Opinion
DOCKET NO. A-1020-12T2
05-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARIANNE LAMURA, Defendant-Appellant.
Annette Verdesco argued the cause for appellant (The Anthony Pope Law Firm, P.C., attorneys; Ms. Verdesco, on the brief). Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2012-040.
Annette Verdesco argued the cause for appellant (The Anthony Pope Law Firm, P.C., attorneys; Ms. Verdesco, on the brief).
Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, of counsel and on the brief). PER CURIAM
Defendant Marianne Lamura appeals the Law Division's October 23, 2012 judgment of conviction after a trial de novo for refusal to submit to breath analysis, N.J.S.A. 39:4-50.4a, and failure to keep right, N.J.S.A. 39:4-88(a), and further denying her motion for a new trial, R. 7:10-1. The Law Division imposed the same fines and penalties as did the West Caldwell Municipal Court, including a driver's license suspension for seven months and the "installation of an ignition interlock device for six months upon resumption of driving privileges[.]"
Defendant's convictions stem from a motor vehicle stop on November 5, 2011, resulting in the refusal and failure to keep right charges, as well as driving while intoxicated (DWI), N.J.S.A. 39:4-50, and DWI in a school zone, N.J.S.A. 39:4-50(g). She subsequently filed a motion to suppress, claiming the police lacked reasonable suspicion to stop her vehicle and probable cause for her arrest. The municipal court conducted an evidentiary hearing at which the State presented testimony by the arresting officer, Sergeant Darren Voelker. Defendant also testified at the hearing and presented testimony by field sobriety test expert Gilbert Snowden. The municipal court denied the motion, finding reasonable articulable suspicion to stop defendant's vehicle, and probable cause to arrest her. After a trial, the municipal court convicted defendant of the refusal and failure to keep right charges, but acquitted her of DWI, and DWI in a school zone. Defendant appealed her convictions, and moved for a new trial, before the Law Division which, as noted, denied her motion and affirmed her conviction. On appeal, defendant argues:
The parties' later stipulated to the officer's testimony from the hearing being used at trial in lieu of live testimony.
Snowden was previously employed by the New Jersey State Police as a "breath test coordinator instructor."
Point I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO REVERSE APPELLANT'S CONVICTION FOR "REFUSAL" SINCE THERE WAS A LACK OF PROBABLE CAUSE FOR SUBMISSION TO CHEMICAL TESTING FOR HER BREATH AND SHE WAS NOT INFORMED OF THE CONSEQUENCES OF FAILING TO SUBMIT.
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING APPELLANT GUILTY OF THE OFFENSE OF FAILURE TO KEEP RIGHT, IN VIOLATION OF N.J.S.A. 39:4-88.
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO GRANT APPELLANT'S MOTION FOR A NEW TRIAL.
We have considered these arguments in light of the record and applicable legal standards, and particularly the Supreme Court's recent decision in State v. O'Driscoll, 215 N.J. 461 (2013). We affirm substantially for the reasons stated in Judge Ramona A. Santiago's well written and comprehensive decision of October 23, 2012.
I.
Our standard of review requires that we uphold the decisions of the Law Division that are supported by sufficient credible evidence in the record. State v. Stas, 212 N.J. 37, 48-49 (2012) (citing State v. Locurto, 157 N.J. 463, 471 (1999)). In applying that standard, we adhere to the "two-court rule," under which "appellate courts ordinarily should not . . . alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). However, if the Law Division's findings are so clearly mistaken or unwarranted "that the interests of justice demand intervention and correction," then we may review the record "as if . . . deciding the matter at inception and make [our] own findings and conclusions." State v. Johnson, 42 N.J. 146, 162 (1964). Furthermore, "our review of purely legal issues is plenary." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011)), certif. denied, 209 N.J. 430 (2012).
II.
Defendant first argues that the State failed to establish the first and third elements of refusal to submit to a breath analysis, which the State had to prove beyond a reasonable doubt. N.J.S.A. 39:4-50.2(a), (e); State v. Marquez, 202 N.J. 485, 503 (2010); State v. Cummings, 184 N.J. 84, 95 (2005). Specifically, she argues that the State did not prove that the arresting officer had probable cause to believe she was operating her vehicle while under the influence and, therefore, to arrest her and ask her to submit to a Breathalyzer test; and, that he failed to advise her about the possibility of having an ignition interlock device (IID) installed as a consequence of her refusal. N.J.S.A. 39:4-50.4a(a). As a result, even if the police had the requisite probable cause, defendant believes her conviction should be reversed because, had she been aware of the IID requirement, she would have cooperated and taken the test.
