State v. CareyState v. Carey
Defendant Andrew Carey pleaded guilty in the Tinton Falls Municipal Court to driving while intoxicated,
On appeal defendant contends:
1. The municipal court erred in permitting the State to admit a computer print-out which is hearsay. A Division of Motor Vehicle Abstract is the public document required to enhance the penalties of defendant. Therefore, defendant must be sentenced as a first offender.
2. The Superior Court, Law Division, erred by allowing the State to admit new evidence at а trial de novo.
Preliminarily, we observe that there are two phases to every criminal and quasi-criminal matter: (1) the determination of guilt or innocence and (2) the imposition of sentence. The rules of evidence apply to the former but are relaxed as to the latter. For example,
Computer-generated material has reached general acceptanсe in both the private and public sector and has been used by the courts not only on sentencing matters but as substantive evidence in criminal and civil proceedings. See Admissibility of
The rules оf evidence apply to the determination of the innocence or guilt of defendant, not the sentencing phase where the judge must, of necessity, consider all relevant information in imposing a proper lеgal and just sentence.1 As the U.S. Supreme Court said in Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949):
Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American
colonies became a nation, cоurts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be impоsed within limits fixed by law. Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders. A recent manifestation of the historical latitude allowed sentencing judges appears in Rule 32 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. That rule provides for consideration by federal judges of reports made by probation officers containing information about a convicted defendant, including such information “as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant....”In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal cоnduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the partiсular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue оf guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issuе of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant‘s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial. [337 U.S. at 246-247, 69 S.Ct. at 1082-1083; footnotes omitted].
The philosophy of sentenсing and the consideration of non-evidentiary matters espoused by Williams was accepted by our Supreme Court in State v. Green, 62 N.J. 547, 566 (1973). There, the court said that the restrictive rules of evidence applicable to a trial should not deny a sentencing judge the opportunity to оbtain the information required in performing the task of sentencing. Id. at 566. In State v. Humphreys, 89 N.J. 4, 14 (1982), Justice O‘Hern recognized that “[t]he whole person concept authorizes the sentencing court to comprehend in its deliberations a wide range of information that might
We also determine that the Law Division judge properly allowed the corrеcted DMV certified abstract confirming defendant‘s status as a second offender. The Law Division judge in the de novo proceedings may not enhance the record as to the evidence concerning innocence оr guilt. State v. Musgrave, 171 N.J. Super. 477, 479 (App.Div. 1979); State v. Hardy, 211 N.J. Super. 630, 634 (App.Div. 1986). However, when the judge imposes sentence in the de novo proceedings, the enhancement prohibition addressed in Musgrave and Hardy above do not apply since the sentence of defendant must be redetermined by the Law Division judge who has the power to modify, lower or increase the sentence within the limits imposed by law. State v. Mull, 30 N.J. 231, 239 (1959).
Defendant has not dеnied that this is his second conviction for drunk driving. Rather, his position is that the evidence of the first violation was improperly admitted. To follow that faulty logic would result in the imposition of a legally improper sentence. Clearly, a second conviction of a violation of
For a second violation, a person shall be subject to a fine of not less than $500 nor more than $1,000, and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on such terms as the court shall deem appropriate under the circumstances, and shall be sentenced to imprisonment for a term of not less than 48 cоnsecutive hours, which shall not be suspended or served on probation, nor more than 90 days, and shall forfeit his right to operate a motor vehicle over the highways of this State for a period of two years upon conviction.... [ N.J.S.A. 39:4-50(a)(2) ].
The term “shall” used here indicates that the penalties are mandatory. The judge was compelled to sentence defendant as a second offender. The Law Division judge properly admitted the corrected DMV abstract which only confirmed the accuracy of the computer print-out.
Affirmed.
Notes
We recognize that there is some debate concerning the term “competent credible evidence” used by thе Supreme Court in State v. Roth, 95 N.J. 334, 364-365 (1984). There, proper sentencing guidelines were considered under the new Criminal Code. In using the term “competent credible evidence in the record” the Supreme Court did not challenge the matters considered by the trial judge at sentencing. The court merely stated that the evidence considered was improperly focused. That case instructed trial courts to shift the focus of mitigating and aggravating factors from the defendant to the crime and apply the guidelines accordingly. Id. at 366-367.
Competent means: “Duly qualified; answering all requirements; having sufficient ability or authority; possessing the requisite natural or legal qualifications; able; adequаte; suitable; sufficient; capable; legally fit.” (Citations omitted). Black‘s Law Dictionary, 355 (4th ed. 1968).
In State v. Davis, 96 N.J. 611 (1984), the Supreme Court recognized that competency, relevancy and admissibility are separate and distinct evidentiary qualifications. See id. at 617. Competenсy is only one element of admissibility: A person‘s testimony may be incompetent because he is unable to accurately communicate.
As applied here, the constraint of “competent credible evidence” found in Roth does not bar the consideration of the computer print-out. The print-out was clear, legible and understandable as well as reasonably trustworthy. (See note 2).