State v MARTENS,
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN MARTENS,
Defendant-Appellant.
_________________________________
December 6, 2016
(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0
Before Judges Leone and Vernoia.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 12-04-15.
Law Offices of Robert J. Pinizzotto, LLC, attorneys for appellant (Robert J. Pinizzotto and Nicole E. Wise, on the briefs).
Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Sevan Biramian, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant John Martens appeals from a July 17, 2015 Law Division order, entered after a de novo hearing on a municipal appeal, finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.
I.
Just prior to 6:00 a.m. on June 22, 2014, Absecon Police Officer Paolo Imberti received a report that a vehicle was on fire and the vehicle's driver was leaving the area. Imberti arrived and observed a vehicle with damage to the front driver's side, flat tires on the front and rear driver's side, and smoke coming from the deployment of the vehicle's airbags.
Imberti observed one person in the area, later identified as defendant, walking quickly from the location of the vehicle. Officer Imberti drove to defendant's location and exited his patrol vehicle. At the same time, another officer arrived at defendant's location and exited his vehicle. The officers approached defendant and Imberti observed defendant swaying.
Defendant identified himself and initially told Imberti that he was "just going for a walk." Imberti asked if defendant was the owner of the vehicle and defendant "initially hesitated, but [then] stated yes." In response to further questioning by Imberti, defendant acknowledged no one else had been in vehicle and he was involved in an accident with the median on the roadway.
Imberti detected the odor of alcohol and observed defendant's speech was slurred and his eye movements were slow. Imberti administered field sobriety tests and placed defendant under arrest. Defendant was transported from the scene and administered a chemical breath test that revealed a blood alcohol content of .17 percent. Defendant was issued summonses for DWI; reckless driving, N.J.S.A. 39:4-96; failing to maintain a lane, N.J.S.A. 39:4-88; and abandoning a vehicle, N.J.S.A. 39:4-56.6.
Defendant moved for suppression of the statements he made to Imberti, claiming the officers failed to advise him of his Miranda1 rights. The court conducted a N.J.R.E. 104 hearing and denied defendant's motion.
At the commencement of defendant's trial, he moved for the recusal of the municipal court judge and municipal prosecutor, and requested the court declare the statutory scheme for New Jersey's municipal courts unconstitutional. The judge denied defendant's motions and the matter proceeded to trial.
The State presented the testimony of Imberti concerning his observations at the scene, defendant's statements following Imberti's arrival, defendant's performance on the field sobriety tests, and the results of defendant's chemical breath test. Imberti also testified concerning the documents supporting the admission of the results of defendant's chemical breath test. The court rejected defendant's objection to the admission of the documents and the results of his chemical breath test.
Defendant entered a conditional plea of guilty to DWI thereby reserving his right to challenge on appeal the court's denial of his motions to suppress his statements, for recusal of the judge and municipal prosecutor, and for a declaration that the statutory scheme for municipal courts is unconstitutional. Defendant also reserved the right to challenge the court's decision overruling his objection to the admission of his chemical breath test results.
The court accepted the plea of guilty to DWI and sentenced defendant as a third-time DWI offender to a custodial term of 180 days, a ten-year license suspension, a one-year maintenance of an ignition interlock device, twelve hours in the Intoxicated Driver Resource Center, a fine of $1006, and surcharges and fees of $358. Defendant's remaining charges were conditionally dismissed, and his incarceration was stayed pending his appeal to the Law Division.
Defendant appealed to the Law Division which conducted a trial de novo. The judge denied defendant's motions and overruled defendant's objection to the admission of the results of the chemical breath test. The court found defendant guilty of DWI based upon his plea and imposed the same sentence as the municipal court. The judge also stayed defendant's incarceration "pending disposition by the Supreme Court of New Jersey in State v. Denelsbeck," which at the time of the Law Division's decision was pending, but which was subsequently decided. 225 N.J. 103 (2016). This appeal followed.
On appeal defendant raises the following arguments.
POINT I THE COURT ERRED IN DENYING DEFENDANT'S MOTION SEEKING RECUSAL OF THE MUNICIPAL COURT JUDGE WHO SAT BELOW.