To secure a conviction for refusal, the State must prove,
(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.
[State v. Marquez, 202 N.J. 485, 503 (2010) (citing N.J.S.A. 39:4-50.2(e), 4-50.4a(a); State v. Wright, 107 N.J. 488, 490 (1987))]
A.
After a trial de novo, the Law Division found that probable cause existed based on testimony presented in the municipal court proceedings. In reaching its decision, Judge Santiago gave "due, although not necessarily controlling, regard" to the municipal court's fact-findings and credibility determinations, Johnson, supra, 42 N.J. at 157, in light of its "opportunity to hear and see the witnesses and to have the 'feel' of the case," upon which the Law Division could not rely, Locurto, supra, 157 N.J. at 470-71 (quoting Johnson, supra, 42 N.J. at 161).
Our review of the record discloses the following facts adduced during the trial de novo in the Law Division from the record developed in the municipal court.
At approximately midnight on November 5, 2011, defendant was travelling southbound in the left-hand side of the right lane on Passaic Avenue in West Caldwell. Sergeant Voelker fell behind her in an unmarked police car. He observed defendant's vehicle cross the dividing line three times before affecting a stop. Defendant did not speed, stopped at all red lights, and did not abruptly brake. The weather was clear, and there were "hardly any" other cars on the road. Defendant denied that she was swerving. However, she also claimed she was forced to deviate from the lane to avoid debris on the road, and diverted her attention to prevent a box of food from spilling in her car.
When Voelker approached the vehicle, he noted the scent of alcohol, that defendant's eyes were bloodshot, and that she slurred her speech. He also observed that her gait was unsteady as she exited the vehicle. However, this information was neither included in his report, nor was it documented in a standard Drinking/Driving Report. Also, while defendant admitted to consuming two drinks before operating her vehicle, she attributed the scent of alcohol to the "sweet odor" of the 800 nail polish bottles in her car at the time. According to Voelker, plaintiff also could not locate her vehicle registration which Voelker could plainly see in her wallet behind her license. Plaintiff claimed that her difficulty in locating it arose because she owns three vehicles and she wanted to be sure the registration she gave to Voelker was the correct one.
Defendant works as a color matcher.
As a result of his observations, Voelker administered field sobriety tests. Voelker found that plaintiff failed to successfully perform any test: the one-leg stand, the walk-and- turn, and the horizontal gaze nystagmus (HGN) tests for sobriety. Based on his observations and the test results, Voelker arrested defendant and transported her to the police station.
Plaintiff contends that she never performed the one-leg stand test; that Voelker failed to note or account for her heeled shoes during the walk-and-turn test; and that an officer was shining a light in her face during the HGN test. Moreover, according to Snowden, Voelker failed to provide correct instructions during the tests. Specifically, during the one-leg stand, he should have advised plaintiff that she could choose which leg to balance on. He should also have advised plaintiff to look down at her feet during the walk-and-turn, to give her a better opportunity to comply. Finally, during the HGN, he should have held the stimulus at maximum deviation for four seconds rather than two, to eliminate any involuntary jerking of the eyes which might be interpreted as a clue of intoxication. Snowden said that the tests were less reliable when administered improperly.
The Law Division found that Voelker had sufficient probable cause to place defendant under arrest and to request a breath sample. The court granted that the reliability of field sobriety tests was "somewhat" reduced when the tests were administered improperly. However, it found that "no sobriety test is a prerequisite for determining intoxication, and an officer can make a valid finding without the benefit of any field sobriety tests." See State v. George, 257 N.J. Super. 493, 496-97 (App. Div. 1992) (finding sufficient cause to arrest where defendant performed tests "without error" but was found behind steering wheel with odor of alcohol on breath); State v. Grant, 196 N.J. Super. 470, 474-77 (App. Div. 1984) (finding probable cause to arrest where defendant did not perform tests but had difficulty balancing, bloodshot eyes, flushed face, and strong odor of alcohol on breath).
Similarly, the court found that Voelker's failure to document all of his observations did not negate the existence of probable cause. While he did not include certain details as to defendant's appearance and demeanor, Voelker did report his observations of defendant's erratic driving, her performance on the field sobriety tests, and her admitting to drinking prior to driving. As the court noted, probable cause has been found under similar circumstances, see, e.g., State v. Breslin, 392 N.J. Super. 584, 588-89 (App. Div.) (finding probable cause "based upon defendant's erratic driving, the odor of alcohol, failure to perform the field sobriety tests, and swaying while walking to the trooper's vehicle"), certif. denied, 192 N.J. 477 (2007), and based on less, State v. Reynolds, 319 N.J. Super. 426, 430-31, 434 (App. Div. 1998) (based on odor of alcohol in car, smell of breath, and failure to look officer in the eye); In re Garber, 141 N.J. Super. 87, 92 (App. Div.) (based on odor of alcohol, bloodshot eyes, rambling speech, lack of balance, and car on wrong side of road), certif. denied, 71 N.J. 4 94 (1976).
