Opinion
DOCKET NO. A-5839-13T3
06-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ARTHUR RYAN KUREK, Defendant-Appellant.
John Menzel argued the cause for appellant. O. Nicholas Monaco argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 04-14. John Menzel argued the cause for appellant. O. Nicholas Monaco argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Arthur Ryan Kurek appeals from his convictions and sentences for refusal to submit to an Alcotest in violation of N.J.S.A. 39:4-50.2 and reckless driving in violation of N.J.S.A. 39:4-96 following trial de novo in the Law Division. Defendant asserts he was denied a speedy trial, not informed of all material consequences resulting from a refusal to submit to an Alcotest; and the State presented insufficient evidence to support a conviction for reckless driving. Additionally, defendant seeks reversal of the license suspension imposed for the reckless driving conviction. For the reasons that follow, we affirm defendant's convictions and remand for resentencing on his reckless driving conviction.
We discern the following facts and procedural history from the record. On January 16, 2011, Daniel Moeller was driving home from a Boy Scout function when he observed defendant's vehicle driving erratically — hitting snow banks on the side of the Garden State Parkway, swerving into different lanes, and ultimately bumping another car twice in the Toms River toll plaza. Moeller called 9-1-1 and reported the incident. Defendant then pulled over to the side of the toll plaza, exited the vehicle, and "stumbled to the ground."
Moeller also pulled over and could smell alcohol emanating from defendant as he laid on the ground. According to Moeller, defendant "appeared to be very inebriated." Defendant's speech was slurred and he "could not walk really on his own." Thereafter, the police arrived and arrested defendant. Defendant was later asked to perform an Alcotest which he refused to do.
Prior to his refusal, defendant was read the "standard statement" regarding potential consequences of refusing to submit to an Alcotest. These pertinent provisions of the standard statement were read to defendant:
8. According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months, but no more than 20 years. The Court will also fine you a sum of no less than $300, and no more than $2,000 for your refusal conviction.
9. Any license suspension or revocation for a refusal conviction may be independent of any license suspension or revocation imposed for any related offense.
10. If you are convicted of refusing to submit to chemical tests of your breath, you will be referred, by the Court, to an Intoxicated Driver Resource Center, and you will be required to satisfy the requirements of that Center in the same manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for your failure to do so.
Defendant was then charged with driving while intoxicated, N.J.S.A. 39:4-50 (DWI), refusing to submit to a breath test, N.J.S.A. 39:4-50.2 (refusal), and reckless driving, N.J.S.A. 39:4-96.
The parties appeared in municipal court over the span of nine hearings from April 6, 2011 through January 27, 2014. Defendant was represented by three different attorneys at various points in the litigation. The delay in proceeding to trial was largely based on defense counsel's continued adjournment requests, seeking time to acquire additional discovery outside the possession of the prosecutor. The prosecutor repeatedly informed defense counsel that all available discovery was provided. Moreover, the court permitted adjournments for defense counsel to pursue his OPRA request for video recordings of the Toms River toll plaza from the New Jersey Turnpike Authority. The trial began on April 10, 2013, with Moeller's testimony, but was not concluded.
On January 27, 2014, defendant entered a guilty plea for refusal. The municipal court judge accepted defendant's plea and granted the State's motion for a directed verdict of not guilty for the DWI charge. The judge also found defendant guilty of reckless driving, noting defendant drove
erratically; . . . hit snowbanks; . . . crossed over all three lanes of traffic on the [p]arkway . . . ; rear-ended a vehicle in front of him [at the toll plaza], not once, but twice hit that same vehicle; that all of that in combination, together with . . . [defendant] also smell[ing of] alcohol . . . ; [and] apparently [defendant] did a face-plant on the sidewalk.
Defendant was thereafter sentenced on the refusal conviction to seven months of license suspension and a subsequent six months with an ignition interlock device, fines and penalties, and twelve hours of counseling at the Intoxicated Driver Resource Center. For the reckless driving conviction, defendant was sentenced to three months of license suspension along with fines and penalties. The license suspensions were to run concurrently. Additionally, the judge granted defendant's request for a stay of the sentence pending appeal.
Defendant requested a trial de novo before the Law Division, arguing: (1) Defendant was denied a speedy trial, (2) Defendant's refusal conviction should be reversed because the standard notice statement was deficient, (3) Erratic driving does not prove defendant was driving recklessly, and (4) No forfeiture of driving privileges should be imposed against defendant.