POINT II
THE STATUTORY SCHEME OF THE MUNICIPAL COURT IN THE STATE OF NEW JERSEY VIOLATE[S] THE RIGHTS OF THE DEFENDANT TO DUE PROCESS UNDER THE CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION OF THE STATE OF NEW JERSEY.
POINT III THE COURT ERRRED BY DENYING DEFENSE COUNSEL'S REQUEST FOR THE COURT TO RECUSE THE MUNICIPAL PROSECUTOR: THE MUNICIPAL PROSECUTOR IS NOT A FAIR AND IMPARTIAL ADVOCATE AS REQUIRED BY NEW JERSEY'S SYSTEM OF JUSTICE AND MUST BE DISQUALIFIED/RECUSED FROM PROSECUTING THE WITHIN MATTER.
POINT IV THE OFFICER WAS REQUIRED TO ADVISE THE DEFENDANT OF HIS RIGHTS PURSUANT TO [MIRANDA] BEFORE QUESTIONING HIM AND THE COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS WAS IN ERROR.
POINT V THE COURT IMPROPERLY ADMITTED INTO EVIDENCE THE STATE'S "CORE FOUNDATIONAL" DOCUMENTS OVER DEFENSE OBJECTION, AND THUS, IMPROPERLY ADMITTED DEFENDANT'S BREATH TEST RESULT
II.
On an appeal taken from the Law Division's final decision, our review "is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). Our review of the Law Division's legal determinations or conclusions based upon the facts is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also State v. Handy, 206 N.J. 39, 45 (2011) (finding that appellate review of a trial court's legal determination is plenary).
We find no merit in defendant's contention the municipal court judge should have recused himself. Defendant argues that trial courts cannot be impartial in DWI cases because our Supreme Court has adopted the Legislature's policy goal of eradicating drunk driving. He claims that in State v. Tischio, 107 N.J. 504, appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988), and In re Collester, 126 N.J. 468 (1992), our Supreme Court expressed an "unequivocal and explicit bias" in favor "of eradicating drunk drivers" on the roadways, that municipal courts are bound to effectuate the bias, and that the bias deprived defendant of due process under the United States and New Jersey Constitutions. Defendant argues the bias would cause a reasonable, fully informed person to have doubts about a trial judge's impartiality and therefore recusal of municipal court judges is mandated in all DWI cases.2
Defendant's claim of judicial bias is based in part on dicta in Tischio that "the Legislature, working in tandem with the courts, has consistently sought to streamline the implementation of [various DWI] laws and to remove the obstacles impeding the efficient and successful prosecution of those who drink and drive," Tischio, supra, 107 N.J. at 514, and in Collester that "firmly endors[ing] the governmental commitment to the eradication of drunk driving as one of the judiciary's own highest priorities." Collester, supra, 126 N.J. at 473. Defendant's argument is devoid of merit, however, because he ignores the context in which the Court's statements were made and, by doing so, relies upon a meaning that is unsupported by the Court's decisions.
The Court's statement in Tischio did not express or require a bias for trial courts' decision-making in DWI cases. The statement was merely part of the Court's description of its role in interpreting DWI statutes to give effect to "the dominant legislative purpose to eliminate intoxicated drivers from the roadways of this State." Tischio, supra, 107 N.J. at 514.
Collester involved a judicial misconduct proceeding where the judge pled guilty to DWI and other motor vehicle offenses in municipal court, was convicted based upon his pleas, and was sentenced. Collester, supra, 126 N.J. at 469. The Court did not address the adjudication of the DWI offenses in the municipal court or the manner in which such cases should be decided by our trial courts. The Court's endorsement of a "governmental commitment to the eradication of drunk driving" was made in support of its imposition of discipline on a judge who violated the Code of Judicial Conduct by driving while intoxicated. Id. at 472-73.