We are satisfied that the record contained substantial evidence to support Judge Santiago's finding that probable cause existed. In finding probable cause, a court must look to the totality of the circumstances, State v. Moore, 181 N.J. 40, 46 (2004) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983); State v. Novembrino, 105 N.J. 95, 122 (1987)), "and view those circumstances from the standpoint of an objectively reasonable police officer," State v. Basil, 202 N.J. 570, 585 (2010) (quoting Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775-76 (2003)) (internal quotation marks omitted). Probable cause for DWI exists where an officer has a well-founded suspicion that an offense has been committed, State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (citing State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985)), meaning the officer "'had reasonable grounds to believe' that the driver was operating a motor vehicle in violation of" the DWI statute, ibid. (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)).
Judge Santiago's conclusions were well supported by Officer Voelker's testimony about his observations of defendant, her speech, eyes, inability to maintain lanes while driving, and her admission that she drank alcohol right before operating her vehicle. Furthermore, the results of the field sobriety test provided additional substantial evidence for Judge Santiago to rely upon, and her rejection of defendant's expert testimony did not render her conclusion legally defective. State v. Cryan, 363 N.J. Super. 442, 457 (App. Div. 2003).
We find no obvious or exceptional error here giving us any reason to disturb the Law Division's judgment. Locurto, supra, 157 N.J. at 474.
B.
As noted, defendant also challenged her being properly advised of the IID consequences of her refusing to take the Breathalyzer test. N.J.S.A. 39:4-50.4a(a). Following her arrest, Voelker read to defendant from the "New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle," (Standard Statement) setting forth the consequences of refusing to submit to a breath analysis. N.J.S.A. 39:4-50.2(e). The Standard Statement he read from did not refer to the installation of an IID, which was adopted as a mandatory consequence for refusal in 2010. N.J.S.A. 39:4-50.4a(a), 50.16, 50.17. Based on that omission, defendant argues that she was not adequately "informed," of the consequences of refusing to submit to a breath analysis, as required for a conviction. Marquez, supra, 202 N.J. at 503 (citing N.J.S.A. 39:4-50.2(e), 4-50.4a(a); Wright, supra, 107 N.J. at 490).
. . . No chemical test . . . or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with [the refusal statute.] A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest.
[N.J.S.A. 39:4-50.2(e).]
Ignition interlock devices, which permit a motor vehicle to be started only when the driver is sober, offer a technically feasible and effective means of further reducing the incidence of drunk driving. The use of these devices was initiated in California in 1986[.]
. . . The judicious deployment of ignition interlock devices . . . will enhance and strengthen this State's existing efforts to keep drunk drivers off the highways.
[N.J.S.A. 39:4-50.16(b), (c)]
Judge Santiago determined that "installation of the [IID] is a collateral consequence and rehabilitative in nature." The judge also noted that the IID did not deprive defendant of her driving privileges. Therefore, the court found that "the absence of the [IID] from the standard statement does not render the statement invalid." See State v. Bellamy, 178 N.J. 127, 137 (2003) (finding a defendant need not be informed of the "collateral" consequences of a plea).
The court further noted that New Jersey motorists are deemed to have consented to submit to a breath analysis under the implied consent law. N.J.S.A. 39:4-50.2(a). Thus, the Standard Statement's aim is not to assist drivers in deciding whether to comply, but to "ensure that defendants understand the mandatory nature of the Breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." State v. Widmaier, 157 N.J. 475, 489 (1999). Judge Santiago, therefore, found that defendant's claim she "would have done things differently" had she known of the IID was "immaterial." Accordingly, she found that defendant was properly "informed" of the consequences, and affirmed defendant's conviction for refusal.
Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of [the refusal statute.]
[N.J.S.A. 39:4-50.2(a).]