After oral argument, the Law Division judge entered an order denying defendant's appeal. The judge found the trial was delayed for two-and-one-half years. However, he found most, if not all, of the delays were a result of defendant's attorney seeking additional discovery of items not in the possession or control of the State. Additionally, the judge found defense counsel was seeking time to obtain an expert witness on concussions, but no such expert was presented at trial. Furthermore, the judge found the speedy trial claim was not asserted by defense counsel until the trial commenced. Moreover, the judge found there was no prejudice to defendant, as Moeller's memory was not "so faded that the matter was unable to proceed."
The judge rejected defendant's claim that the standard rights form for refusal was insufficient. He reasoned that the lack of notice about an interlock device in the standard form was "inconsequential" in light of the inclusion of notice of penalties of greater consequence including license suspension.
With respect to defendant's de novo review of his reckless driving conviction, the judge found "sufficient evidence beyond really any doubt that the defendant was driving in such a manner." He principally relied on the facts that defendant's erratic driving was reported to the police by a third-party, that defendant crashed into a snow bank on the side of the highway twice and twice crashed into a car at the toll plaza, and that defendant was swerving in between three lanes.
Defendant now appeals from the Law Division order convicting him of the traffic offenses and imposing penalties, raising the following claims:
I. BOTH THE STATE AND MUNICIPAL COURT DENIED DEFENDANT A SPEEDY TRIAL WITH DELAY SO EXCESSIVE AS TO WARRANT DISMISSAL OF THE COMPLAINTS.
II. BECAUSE THE STANDARD STATEMENT USED HERE FAILED TO ADEQUATELY INFORM DEFENDANT OF THE CONSEQUENCES OF REFUSAL AS REQUIRED BY THE IMPLIED CONSENT STATUTE, THIS COURT SHOULD ACQUIT HIM OF BREATH TEST REFUSAL.
III. EVIDENCE OF MERE ERRACTIC DRIVING FAILED TO PROVE THE DEFENDANT DROVE HIS CAR EITHER RECKLESSLY OR CARELESSLY.
IV. IF THIS COURT CONVICTS DEFENDANT OF EITHER RECKLESS OR CARELESS DRIVING, HE ASKS THAT NO FORFEITURE OF DRIVING PRIVILEGE BE IMPOSED AS PART OF THE SENTENCE.
We first address defendant's speedy trial claim. The Law Division's findings with respect to speedy trial claims should be reversed "only if the court's determination is clearly erroneous." State v. Tsetsekas, 411 N.J. Super. 1, 10, (App. Div. 2009) (quoting State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977)). Our courts "have been loath to sponsor the more severe sanction of dismissal because the demands of justice require adjudications on the merits to the greatest extent possible and because of concerns for the integrity of our statutory scheme governing the operation of motor vehicles." State v. Farrell, 320 N.J. Super. 425, 447 (App. Div. 1999) (citations omitted). Nonetheless, in the event of a speedy trial violation, "dismissal of the indictment . . . is the only possible remedy." Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 2188, 33 L. Ed. 2d 101, 112 (1972).
When evaluating claims of a denial of the constitutional right to a speedy trial, a court must review and balance the four factors identified in Barker: (1) length of delay, (2) reasons for delay, (3) assertion of a speedy trial claim, and (4) prejudice to the defendant. Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117; State v. Szima, 70 N.J. 196, 201 (adopting the standard from Barker), cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976).
If a "delay exceeds one year, it is appropriate to engage in the analysis of the remaining Barker factors." State v. Cahill, 213 N.J. 253, 266 (2013). The Supreme Court has declined to set a "bright-line rule" for a maximum time of delay constituting an excessive delay. Id. at 258, 277. If there is an excessive delay without "reasonable explanation or justification . . . , speedy trial principles have been violated." Farrell, supra, 320 N.J. Super. at 453.
Delays caused by "the trial court itself . . . are attributable to the State and not to the defendant." Id. at 451. However, any delay caused or requested by the defendant "would not weigh in favor of finding a speedy trial violation." State v. Gallegan, 117 N.J. 345, 355 (1989). Additionally, "legitimate and substantial reasons for the delay in defendant's trial" would not weigh in favor of finding a speedy trial violation. State v. Marcus, 294 N.J. Super. 267, 294 (App. Div. 1996), certif. denied, 157 N.J. 543 (1998).
The court must consider whether the delays "were 'reasonably explained and justified.'" Farrell, supra, 320 N.J. Super. at 450 (quoting State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983)). A "neutral reason" for delay "such as . . . a heavy caseload, will also be weighed against the government, albeit less heavily than deliberate delay." Cahill, supra, 213 N.J. at 266.
In Cahill, after the defendant was sentenced for fourth-degree assault by auto, it took sixteen months to receive a trial date in municipal court for his related DWI charge. Id. at 257. The defendant did not claim his ability to present a defense was prejudiced. Id. at 259. Nonetheless, the Court found "the unexplained delay of sixteen months . . . [to be] inordinate and unreasonable." Id. at 258.
Here, trial was delayed for over two years. However, we disagree with defendant's claim that the reasons for delay are mainly attributable to the State. This case is unlike Tsetsekas, supra, 411 N.J. Super. at 12, where "every delay was caused by the State's failure to be ready to proceed." Specifically, the delay was largely based on defense counsel's continued adjournment requests in hopes of acquiring evidence outside the possession of the prosecutor, despite the prosecutor's repeated declaration that all available discovery was provided. Moreover, the court permitted adjournments for defense counsel to pursue his OPRA request for video recordings of the Toms River toll plaza from the New Jersey Turnpike Authority. Because the reasons for delay were largely caused by defendant, we conclude this factor does not weigh in favor of finding a speedy trial violation.
The third factor is defendant's assertion of the right to a speedy trial. Although a defendant is not obligated to "bring himself or herself to trial, it is difficult to prevail on a speedy trial claim without a timely assertion of rights." State v. Fulford, 349 N.J. Super. 183, 193 (App. Div. 2002). "[T]he assertion of a right to a speedy trial in the face of continuing delays is a factor entitled to strong weight when determining whether the state has violated the right." Cahill, supra, 213 N.J. at 266.
As a corollary, the absence of such an assertion by the defendant in the face of continuing delays "must be considered." Id. at 274. See also Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 117-18 ("We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial."); Fulford, supra, 349 N.J. Super. at 193 (holding "it is difficult to prevail on a speedy trial claim without a timely assertion of rights" where the defendant waited twenty-eight months to assert the claim).
Here, defendant did not assert his right to a speedy trial until the trial actually commenced, which was approximately two years after the first appearance in this matter. The absence of a speedy trial claim for such a duration "make[s] it difficult for [] defendant to prove that he was denied a speedy trial." Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 117-18. Therefore, we conclude this factor does not weigh in favor of finding a speedy trial violation.
The final factor, prejudice, need not be established to succeed on a speedy trial claim. Cahill, supra, 213 N.J. at 274. We note a defendant may face prejudice "from a variety of factors including 'employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like.'" Farrell, supra, 320 N.J. Super. at 446 (quoting State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976)). However, the "most serious" form of prejudice a defendant may face in this context is an impairment of his or her ability to present a defense. Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.
To be sure, defendant could have suffered some form of anxiety from the continuation of this case for over two years. However, the most important form of prejudice from which we seek to protect defendants, their ability to present a defense, was not implicated in this case. Defendant's only contention is that Moeller's memory of the incident was impaired by the delay. A review of the record and Moeller's testimony suggests otherwise, as Moeller testified clearly and with only minor discrepancies that are common among eyewitnesses. Therefore, we conclude this factor does not weigh in favor of finding a speedy trial violation.
Considering all of the Barker factors as a whole, we conclude there was no speedy trial violation in this case, and affirm that portion of the Law Division order.
Next, we address defendant's claim that the standard statement informing him of the consequences associated with refusing to submit breath samples was defective because it did not mention the ignition interlock requirement.
Defendant, citing Canadian law, also raises the claim that he was not "advised of the significant consequence of inadmissibility into Canada." We find that claim to be without merit. R. 2:11-3(e)(2). It is not required to advise a defendant of the laws of other countries. --------
We uphold the Law Division's findings if supported by sufficient credible evidence in the record. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012). However, we review purely legal issues, such as this one, de novo. Ibid.
A refusal conviction requires the State to prove beyond a reasonable doubt that:
(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.One such consequence is the ignition interlock requirement codified in N.J.S.A. 39:4-50.17.
[State v. Marquez, 202 N.J. 485, 503 (2010) (citations omitted).]
The Supreme Court, in State v. O'Driscoll, 215 N.J. 461 (2013), held that "[c]ourts should consider whether an error in the reading of the standard statement is material in light of the statutory purpose to inform motorists and impel compliance. Id. at 466. Courts must "examine 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. An immaterial variation from the standard form does not require reversal of a conviction for refusal." Ibid.