The Court's expressions in Tischio and Collester did not establish a policy or require that trial judges decide DWI cases in anything other than a fair and impartial manner. Defendant's contention to the contrary ignores the Court's unequivocal commitment to ensuring the procedural and substantive rights of those accused of DWI. See, e.g., State v. Gibson, 219 N.J. 227, 240 (2014) (noting that although a DWI violation is a quasi-criminal offense, a defendant "enjoys a broad array of procedural rights"); State v. Cahill, 213 N.J. 253, 258 (2013) (reversing DWI conviction where defendant's constitutional right to a speedy trial was violated); State v. Stas, 212 N.J. 37, 42 (2012) (extending the constitutional privilege against self-incrimination to those tried for DWI-related offenses and reversing the defendant's conviction where the trial court relied on the defendant's silence as substantive evidence of his guilt); State v. Chun, 194 N.J. 54 (analyzing whether introduction of the results of a chemical breath test violated a defendant's right to confront witnesses under the Sixth Amendment), cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed.2d 41 (2008); State v. Widmaier, 157 N.J. 475, 500 (1999) (finding defendants charged with DWI are entitled to the protections against double jeopardy).
We also find no merit to defendant's claim the Law Division erred by rejecting his argument that the statutory scheme for municipal courts is unconstitutional. Defendant asserts the independence of the courts is undermined by a statutory scheme requiring that municipalities share in the fines and costs imposed for DWI convictions.3 There is a presumption that statutes are constitutional unless they are "clearly repugnant to the Constitution." Teamsters Local 97 v. State, 434 N.J. Super. 393, 415 (App. Div. 2014). The party challenging the statute bears the burden of rebutting this presumption, which requires a showing that the statute's "repugnancy to the Constitution is clear beyond a reasonable doubt." Ibid.
The New Jersey Constitution established our court system and vested judicial power in the Supreme Court, Superior Court and "other courts of limited jurisdiction" which "may from time to time be established." N.J. Const. art. VI, § 1, ¶ 1. Pursuant to this authority, municipal courts were established by N.J.S.A. 2B:12-1. Although municipal court judges are appointed by a mayor or governing body, N.J.S.A. 2B:12-4(b), the appointment power does not render the functions of a municipal court judge "a phase of local government. Rather in exercising the appointive power, the governing body acts merely as a statutory agent." Kagan v. Caroselli, 30 N.J. 371, 379 (1959).
Municipal courts are an integral part of our statewide judiciary system, In re Yengo, 72 N.J. 425, 431-32 (1977), and are subject to oversight by our Supreme Court. Kagan, supra, 30 N.J. at 379. A municipal court judge imposes fines and costs in his or her role as member of our State's judicial system, and not as an employee or agent of the municipality. Municipal court judges are paid fixed salaries, N.J.S.A. 2B:12-7(b), their decisions are subject on appeal to a de novo review by the Law Division, and they do not have a direct or indirect financial interest in the collection of fines and penalties which has been found in other contexts to deprive a litigant of the right to a fair trial. See, e.g., Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed.2d 1208 (2009) (finding it was a deprivation of due process for an appellate judge to hear and decide a case in which one of the litigants contributed to the judge's election campaign); Ward v. Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed.2d 267 (1972) (finding a due process violation where a judge, who also served as the municipality's mayor, imposed fines that supported the municipal budget the judge administered in his role as mayor); Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927) (finding a due process violation where the compensation of a judge, who also served as mayor, was based upon the fines he imposed after convictions, and the fines imposed were paid into the municipal budget which the judge administered in his role as mayor). We are satisfied our municipal court statutory scheme does not undermine judicial independence, and defendant failed to satisfy his burden of demonstrating it is unconstitutional.
Defendant next argues the court erred by denying his request to direct the recusal of the municipal prosecutor. Defendant relies on N.J.S.A. 22A:3-4, which requires the imposition of court costs on a "prosecutor" where a defendant is found not guilty. Defendant claims the statute imposes upon municipal prosecutors a direct financial interest in the outcome of municipal court matters, creates an impermissible conflict of interest under Rule of Professional Conduct 1.8(i), and required the recusal of the municipal prosecutor here.
Rule of Professional Conduct 1.8(i) is inapplicable to the circumstances here. The Rule prohibits an attorney from acquiring "a proprietary interest in a cause of action or subject matter of litigation the lawyer is conducting for a client" unless it is to acquire a lien to secure fees or pursuant to a contract "for a reasonable contingent fee in a civil case." R.P.C. 1.8(i). A proprietary interest is an interest held by a property owner. Black's Law Dictionary (7th ed. 1999). Unlike in a civil case, where an attorney might claim ownership to a damage award or property that may be in dispute, there is nothing in the resolution of motor vehicle offenses to which the municipal prosecutor could claim a proprietary or ownership interest. The resolution of charges could yield no more than a verdict of guilty or innocent. N.J.S.A. 22A:3-4 did not create for the municipal prosecutor an ownership interest in the matters prosecuted here. It permitted only the imposition of court costs.
Defendant also argues that a municipal prosecutor's potential exposure for the payment of court costs under N.J.S.A. 22A:3-4 created a direct financial interest in the outcome of the matters that undermined the prosecutor's impartiality and interfered with defendant's right to a fair trial. Defendant relies on State v. Storm, 141 N.J. 245, 252-56 (1995), where the Court held that a private prosecutor's direct financial interest in the outcome of a municipal court prosecution created an appearance the prosecutor was not impartial and deprived defendant of a fair trial. We reject defendant's reliance upon Storm because we are satisfied N.J.S.A. 22A:3-4 did not create a direct financial interest for the municipal prosecutor in the resolution of the motor vehicle offenses here because, as explained below, the statute does not require that a "municipal prosecutor" appointed in accordance with N.J.S.A. 2B:25-4 pay court costs where a defendant is found not guilty.
The judicial role in statutory construction is to effectuate the legislative intent. Tischio, supra, 107 N.J. at 510-11. This requires consideration of the context in which a statute appears, which is particularly pertinent in interpreting two statutes enacted at separate times. Chicago Title Ins. Co. v. Bryan, 388 N.J. Super. 550, 557 (App. Div.), certif. denied, 190 N.J. 254 (2007).
N.J.S.A. 22A:3-4 provides for the imposition of court costs in municipal court matters and in pertinent part states:
If [a] defendant is found guilty of the charge laid against him, he shall pay the costs herein provided, but if, on appeal, the judgment is reversed, the costs shall be repaid to defendant. If [a] defendant is found not guilty of the charge laid against him, the costs shall be paid by the prosecutor, except when the Chief Administrator of the New Jersey Motor Vehicle Commission, a peace officer, or a police officer shall have been prosecutor.
[N.J.S.A. 22A:3-4.]4
The statute was enacted in 1953, when municipalities were not required to appoint municipal prosecutors, and private parties, police officers, and others often filled the role of "prosecutor." In recognition that various individuals functioned as prosecutor in municipal court proceedings, the Legislature exempted "the Director of the Division of Motor Vehicles, a peace officer, [and] a police officer" from the requirement to pay costs where they had served in a matter as "prosecutor." N.J.S.A. 22A:3-4.
In 1999, the Legislature found and declared that "municipal prosecutors are a critical component of New Jersey's system for the administration of justice" and "that the role of municipal prosecutor is not statutorily defined." N.J.S.A. 2B:25-1. For the first time, the Legislature mandated that each municipality appoint "at least one municipal prosecutor," N.J.S.A. 2B:25-4, defined a municipal prosecutor's duties, N.J.S.A. 2B:25-5, and authorized municipal prosecutors to recommend the acceptance of a plea, N.J.S.A. 2B:25-11, or the amendment of a charge, N.J.S.A. 2B:25-12. A "municipal prosecutor" was statutorily defined as "a person appointed to prosecute all offenses over which the municipal court has jurisdiction." N.J.S.A. 2B:25-2(a).
Thus, the position of "municipal prosecutor," as defined and codified in N.J.S.A. 2B:25-2(a), did not exist when N.J.S.A. 22A:3-4 was enacted and could not have been within the Legislature's contemplation when it imposed the obligation that a "prosecutor" pay court costs when a defendant is found not guilty. Moreover, N.J.S.A. 22A:3-4 has been amended repeatedly since its adoption in 1953, and most recently in 2004 following the statutory creation of the position of "municipal prosecutor," but has not been amended to include "municipal prosecutor" as defined in N.J.S.A. 2B:25-2(a) as an individual liable for court costs.
The Legislature is presumed to be "conversant with its own enactments, particularly when a statute is considered for amendment." Comm. of Petitioners for Repeal of Ordinance No. 522 (2014) of Borough of W. Wildwood v. Frederick, 435 N.J. Super. 552, 567 (App. Div.), certif. denied, 219 N.J. 626 (2014). We cannot ignore that the term "municipal prosecutor" was expressly defined by the Legislature in N.J.S.A. 2B:25-2(a) and that in the amendments to N.J.S.A. 22A:3-4 that followed the enactment of N.J.S.A. 2B:25-2(a), the Legislature did not change the term "prosecutor" to "municipal prosecutor." We are satisfied that if "municipal prosecutor[s]" were intended to be liable for the payment of court costs, the Legislature would have amended N.J.S.A. 22A:3-4 to include "municipal prosecutors" as defined under N.J.S.A. 2B:25-2(a). The Legislature chose not to do so.
The Legislature's decision not to require municipal prosecutors to pay court costs under N.J.S.A. 22A:3-4 is also consistent with the statutory scheme defining a municipal prosecutor's duties. See Parsons v. Mullica Twp. Bd. of Educ., 226 N.J. 297, 307 (2016) ("The fundamental objective of statutory interpretation is to identify and promote the Legislature's intent."). Municipal prosecutors are "under the supervision of the Attorney General or county prosecutor," N.J.S.A. 2B:12-27, are required to "represent the State, the county, or the municipality in the prosecution of all offenses within the statutory jurisdiction of the municipal court," and are "responsible for handling all phases of the prosecution of an offense," N.J.S.A. 2B:25-5(a). A municipal prosecutor is authorized to "recommend to the court to accept a plea to a lesser or other offense," N.J.S.A. 2B:25-11, and may request that the municipal court amend or dismiss a charge, N.J.S.A. 2B:25-12, but is not granted statutory authority to initiate a charge.
Thus, a municipal prosecutor does not determine which cases will be filed in the municipal court, but has a statutory obligation to prosecute them. Although N.J.S.A. 22A:3-4 requires the imposition of court costs when a defendant is found not guilty, we cannot conceive of an appropriate circumstance where a municipal prosecutor, who had no role in initiating a municipal court case, would be ordered to pay court costs merely because a defendant is found not guilty. We are therefore convinced the court correctly denied defendant's motion for the recusal of the municipal prosecutor.
Defendant also challenges the court's denial of his motion to suppress the statements he made to Imberti at the scene of the motor vehicle accident. Defendant contends the court erred by rejecting his claim his statements should be suppressed because the officers did not advise him of his Miranda rights prior to questioning him.
In our review of a decision on a motion to suppress, we defer to the factual findings of the trial court that are supported by sufficient evidence in the record. State v. Hubbard, 222 N.J. 249, 262-63 (2015) (citing State v. Gamble, 218 N.J. 412, 424 (2014)). A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to special deference. State v. Gandhi, 201 N.J. 161, 176 (2010). A trial court's legal conclusions are reviewed de novo. Ibid.
The record shows little dispute concerning the Law Division's fact-findings. Imberti responded to a report of a car fire and observed defendant's damaged and smoking car. Imberti saw only defendant in the area, walking quickly away from the motor vehicle. Imberti approached defendant in a public place and was joined by another officer. Imberti asked defendant three questions: (a) was defendant the operator of the vehicle; (b) had there been anyone else in the vehicle; and (c) was defendant involved in a motor vehicle accident. The officers were armed but had not drawn their weapons, and did not make any demands or accuse defendant of the commission of any offense. Defendant was not advised he was in custody or under arrest until after he answered the questions and performed the field sobriety tests.
The issue presented to the court was whether Imberti's questioning of defendant constituted a custodial interrogation requiring the officers to advise defendant of his Miranda rights. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. at 706. "The Miranda requirement is triggered by custodial interrogation, i.e., questioning . . . after a suspect has been deprived of freedom of action in a significant way." State v. Timmendequas, 161 N.J. 515, 614 (1999) (citing Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001)). "A confession obtained during a custodial interrogation may not be admitted in evidence unless law enforcement officers first informed the defendant of his or her constitutional rights." State v. Hreha, 217 N.J. 368, 382 (2014).
"[C]ustody in the Miranda sense does not necessitate a formal arrest, nor does it require physical restraint in a police station, nor the application of handcuffs, and may occur in a suspect's home or a public place other than a police station." Hubbard, supra, 222 N.J. at 266 (citing State v. P.Z., 152 N.J. 86, 103 (1997)). Miranda warnings are required where "there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." P.Z., supra, 152 N.J. at 103.
Police are not required to administer Miranda warnings each time they investigate a motor vehicle accident. In Berkemer v. McCarty, 468 U.S. 420, 435-42, 104 S. Ct. 3138, 3147-52, 82 L. Ed.2d 317, 331-36 (1984), the Court held that detention and questioning of a motorist during the course of a routine traffic stop does not constitute custodial interrogation requiring the administration of Miranda warnings. In finding that such questioning is not sufficiently coercive to implicate the need to administer Miranda warnings, the Court noted that "detention of a motorist pursuant to a traffic stop is presumptively temporary and brief" and thus different from a station house interrogation. Id. at 437, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333.
Our state courts have applied the Berkemer reasoning in analyzing whether Miranda warnings are required during a routine traffic stop. In State v. Ebert, 377 N.J. Super. 1, 9 (App. Div. 2005), we held that a DWI suspect, like defendant here, was not entitled to the administration of Miranda warnings prior to the officer's preliminary questioning during the fact gathering process. Relying on Berkemer, we noted that "a police officer asking a defendant a modest number of questions and requesting the defendant to perform a field sobriety test in a public place" was not equivalent to a formal arrest and did not require the administration of Miranda warnings. Ibid. (citing Berkemer, supra, 468 U.S. at 442, 104 S. Ct. at 3151, 82 L. Ed. 2d at 336); see also State v. Baum, 393 N.J. Super. 275, 291 (App. Div. 2007) (finding "[r]oadside questioning of a motorist detained pursuant to a traffic stop does not constitute 'custodial interrogation' that must be preceded by Miranda warnings."), aff'd as mod. 199 N.J. 407 (2009); State v. Hickman, 335 N.J. Super. 623, 631 (App. Div. 2000) ("[r]oadside questioning of a motorist is not transformed into 'custodial interrogation' that must be preceded by Miranda warnings simply because a police officer's questioning is accusatory in nature or designed to elicit incriminating evidence.").
Here, Imberti's initial questioning of defendant was brief, occurred in a public place, and consisted of three short inquiries. Defendant was not handcuffed or placed under arrest. The officers responded to the scene of an accident and made preliminary inquiries of the sole person in the area who might have knowledge of the manner in which the accident occurred. As correctly found by the Law Division judge, defendant was not subject to the functional equivalent of an arrest and was not entitled to the administration of Miranda warnings. Berkemer, supra, 468 U.S. at 442, 104 S. Ct. at 3151, 82 L. Ed. 2d at 336.
We find no merit to defendant's claim he was entitled to the administration of Miranda warnings because he believed he was not free to leave the scene and because Imberti testified defendant was not free to leave the scene. The determination as to whether defendant was subject to a custodial interrogation is not dependent upon "the subjective views harbored by either the interrogating officers or the person being questioned." Hubbard, supra, 222 N.J. at 267 (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed.2d 293, 298 (1994)).
Defendant's final contention, that the court improperly admitted the results of defendant's chemical breath test, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. The stay previously entered is vacated.
2 Defendant's argument, which we reject, would also apply to Law Division judges deciding DWI charges during de novo trials on appeals from the municipal court, and where the Law Division decides DWI charges attendant to the disposition of criminal offenses. Defendant, however, did not request the recusal of the Law Division judge.
3 Defendant relies on N.J.S.A. 39:5-40, N.J.S.A. 39:5-41(b), N.J.S.A. 2B:12-7(b), N.J.S.A. 2C:46-4, and N.J.S.A. 22A:3-5, which require that all or portions of the fines and costs imposed on defendants convicted in municipal courts be paid to the municipality in which the court is located.
4 N.J.S.A. 39:5-39 similarly provides that up to a maximum of $200 of the costs for the attendance of a physician testifying in a trial on a DWI charge shall be paid by the "prosecutor" where the defendant is found not guilty of the charge. Our conclusion a municipal prosecutor appointed pursuant to N.J.S.A. 2B:25-4 is not a "prosecutor" under N.J.S.A. 22A:3-4 applies to N.J.S.A. 39:5-39 as well.
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