We agree with the judge's conclusion, especially in light of our Supreme Court's consideration of a similar issue in O'Driscoll, supra, 215 N.J. at 465. The defendant there challenged his refusal conviction based on his arresting officer's reading to him from an outdated form that misstated three parts of the potential penalty: that the minimum period of revocation was six months, and not seven; the minimum fine was $250, not $300; and the maximum fine was $1000, not $2000. Id. at 465, 468. The Court rejected the defendant's argument, holding that the effect of an error in reading from an outdated Standard Statement was subject to a court first determining whether the error was material, as "[a]n immaterial variation from the standard form does not require reversal," id. at 466, because "[t]he language of the implied consent statute . . . does not require absolute precision." Id. at 476.
In determining whether a reversal is warranted, a court should "consider whether the error is material in light of the statutory purpose to inform motorists and impel compliance." Ibid. The appropriate inquiry is "whether a defendant reasonably would have made a different choice and submitted to a breath test had the officer not made an error in reciting the statement." Id. at 466. The test "requires a case-by-case evaluation of the facts." Id. at 478.
Applying these principles in O'Driscoll, the Court found that the errors, relating to the license suspension period and potential fines, to be immaterial. Id. at 479. The court was "highly doubtful" that these "minor discrepancies" could reasonably have affected the defendant's choice. Ibid. Thus, the officer adequately informed the defendant within the meaning of the statutes. Ibid.
As compared to the case at hand, it is obvious that the O'Driscoll Court addressed more significant consequential errors than that presented here, and nonetheless found them to be "inconsequential." Ibid. Also, like Judge Santiago, we find it difficult to accept that the omission of the IID penalty could reasonably have influenced defendant's decision, especially because she was adequately apprised of all other penalties, including the more severe consequence of license revocation, and still refused to take the test.
We therefore agree with Judge Santiago that the omission of the IID installation from the Standard Statement was immaterial, and does not warrant a reversal.
III.
Defendant also argues that the State failed to meet its burden to prove beyond a reasonable doubt that she failed to keep right. N.J.S.A. 39:4-88(a) requires that "[a] vehicle shall normally be driven in the lane nearest the right-hand edge or curb of the roadway when that lane is available for travel, except when overtaking another vehicle or in preparation for a left turn." Defendant specifically contends that the right lane was not "available for travel." She testified that she was forced to avoid debris in the road that was left there after a severe storm. At trial, the municipal court took judicial notice that a storm occurred a week before the incident. However, Voelker denied encountering any debris on the road, and defendant admitted she had difficulty maintaining her lane because her attention was focused on preventing food from spilling in her car.
The municipal court rejected defendant's version and credited Voelker's testimony that the right lane was unobstructed and "available for travel," and convicted defendant of failure to keep right. The Law Division accorded due deference to the municipal court's findings, State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (citing Locurto, supra, 157 N.J. at 474), and entered its own judgment of conviction after the trial de novo. Again, we defer to those findings under the two-court rule, absent a showing of any obvious or exceptional error. Locurto, supra, 157 N.J. at 474.
There was no such showing in this case. There was ample evidence in the record upon which the court relied in accepting Voelker's version of events over defendant's. In her testimony, defendant simultaneously denied and excused her swerving. Moreover, the storm occurred a week before the night in question. We do not discern any obvious or exceptional error in the court rejecting defendant's testimony or in the its entry of a judgment of conviction.
IV.
Finally, defendant challenges Judge Santiago's refusal to grant her a new trial based on alleged newly discovered evidence. Defendant relies on the "evidence" established after her municipal court conviction by the Attorney General issuing a revised Standard Statement incorporating mention of the IID, effective July 1, 2012. See N.J. Office of Attorney Gen., Standard Statement for Motor Vehicle Operators (July 1, 2012), available at http://www.nj.gov/oag/dcj/njpdresources/dui/pdfs/ english1.pdf. The court denied her motion because it found that the revised Standard Statement constituted new evidence. We agree.
Rule 7:10-1 provides that a new trial may be granted based on newly discovered evidence. To this end, a party must show that the evidence 1) is "material, and not 'merely' cumulative, impeaching or contradictory"; 2) was newly discovered after completion of the trial, and could not have been discovered "by reasonable diligence beforehand"; and 3) would likely change the outcome if a new trial were granted. State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)) (internal quotation marks omitted).
The Law Division denied defendant's application because a revised statement is not the type of material that typically constitutes "newly discovered" evidence; defendant cited no case law indicating that the amendment could be newly discovered evidence; and even assuming defendant could satisfy the first and second elements of the standard, there is no reason to believe that the amended statement would have exonerated defendant.
On appeal, defendant does not cite to any authority in support of her argument. Even if she could, it would not impact our decision because, as we already determined, the failure to advise defendant about the IID requirement was immaterial, and, therefore, the admission of the new Standard Statement would not change the outcome in this case.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION