

supposed to hold his leg. And then there was the heel to 

toe which he did not do well. And based on that, he was 

placed under arrest for [suspicion of] being under the 

influence. 

Based on defendant's inability to properly perform these tests, Gajewski 

found he had probable cause to charge defendant with DWI, reckless driving, 

and failure to maintain a lane. Gajewski transported defendant to the Union 

Beach Police Station where he administered defendant two Alcotests that 

indicated a blood alcohol content (BAC) reading of 0.13%. In the course of the 

trial, defense counsel apprised the municipal court judge that "there is a 

3

 Gajewski testified before the municipal court on August 23, 2017, more than 

nine months after his encounter with defendant. 
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specifically [sic] a motion regarding the Alcotest." The Law Division judge 

held the municipal court correctly rejected this attack on the BAC reading as 

baseless because it was "without the benefit of an expert report or testimony." 

After finding defendant guilty of the three Title 39 offenses, the Law 

Division judge found the sentence imposed by the municipal court was not 

supported by a valid aggravating factor. Specifically, the Law Division judge 

found the municipal court judge repeatedly mentioned defendant's credibility at 

trial as a basis to support a lengthier period of suspension of defendant's driving 

privileges. The Law Division judge found particularly problematic: (1) the 

antagonism reflected in the record between defense counsel and the municipal 

court judge; and (2) the municipal court judge's comments to defendant, while 

he was testifying in his own defense at trial, urging him to discuss the possibility 

of a plea agreement with the prosecutor.

The way this trial went and there was antagonism 

clearly between [the municipal court judge] and 

[defense counsel]. And then the comments that were 

made to Mr. Faber, he’s a defendant, but he should be 

treated respectfully. And not sort of tried to be pushed 

into working the case out, saying it doesn't look good. 

You can't say that during the middle of a motion or a 

trial. 
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Based on these improper considerations, the Law Division reduced the 

length of defendant's suspension of driving privileges from nine months to seven 

months but left undisturbed the remaining aspects of the sentence.

In this appeal, defendant raises the following argument.

Point I

THE LAW DIVISION ERRED BY NOT 

REMANDING THE MATTER FOR A NEW TRIAL 

GIVEN THE APPEARANCE OF BIAS THAT WAS 

CLEARLY DEMONSTRATED BY THE 

MUNICIPAL COURT. THE LAW DIVISION, IN ITS 

DECISION, RECOGNIZED THE IMPROPER 

ACTIONS OF THE MUNICIPAL COURT BUT 

DECLINED TO REMAND THE MATTER FOR A 

NEW TRIAL AS IT SHOULD HAVE.

We reject this argument, affirm the Law Division's judgment finding 

defendant guilty of all the Title 39 offenses, and remand for the court to amend 

the sentence it imposed for the DWI conviction in accordance with statutory 

mandates.

As a threshold matter, we emphasize that this court reviews the decision 

of the Law Division, not the municipal court. State v. Robertson, 438 N.J. 

Super. 47, 64 (App. Div. 2014). Our standard of review is well-settled: "[t]he 

aim of the review at the outset is rather to determine whether the findings made 
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could reasonably have been reached on sufficient credible evidence present in 

the record." State v. Johnson, 42 N.J. 146, 162 (1964). 

Here, the Law Division judge conducted a thorough de novo review of the 

record developed before the municipal court and made factual findings in 

support of defendant's culpability. These findings by the Law Division were not 

tainted by the questionable conduct exhibited by the municipal court judge. In 

fact, the Law Division criticized the way the municipal court judge behaved in 

his interactions with defendant. The de novo assessment of the evidence 

conducted by the Law Division judge, together with his decision to reduce by 

two months the period of suspension of defendant's driver's license cured any 

prejudice caused by the conduct of the municipal court judge. Moreover, the 

record relied on by the Law Division contains sufficient evidence to support the 

court's decision finding defendant guilty of DWI, reckless driving, and failure 

to maintain his lane beyond a reasonable doubt.

Although not raised by the parties, we cannot conclude our analysis 

without addressing a specific issue related to defendant's sentence. In an order 

dated June 28, 2018, the Law Division judge provided a detailed description of 

the sentence he imposed on defendant as a first time DWI offender under 

N.J.S.A. 39:4-50(a). Missing from this detailed recitation of statutorily 
10 A-5726-17T4

mandated sanctions, however, is any reference to the Intoxicated Driver 

Resource Center (IDRC). N.J.S.A. 39:4-50(a)(ii) provides, in relevant part:

[I]f the person's blood alcohol concentration is 0.10% 

or higher, . . . [he or she shall serve] a period of 

detainment of not less than 12 hours nor more than 48 

hours spent during two consecutive days of not less 

than six hours each day and served as prescribed by the 

program requirements of the Intoxicated Driver 

Resource Centers established under subsection (f) of 

this section[.]

Both the municipal court and the Law Division failed to adhere to this

critically important part of the Legislature's sentencing scheme for DWI 

offenders. The Supreme Court has proclaimed that "[t]he primary purpose 

behind New Jersey's drunk-driving statutes is to curb the senseless havoc and 

destruction caused by intoxicated drivers." State v. Tischio, 107 N.J. 504, 512 

(1987). Mandatory participation in the IDRC is intended to deter those who 

elect to drive while intoxicated. 

A sentence imposed in violation of the applicable law is an illegal 

sentence. State v. Hyland, 238 N.J. 135, 148 (2019); State v. Acevedo, 205 N.J. 

40, 45 (2011). The State has a duty to raise this error before the sentencing 

court. Furthermore, if the State's measures to address these errors are rejected 

by the trial court, the State has the right to file a direct appeal to this court. State 

v. Ciancaglini, 204 N.J. 597, 605 (2011); see also R. 3:21-10(b)(5). A court may 
11 A-5726-17T4

also correct an illegal sentence on its own motion. State v. Schubert, 212 N.J. 

295, 309 (2012). Here, because the State did not act, we must take the initiative.

Unfortunately, we are not finished. We are compelled to address yet 

another oversight by the Law Division in adhering to the standards established 

by our Supreme Court. The Law Division judge decided to stay the execution 

of the sentence, including the suspension of defendant's driving privileges, 

pending the outcome of this appeal. The judge offered the following reasons in 

support of this decision: "the record of some of the things that happened on the 

[m]unicipal [c]ourt level are a little troubling to me." The Law Division judge 

made this decision more than fifteen months after the Supreme Court decided 

Robertson, 228 N.J. at 152, in which it unanimously held:

[i]f a defendant is convicted of DWI by the Law 

Division, Rule 2:9-4 applies. At this stage, the 

defendant has the burden to justify a stay of a driver's 

license suspension pending appeal to the Appellate 

Division. Courts may grant a stay only if the defendant 

demonstrates that (1) "it appears that the case involves 

a substantial question that should be determined" on 

appeal, (2) the safety of any person or the community 

"will not be seriously threatened" if defendant's license 

is not suspended, and (3) "there is no significant risk of 

defendant's flight." R. 2:9-4.

The Law Division failed to follow the Supreme Court's clear mandate 

when it granted defendant's application for a stay of sentence pending appeal. 
12 A-5726-17T4

Furthermore, the Monmouth County Prosecutor's Office did not object under 

Robertson at the time the Law Division granted defendant's motion, did not 

move before this court to remand the matter for the Law Division to apply the 

standards codified in Rule 2:9-4, nor raise the issue in its brief in this appeal. 

We thus raise this issue sua sponte "pursuant to our didactic role as an 

intermediate appellate court." Estate of Yearby v. Middlesex Cty., 453 N.J. 

Super. 388, 401 n.6 (App. Div. 2018). We expect the Law Division will follow 

the Supreme Court's mandate in Robertson and apply the standards codified in 

Rule 2:9-4 when deciding a future application for a stay of execution of a 

sentence in a DWI case.

We thus affirm the Law Division's order finding defendant guilty of DWI 

and reckless driving and remand for the court to resentence defendant within ten 

days of the release of this revised opinion.

Affirmed in part and remanded in part. We do not retain jurisdiction.