Opinion
DOCKET NO. A-0919-14T3
04-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAWRENCE CLEAVER, Defendant-Appellant.
Albert P. Mollo, attorney for appellant. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Suter. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-025-U. Albert P. Mollo, attorney for appellant. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from his conviction of driving while intoxicated ("DWI"), N.J.S.A. 39:4-50. He was found guilty of that offense in a trial in the municipal court, a result which was sustained on de novo review in the Law Division. Defendant's essential claim on appeal is that the Law Division's de novo review of his municipal conviction was unduly delayed and that he was thereby deprived of his right to a speedy trial. We affirm.
The record shows that on August 28, 2011, defendant went out for a drive in his pickup truck in the midst or aftermath of Hurricane Irene. He encountered flood waters on the local streets in Pequannock Township and his vehicle stalled and began to float. He was rescued from the roof of his floating truck after a neighbor recognized him and called 9-1-1. The rescuers observed that defendant had a strong odor of alcohol, bloodshot eyes, and displayed other signs of intoxication. Defendant admitted to drinking five beers between 8:00 p.m. and 10:00 p.m. that evening. After defendant failed several field sobriety tests, he was arrested and provided a breath sample that measured .16 blood alcohol content, over the legal limits.
Defendant moved before the municipal court to suppress the breath test results. The municipal judge denied suppression. The judge considered the proofs during the course of two intermittent trial days in December 2011 and January 2012 and found defendant guilty of DWI, both under the per se standard and based on the field observations.
Defendant was sentenced to a nine-month loss of his driver's license and other penalties and consequences. His sentence was stayed pending appeal. The judgment of conviction in the municipal court was entered on January 9, 2012.
On January 26, 2012, defendant filed a de novo appeal with the Law Division. Among other things, he argued that he had been deprived of discovery on the Alcotest "return and repair" forms from the manufacturer. The county prosecutor got involved and filed a motion with the Superior Court to supplement the record with the return and repair forms. Evidently the municipal prosecutor disagreed with the county prosecutor's willingness to provide the discovery, which led to some of the delay that is involved here. The Law Division judge who was then handling the case granted the State's motion to supplement the record.
On July 31, 2012, the Law Division remanded the matter back to the municipal court for an evidentiary hearing to determine the admissibility of the Alcotest return and repair records and to evaluate whether they satisfied the business record hearsay exception under N.J.R.E. 803(c)(6).
On December 10, 2012, the municipal judge on remand conducted a hearing, at which the municipal prosecutor declined to join in the county prosecutor's application to supplement the record. Shortly thereafter, on December 27, 2012, defendant filed his second notice of appeal with the Law Division seeking review of the municipal judge's determination that the Alcotest return and repair log was admissible hearsay. A briefing schedule was then established. Defense counsel expressed his understanding that the Law Division would be remanding the case back again to the municipal court. The State objected to the remand.
There was apparently no activity in the case for nearly a year from about May 2013 until May 20, 2014. On that day, the parties appeared before the Law Division for a status conference. At the conference, defendant raised the speedy trial issue for the first time. Thereafter, on September 9, 2014, the Law Division judge conducted a trial de novo. The judge found defendant guilty of DWI based solely on the observations of his conduct and not relying on the Alcotest results, which she suppressed.
Defendant argued before the Law Division that he had been deprived of his right to a speedy trial, principally citing the United States Supreme Court's seminal opinion in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) and the New Jersey Supreme Court's opinion in State v. Cahill, 213 N.J. 253 (2013) (applying the Barker v. Wingo factors to a DWI prosecution).
The Law Division judge examined all of the pertinent Barker factors and issued a written statement of reasons ruling that defendant had not been deprived of his right to a speedy trial. Although the judge recognized that some of the delay in completing the de novo review was attributable to the State, on balance the defendant had not shown sufficient prejudice to compel relief, or any deliberate motive by the government to deprive him of his rights.
On appeal, defendant presents the following arguments for our consideration:
POINT I: DEFENDANT-APPELLANT WAS DENIED A SPEEDY TRIALHaving fully considered these arguments, we affirm defendant's conviction, substantially for the sound reasons expressed in the Law Division's comprehensive written statement of reasons. We add only a few observations.
A. Length of the Delay
B. Reasons for the Delay
C. Assertion of Right to a Speedy Trial
D. Prejudice to the Defendant
POINT II: THE TRIAL JUDGE DENIED DEFENDANT-APPELLANT'S RIGHT TO A PRESUMPTION OF INNOCENCE
POINT III: THE STATE HAS NOT PROVEN VIOLATION OF N.J.S.A. 39:4-50 BEYOND A REASONABLE DOUBT
A. The State did not Prove Intoxication Beyond a Reasonable Doubt
B. The State did not Prove Operation Beyond a Reasonable Doubt
POINT IV: DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL
We must first highlight that defendant does not claim that he was deprived of a speedy trial in the municipal court. Nor could he reasonably make such an assertion given the short interval between his arrest in late August 2011 and his municipal trial which began in December 2011. His focus instead is upon the delay that transpired after he appealed his municipal conviction to the Law Division and the Law Division's ultimate disposition of that appeal on de novo review in September 2014.
We are mindful that our case law has recognized that not only does a DWI defendant have a right to a speedy trial of the charges in the municipal court, but the defendant also should not be unduly delayed in obtaining the Law Division's de novo review if he is convicted by the municipal judge. State v. Misurella, 421 N.J. Super. 538, 544 (App. Div. 2011); State v. LeFurge, 222 N.J. Super. 92, 98 (App. Div.), certif. denied, 111 N.J. Super. 568 (1988). Defendant claims that the operative delay here is the two years, eight months, and eight days from the date of his arrest to the date defendant was first notified of the May 2014 status conference, while the State focuses instead on the nearly twenty-one-month delay from defendant's second notice of appeal in December 2012 until the status conference. Regardless of which starting date is chosen for the analysis, we agree with the Law Division judge that defendant has not demonstrated that his interests in a speedier disposition of his de novo appeal were sufficiently curtailed to justify the vacature of his conviction.
A third possibility not advocated by either party is to use the May 14, 2013 filing date of defendant's amended second notice of appeal. --------
The four well-established factors identified in Barker for speedy trial analysis are: "[1] [the] [l]ength of delay, [2] the reason for the delay, [3] the defendant's assertion of his right, and [4] [the] prejudice to the defendant." Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. "The [Barker] Court regarded none of the four factors as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Rather, they were to be treated as related factors to be considered with such other circumstances as may be relevant." State v. Szima, 70 N.J. 196, 201 (1976). Put another way, since the factors are related, none are determinative and even the absence of one or more does not exclude a finding that a defendant's rights were violated. See Cahill, supra, 213 N.J. at 267.
We are satisfied that the Law Division did not misapply these Barker factors in its detailed decision. Although the delay in completing the de novo review process in the Law Division was uncommonly lengthy here, there were extenuating circumstances, including the need to remand this matter for a period of time to the municipal court on the hearsay issue relating to suppression. There was also some degree of uncertainty that all parties apparently shared about whether the municipal court or the Law Division was exercising jurisdiction at certain times, and what the next procedural step would be. We find it particularly significant that there is no indication that defendant took any action between his correspondence to the court about the case in May 2013 and the May 2014 conference to seek the Law Division's attention to the continued pendency of the unresolved appeal.
Moreover, as the Law Division judge noted, "there is no evidence that the State attempted to delay the case in order to hamper the defense." In addition, she also astutely observed that "rather than challenge the adequacy of the State's evidence in a trial de novo, the remand issue was prolonged when defendant filed a new appeal of the municipal court's ruling." Although we agree with the Law Division judge that the unexplained subsequent twelve-month delay between May 2013 and May 2014 was unreasonable and weighs in defendant's favor, on the whole he has not demonstrated entitlement to relief under the Barker factors when considered in their entirety.
In Misurella, we concluded that a delay of twenty-seven months in adjudicating that defendant's de novo appeal did not require his DWI conviction to be set aside, despite the fact that a substantial portion of that delay was attributable to the State. Misurella, supra, 421 N.J. Super. at 544-45. Here, as in Misurella, defendant did not assert his right to a speedy trial until late in the process and during that time period his loss of driving privileges was stayed. Moreover, defendant, like the defendant in Misurella, has failed to demonstrate that he was prejudiced by the delay in awaiting de novo review. As we noted in Misurella, "[t]he 'hardship' of waiting for disposition of [defendant's] appeal [de novo], standing alone, 'is insufficient to constitute meaningful prejudice.'" Id. at 546 (citing LeFurge, supra, 222 N.J. Super. at 99-100).
As to defendant's secondary argument that the evidence of his guilt of DWI was insufficient, we agree with the State that defendant's manifest signs of intoxication when he was extracted from his floating truck, coupled with his admission of drinking five beers that evening, are ample to sustain the conviction. Defendant was observed by an eyewitness operating his truck before it stalled, attempting to make a left hand turn onto Greenwood Avenue. The municipal judge found that eyewitness to be credible, and we defer to that credibility finding. State v. Locurto, 157 N.J. 463, 474 (1999). The direct and circumstantial evidence of operation of the truck, in violation of N.J.S.A. 39:4-50, is more than sufficient here. See State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005).
The remainder of defendant's arguments lack sufficient merit to discuss in this opinion. R. 2:11-3(e)(2).
Defendant's conviction is affirmed. Any stay of penalties or of the suspension of his driving privileges that may remain in place shall expire automatically within twenty days of this opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION