NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5026-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES WHEATLEY,

Defendant-Appellant.

Submitted November 10, 2016 – Decided

Before Judges Simonelli, Carroll and Gooden 

Brown.

On appeal from the Superior Court of New 

Jersey, Law Division, Ocean County, 

Municipal Appeal No. 01-15.

Marshall, Bonus, Proetta & Oliver, attorneys 

for appellant (Jeff Thakker, of counsel; 

Stephen F. McGuckin, on the briefs).

Joseph D. Coronato, Ocean County Prosecutor, 

attorney for respondent (Samuel Marzarella, 

Supervising Assistant Prosecutor, of counsel; 

O. Nicholas Monaco, Assistant Prosecutor, on 

the brief).

The opinion of the court was delivered by

CARROLL, J.A.D.

 Defendant Charles Wheatley pled guilty in the Manchester 

Township Municipal Court to driving while intoxicated (DWI), 

N.J.S.A. 39:4-50(a), pursuant to a plea agreement by which 

APPROVED FOR PUBLICATION

November 21, 2016

APPELLATE DIVISION

November 21, 2016
2 A-5026-14T1

related charges of reckless driving, N.J.S.A. 39:4-96, and 

failure to maintain a lane of vehicular travel, N.J.S.A. 39:4-

88(b), were dismissed. The narrow issue presented in this 

appeal is whether the heightened penalties contained in N.J.S.A.

39:4-50(a)(2), applicable upon conviction of a second DWI 

offense under N.J.S.A. 39:4-50(a), may be imposed where 

defendant's predicate "first offense" occurred within a school 

zone as defined by N.J.S.A. 39:4-50(g), but the second DWI 

offense did not. 

 The procedural history and factual background underlying 

this appeal are undisputed. In 2007, defendant was convicted in 

Delran Township of DWI in a school zone in violation of N.J.S.A.

39:4-50(g).1 Defendant was arrested and charged by the 

Manchester Police in the instant matter on May 5, 2014. On 

January 14, 2015, defendant pled guilty in the Manchester 

Township Municipal Court under subsection (a) of the DWI 

statute, N.J.S.A. 39:4-50. The municipal court rejected 

defendant's contention that because he was previously convicted 

under subsection (g) of the DWI statute, he should be sentenced 

as a first offender under subsection (a). Consequently, the 

 

1 The record on appeal does not include a copy of the summons or 

the plea and sentencing transcripts. No explanation has been 

given for the absence of this documentation. However, in their 

respective briefs the parties agree upon the accuracy of this 

prior history. 
3 A-5026-14T1

municipal court sentenced defendant as a second offender 

consistent with the penalties prescribed by N.J.S.A. 39:4-

50(a)(2). Specifically, the municipal court suspended 

defendant's license for two years; ordered him to serve fortyeight hours in the Intoxicated Driver Resource Center, perform 

thirty days of community service, and place an interlock device 

on his car; and imposed applicable fines, penalties, and court 

costs. The municipal court stayed the sentence pending appeal. 

 The Law Division, on de novo review, similarly held that 

the second-offense penalties of subsection (a) applied to 

defendant's current DWI conviction. The court imposed anew the 

sentence that the municipal court imposed, and continued the 

stay of defendant's sentence pending this appeal. 

 Defendant presents the following arguments in his appeal: 

POINT I 

SUBSECTIONS "(g)" AND "(a)" OF N.J.S.A.

39:4-50 REPRESENT SEPARATE AND DISTINCT 

OFFENSES, BASED ON THE PLAIN LANGUAGE OF THE 

STATUTE, THE LEGISLATIVE HISTORY, THE 

PRINCIPLES OF LENITY, AND THE SUPREME 

COURT'S DECISION IN STATE V. REINER[, 180 

N.J. 307 (2004)]; [DEFENDANT] WAS A FIRSTTIME N.J.S.A. 39:4-50(a) [OFFENDER] AND 

COULD ONLY HAVE BEEN CONVICTED AND SENTENCED 

ACCORDINGLY. 

POINT II 

IT WAS NOT ESTABLISHED THAT THE MANCHESTER 

MUNICIPAL COURT HAD JURISDICTION OVER THIS 
4 A-5026-14T1

MATTER; THE CONVICTION IS VOID. (Not Raised 

Below). 

 Our role on appeal after a trial de novo under Rule 3:23 is 

to determine whether there is sufficient credible evidence in 

the record supporting the Law Division's decision. State v. 

Johnson, 42 N.J. 146, 162 (1964). Unlike the Law Division, we 

do not independently assess the evidence. State v. Locurto, 157 

N.J. 463, 471 (1999). However, we review de novo the trial 

court's legal conclusions that flow from established facts. 

State v. Handy, 206 N.J. 39, 45 (2011). 

 Pertinent to this appeal, N.J.S.A. 39:4-50 provides in 

relevant part: 

 Except as provided in subsection (g) of 

this section, a person who operates a motor 

vehicle while under the influence of 

intoxicating liquor . . . with a blood 

alcohol concentration of 0.08% or more . . . 

shall be subject: 

 (1) For the first offense: 

 (i) if the person's blood alcohol 

concentration is 0.08% or higher but less 

than 0.10% . . . to a fine of not less than 

$250 nor more than $400 and 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 . . . and, in the 

discretion of the court, a term of 

imprisonment of not more than 30 days and 

[suspension of driving privileges] for a 

period of three months[.] 
5 A-5026-14T1

 . . . . 

 (2) For a second violation, a person 

shall be subject to a fine of not less than 

$500 nor more than $1000, and . . . 

community service for a period of 30 days . 

. . [and] imprisonment for a term of not 

less than 48 consecutive hours . . . nor 

more than 90 days, and [suspension of 

driving privileges] for a period of two 

years . . . . 

 However, when the violation of N.J.S.A. 39:4-50 occurs in 

any one of three areas designated as a school zone, subsection 

(g) of the statute prescribes harsher penalties. Specifically, 

in such instances, 

[t]he convicted person shall: for a first 

offense, be fined not less than $500 or more 

than $800, be imprisoned for not more than 

60 days and have his license . . . suspended 

for a period of not less than one year or 

more than two years; for a second offense, 

be fined not less than $1,000 or more than 

$2,000, perform community service for a 

period of 60 days, be imprisoned for not 

less than 96 consecutive hours . . . nor 

more than 180 days . . . and have his 

license . . . suspended for a period of four 

years[.]2

[N.J.S.A. 39:4-50(g)(3).] 

 Relying on Reiner, supra, defendant renews his argument 

that because he was previously convicted under subsection (g) of 

N.J.S.A. 39:4-50 and not subsection (a), he must therefore now 

 

2 Both subsections (a) and (g) provide additionally increased 

penalties for a third or subsequent offense. 
6 A-5026-14T1

be sentenced as a first offender under N.J.S.A. 39:4-50(a). For 

the reasons that follow, we find defendant's reliance on Reiner

inapposite. 

 In Reiner, the defendant had previously been convicted of 

DWI under subsection (a) when he was thereafter convicted of DWI 

in a school zone under subsection (g). Reiner, supra, 180 N.J.

at 309-11. The issue before the Court was whether defendant 

should be sentenced as a second offender pursuant to subsection 

(g), even though he had no prior convictions for DWI in a school 

zone. Ibid. The Court found that the ambiguities in the 

language of the statute, and the inconclusive legislative 

history when the DWI statute was amended in 1999 to add 

subsection (g), compelled it "to construe the statute strictly, 

against the State and in favor of the defendant." Id. at 318. 

Because the penalties for a second offender under subsection (g) 

were approximately twice those applicable to a second offender 

under subsection (a), the Court held that subsection (g) is "a 

separate offense that requires other subsection (g) convictions 

for repeat status to attach." Ibid. 

 Importantly, however, the Court noted "the anomalous 

sentencing that would result" on remand were the defendant to be 

sanctioned only as a first offender under subsection (g), 

because the penalties for that offense were significantly less 
7 A-5026-14T1

severe than the penalties for a second subsection (a) offense. 

Id. at 319. Consequently, the Court concluded that "the trial 

court should sentence defendant in accordance with the 

heightened penalties that apply as a consequence of being a 

second-time offender under subsection (a). We believe that that 

application fulfills the legislative intent with regard to the 

punishment of repeat DWI offenders." Id. at 319-20. 

 The factual scenario of the present case is the converse of 

that addressed by the Court in Reiner. Unlike Reiner, here 

defendant was first convicted of the school zone offense and 

then the general DWI offense. Both subsections of the DWI 

statute require the same elements of proof, except that the 

State must additionally prove the offense occurred in a school 

zone in order to establish a violation of subsection (g), with 

its attendant harsher penalties. In effect, then, although 

Reiner deemed them to be separate offenses, subsection (a) is a 

lesser-included offense of subsection (g). In the related 

context of our Criminal Code, N.J.S.A. 2C:1-8d(1) explains that 

an offense is included when "[i]t is established by proof of the 

same or less than all the facts required to establish the 

commission of the offense charged[.]" 

 Thus, when defendant was convicted of DWI in a school zone 

in Delran in 2007, the State necessarily established all the 
8 A-5026-14T1

elements necessary to sustain not only a subsection (g) 

violation but also a subsection (a) violation. Subsequently, 

when defendant pled guilty to N.J.S.A. 39:4-50(a) in Manchester 

Township in 2015, the same basic elements of the conventional 

DWI statute were again established. As the Law Division judge 

aptly noted, "defendant's conviction for DWI contrary to 

subsection (a) is a second conviction for the same generally 

pr[o]scribed conduct, DWI." Analogizing this matter to Reiner, 

we believe that the heightened penalties that apply as a 

consequence of being a second, rather than a first, offender 

under subsection (a) "fulfill[] the legislative intent with 

regard to the punishment of repeat DWI offenders." Reiner, 

supra, 180 N.J. at 320. Accordingly, the heightened penalties 

applicable to a second offender pursuant to N.J.S.A. 39:4-

50(a)(2) were properly imposed. 

 Defendant's remaining argument that it was not established 

that the Manchester Municipal Court had jurisdiction over this 

matter, raised for the first time in this appeal, lacks 

sufficient merit to warrant discussion. R. 2:11-3(e)(2). 

 Affirmed. The stay of the sentence is vacated and the 

matter is remanded to the Law Division for imposition of 

sentence.