State v. Tekel, 281 N.J. Super. 502 (App. Div. 1995).
Under statute mandating an enhanced sentence for
refusal to take a breath test, N.J.S.A. 39:4-50.4a,
“subsequent offenses” are not limited to refusals but
include operating a car while under the influence.
State v. Fornino, 223 N.J. Super. 531 (App. Div.
1988), found the report of the Criminal Law Revision
Commission, which described the intent of the attempt
provisions of the Code of Criminal Justice, instructive in
determining whether there was sufficient evidence from
which the jury could conclude an attempt had been
committed. The court concluded that form the
expanded scope of attempt liability, as revealed by the
report, there was sufficient evidence for the jury to find an
attempt had been committed. (See also, ATTEMPT, this
Digest).
Fasching v. Kallinger, 211 N.J. Super. 26 (App. Div.
1986).
Monies earned by the author or publisher of a
biography of a convicted murderer were not subject to the
forfeiture provisions of N.J.S.A. 52:4B-26 et seq., as they
were not “agents” within the meaning of the statute
which was designed to prevent perpetrators of sensational
crimes from benefitting from their acts. The Court
reached this conclusion after examining the plain
language of the statute, its structure, function, title,
legislative history and interpretations accorded the
statute by the Attorney General and Violent Crimes
Compensation Board.
State v. Bill, 194 N.J. Super. (App. Div. 1984). A
conviction of fourth degree aggravated assault for
knowingly pointing a firearm at another, N.J.S.A. 2C:12-
1b(4), does not require proof that a gun must actually be
loaded. Examining the plain language of N.J.S.A. 2C:39-
1f, the court found that the definition of a firearm did not
include a requirement that the weapon, i.e., a gun, be
loaded. The court also reviewed the code’s legislative
history to determine the meaning of the following
language in N.J.S.A. 2C:12-1b(4): “whether the actor
believes it (the gun) to be loaded.” It held that this
language did not refer to the condition of the firearm, but
negated a defense that because the defendant believed the
gun to be unloaded, he lacked the requisite criminal state
of mind. Finally, as shown by enactment of the Graves
Act, the legislature intended that crimes committed with
firearms warranted harsher sentences than those without.
Accordingly, the trial court improperly downgraded two
fourth degree aggravated assault counts to simple assault.
Bill overruled the interpretation of N.J.S.A. 2C:12-1b(4)
set forth in State v. Diaz, 190 N.J. Super. 639 (Law Div.
1983).State v. Grant, 196 N.J. Super. 470 (App. Div. 1984).
Imposition of an enhanced penalty under N.J.S.A. 39:4-
50.4a does not require a second conviction of driving
while intoxicated. Although penal statutes should be
strictly construed, the court here determined that
nothing in the legislative history suggested that a second
conviction of driving while intoxicated was a prerequisite
to treating the defendant in this case as a subsequent
offender. N.J.S.A. 39:4-50.4a.State v. Duva, 192 N.J. Super. 418 (Law Div. 1983).
A second conviction under N.J.S.A. 39:3-40 (driving
after a license has been revoked) mandates imposing a fine
and a term of imprisonment. The plain language of a
statute best reflects the legislature’s intent. N.J.S.A.
39:3-40b expressly provides that a second offender
“shall” be subject to a fine and a term of imprisonment.
Nothing in the statute or the legislative history suggests
that the sentencing court had discretion whether or not
to impose a period of imprisonment.E. Presumption to Aid ConstructionState v. Hamm, 121 N.J. 109 (1990). Third offense
of driving while intoxicated which imposed penalties of
$1,000 fine, 10 years license suspension, up to 90 days
community service and 180 days detainment or
incarceration in County Jail was not so packed with
onerous penalties as to reflect legislative determination of
constitutionally serious offense requiring jury trial.State v. O’Connor, 105 N.J. 399 (1987). A split
sentence (a sentence of imprisonment to County Jail
imposed as a condition of probation) is not long enough
to fall within the presumptive sentence range for a second
or third degree sentence. As such, a split sentence cannot
be imposed for a second or third degree offense.State v. Michalek, 207 N.J. Super. 340 (Law Div.
1985). Although there may be occasions when strict
criminal liability is called for, the presumption is to the
contrary. N.J.S.A. 2C:2-2c(3).F. Implied Repeals of StatutesRodriguez v. United States, 480 U.S. 522, 107 S.Ct.
1391, 94 L.Ed. 2d 533 (1987). Repeals of statutes by
implication are not favored. Unless an intent to repeal is
“clear and manifest,” a repeal by implication will not be
found. The United States Supreme Court, in