Here, defendant was not advised of being subject to the ignition interlock requirement following a license suspension for refusal. However, as we recently held in State v. Monaco, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 15), "defendant's argument that h[is] conviction should be set aside because the standard statement failed to advise h[im] of the ignition interlock requirement" is without merit. We disagree with his contention that being informed of the ignition interlock requirement would "affect a reasonable person's decision-making" after they had already been advised of the minimum seven-month license suspension requirement associated with refusal. O'Driscoll, supra, 215 N.J. at 478. Therefore, we affirm the Law Division order with respect to the standard statement.
Next, we turn our attention to defendant's claim that "evidence of mere erratic driving failed to prove that defendant drove his car either recklessly or carelessly."
Our review of a judge's factual findings following a bench trial is limited. State v. Frank, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 7). The trial judge's factual findings "must be upheld, provided they 'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). However, we review legal issues de novo. State v. Ghandi, 201 N.J. 161, 176 (2010).
A person who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving and be punished by imprisonment in the county or municipal jail for a period of not more than 60 days, or by a fine of not less than $50.00 or more than $200.00, or both.
[N. J.S.A. 39:4-96.]
Defendant concedes that "Moeller described erratic driving." He contends there is insufficient evidence in the record to show he was driving recklessly and that the judge erred by relying on a res ipsa analysis in finding him guilty of reckless driving. Defendant relies exclusively on State v. Lutz, 309 N.J. Super. 317 (App. Div. 1998), and State v. Wenzel, 113 N.J. Super. 215 (App. Div. 1971).
In Lutz, "other than the [car] accident itself, the State only presented defendant's statement that his vehicle began to slide on the wet highway and continued to do so when he tapped his brakes." Lutz, supra, 309 N.J. Super. at 327. We reversed a careless driving conviction, concluding "[t]he State presented no evidence indicating that defendant had been speeding, driving too fast for the wet road conditions, distracted or otherwise driving without due caution and circumspection." Ibid. Similarly, in Wenzel, we reversed the defendant's conviction based on what amounted to a "res ipsa doctrine." Wenzel, supra, 113 N.J. Super. at 218.
We disagree with defendant's argument that the lower court relied on a res ipsa analysis in finding him guilty of reckless driving. Here, defendant was swerving between three lanes on the Garden State Parkway and twice crashed into a snow bank on the side of the highway. He then bumped into a car at the toll plaza twice. This conduct did and "was likely to endanger a person or property" proving beyond a reasonable doubt he committed reckless driving. N.J.S.A. 39:4-96. Therefore, we affirm defendant's reckless driving conviction.
Next, we address defendant's claim that the Law Division judge erred in suspending defendant's license in connection with his reckless driving conviction, pursuant to N.J.S.A. 39:5-31.
When reviewing a sentence, we must afford trial courts "great deference and '[j]udges who exercise discretion and comply with the principles of sentencing remain free from the fear of second guessing.'" State v. Dalziel, 182 N.J. 494, 501 (2005) (alteration in original) (quoting State v. Megargel, 143 N.J. 484, 494 (1996)). If "the proper legal principles have not been applied or the facts found by the [trial] judge are not supported by the record . . . it is for the [trial] judge to resentence[.]" Id. at 501-02.
N.J.S.A. 39:5-31 provides the court with discretion to "revoke the license of any person to drive a motor vehicle, when such person shall have been guilty of such willful violation of any of the provisions of this subtitle as shall . . . justify such revocation." In the context of N.J.S.A. 39:4-96, "'willful' bespeaks a deliberate or intentional disregard of the lives and property of other in the manner in which a driver operates a vehicle." State v. Moran, 202 N.J. 311, 323 (2010). However, in N.J.S.A. 39:5-31, "'willful' suggests a deliberate violation of certain motor-vehicle statutes . . . involv[ing] a state of mind and conduct that exceed reckless driving itself." Moran, supra, 202 N.J. at 323. In other words, a license suspension arising from a reckless driving conviction requires "an aggravated form of reckless driving." Ibid.
The Supreme Court enunciated the following guidelines to consider, prior to imposing a license suspension, pursuant to the statute:
[T]he nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation; whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation; whether the defendant's conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or dependents; and the need for personal deterrence; . . . [and] [a]ny other relevant factor clearly identified by the court.
[Id. at 328-29.]
Here, the trial judge did not perform the necessary analysis promulgated by the Supreme Court in Moran prior to suspending defendant's license in connection with his reckless driving conviction. Therefore, we vacate the sentence imposed by the Law Division on the reckless driving offense and remand the matter for resentencing.
Affirmed in part; reversed and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION