No TRO if no harassment
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4191-07T34191-07T3
LUIS BALARIN,
Plaintiff-Respondent,
v.
MARIA BALARIN,
Defendant-Appellant.
_________________________________________________
Submitted December 3, 2008 - Decided
Before Judges Stern and Payne.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County, Docket No. FV-16-000979-08.
Bastarrika, Guzman & Soto, LLP, attorneys
for appellant (Jose I. Bastarrika, of
counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant, Maria Balarin, appeals from the denial, by order
dated March 28, 2008, of her motion for reconsideration of a Final Restraining Order ("FRO") entered November 26, 2007. Defendant argues that the elements of harassment were not proven, that she was not permitted "to cross examine the plaintiff-respondent," that the trial judge did not "render findings of credibility as to the factual witness," and that the trial judge failed to "inquire as to whether or not [defendant] wished to obtain counsel" before the hearing commenced.
The FRO was entered on November 26, 2007, and the motion for reconsideration was dated (and defendant says was filed on) December 17, 2007, twenty-one days later. As a result of defendant's motion for reconsideration, the Family Part entered an "Amended Final Restraining Order" on March 28, 2008, defendant having prevailed in terms of having "collateral issues" addressed in the FM proceedings. Based on tolling, see R. 2:4-3, we consider the amended FRO as opposed to merely the denial of reconsideration.
Defendant is correct that the record reflects that she received no advice as to the right to counsel before the original FRO proceedings began. She says she would have retained counsel, and the trial judge on the motion for reconsideration acknowledged an attorney could have helped her. But the judge also said that defendant could have asked for counsel and the proceedings could not have been re-done after an FRO was entered. We need not address this issue in light of our disposition.
In the words of defendant's brief, plaintiff's complaint alleged that defendant "made numerous phone calls to [plaintiff], had called him vulgarities, and had appeared at his home with the parties' children" incident to a dispute as to which parent was going to take a son to a doctor's appointment. The finger of one of parties' sons was broken during a prior visitation with plaintiff and the parties disputed how the doctor's appointment was to be handled. Defendant says she couldn't take the son for the appointment and asked plaintiff to do so. The plaintiff testified at the November 26, 2007 hearing about what happened incident to that "request" as follows:
Okay. So at 7:30, my kids call me on that day and asked me to take them to the doctor, on the very same day. I told them to just tell their mother to take them, and that if she needed me to take them to the doctors she has to give me prior notice so that I can make arrangements if I cannot take them. And, so, I just told them that, and we finished the conversation and they call, with her cell phone, about seven more times. This is the home where I live with my fianc�e, my newborn son, and her -- her family.
So, after responding the seven times, every time my kids will talk I will hear her [in] the background telling them what to say until she will start talking to me and cursing me out, and I will hang up the phone.
So, at 10:30 that morning they ran -- the - - the bell rang and my two kids showed up in the front of the house, and I told them that I was going to work, that I was working, because I do work -- I do a little work from the home, and that I couldn't take them to the doctor, but if the issue was the co-payment to tell the mother just to give the doctor my address and I will make the payments for the co-payment if that was what was bothering her.
So I told them to just go back to their mother's car because she was waiting outside the house, my fianc�e's house. They went and stood inside the car. She came out of the car to the driveway and she started screaming on top -- top of her lungs that I was a bad father, that she's going to tell my fianc�e who I'm, you know, who Luis really is, and that they should know, and that I'm a bastard, and -- I mean, this goes on, and on, and on, and on since we got divorced. She's never really -- she continues to harass me for no reason, to the extent, Your Honor, that I don't understand why my kids are waiting outside. They should be in school right now.
Defendant brought the children to testify, but plaintiff successfully asked the trial judge to preclude that because they should not be "involved" in the dispute between their parents.
According to defendant's testimony:
There was no screaming and yelling. My sons are present here today because they were the ones who made the call, and there was four calls, and I have phone records to show that. It was not eight calls made, and my sons made the call to their father, asking if he would please take them to the doctor, and it was because my son broke his thumb on the Sunday, which is also here on this complaint, November 11th, in the presence of his father and his father neglected to take him to the hospital to get x-rays because he felt that this thumb was not broken. It was only when I was called by my son, who is present here today, to tell me, mom, I think I broke my finger and my father won't take me to the hospital, I had to call the Pompton Lakes Police Department, which I have records of the police report that was filed, to send a police officer to his fianc�e's home to ask and send the child to the hospital. And I did not have the fianc�e's address. I went based on the phone number.
Defendant further explained what happened on the day the thumb was broken:
Austin, my 12-year-old son, called me at -- shortly after 3:00 p.m. on my cell phone and said he fell, he was crying, and he thinks he broke his thumb, he heard a snap. And I asked him, my son Austin, to put his father on the phone, asked his father to please take him to the hospital, and he said, he's fine, he's just got some swelling, this will make a man out of him, and hung up the phone on me.
I had to call again. I repeated the call about three times. He answered the phone, what the f-- do you want, and finally, just -- he hung up the phone on me numerous times, which is a pattern, and I ended up calling the Pompton Lakes Police Department, giving them the number where my son called me from, and asking for them to please check on my son because I got -- I received a call from my 12-year-old son who stated he believed he broke his finger and the father refused to take him to the hospital.
Now, I also have hospital records and the police report.
Plaintiff further explained that the son had "a very low tolerance of pain," ice was applied, and the son was asked to call his mother. He said defendant refused to give him "the insurance information," but he took the child to the hospital where x-rays revealed the finger was broken. However, defendant insisted that plaintiff didn't arrive at the hospital until 7:10 p.m., almost four hours after her calls and over one hour after the police visit. Defendant also testified plaintiff was home the next morning and could have taken their son to the hand specialist.
The trial judge ruled:
The Court: All Right. Let me tell you how -- simple this is to me. I find I have jurisdiction over this matter.
I find that you committed the predicate offense of harassment by instructing your boys to call him four times and by then going to his house. I find that you were harassing him and I'm going to enter a final order. You are not to contact him any further. You are not to instruct anyone else to contact him. He can -- he can make separate arrangements for -- for visitation or for communication with the children, but you're all finished with this type of conduct. That was totally, totally harassment.
Ms. Balarin: My sons are here, Your Honor, and you can ask them personally.
The Court: They couldn't -- you just admitted to me enough for me to sustain the case. I don't need another witness. You harassed him. You told them to call him four times, and when he made --
Ms. Balarin: I didn't tell my son to call four times.
The Court: Excuse me. Excuse me. Wait in the back of the courtroom for a copy of the order. You're permanently restrained from contacting him.
Defendant subsequently retained counsel. At the motion for reconsideration hearing on February 14, 2008, defendant's counsel stated he did not receive the transcript of the trial, which he had ordered, although he suggested defendant couldn't afford an expedited copy. The judge said he would read the transcript when it arrived before deciding the application and whether to grant a new trial.
On March 28, 2008, further colloquy was conducted on the motion for reconsideration after the judge had reviewed the original transcript. The judge then ruled:
she would have had better representation if she had a attorney here, is -- I mean there's no way you can doubt that. There's -- I've seen very few instances in my entire career where a person is better off going to court without an attorney than with an attorney.
But this is an important matter. The -- the defendant knows that. The plaintiff knows that. People come in here every day of the week, and if I were to go back and interfere with a judgment of the Court because someone said they were too nervous to tell the Court that they wanted to get counsel and wanted a chance where they could get counsel, nothing would be final.
And really it's only for that reason, as far as the -- the case is concerned, the circumstances of the case are concerned, you know, there might be an -- an impact on credibility. There might be a lot of impacts with a counsel, but that's not for me to decide now.
It's too bad that, especially with such a good attorney, she -- she wasn't represented that day, but I'm not going to reconsider and -- and make this into anything but what it is. It's a permanent order, based upon the fact that she didn't exercise her right to have counsel.
Plaintiff did not file a response to the appeal and does not defend the FRO before us. We acknowledge that we are bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1988). This is especially true when questions of credibility are involved. Id. at 412. We also acknowledge that "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we must accord special deference to the fact finding of the Family Part. Id. at 413.
However, the Family Part's legal conclusions are subject to our plenary review, Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007), and we must determine if plaintiff proved "by a preponderance of the credible evidence" that defendant violated a statute incorporated into N.J.S.A. 2C:25-19. See Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). Moreover, even if the predicate act is proven, the FRO can issue only if necessary "to protect the victim from an immediate danger or to prevent further abuse." Id. at 127. See also N.J.S.A. 2C:25-29(a), (b); Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).
In this case, the record does not demonstrate that harassment occurred within the meaning of the statute. See N.J.S.A. 2C:33-4. Certainly the defendant's words do not suffice. See N.J.S.A. 2C:33-4(a); State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Moreover, particularly in the absence of proof of a history of domestic violence, the circumstances do not suggest a purpose to harass. See, e.g., State v. Hoffman, 149 N.J. 564, 577 (1997); State v. Castagna, 387 N.J. Super. 598, 605-07 (App. Div.), certif. denied, 188 N.J. 577 (2006); State v. B.H., 290 N.J. Super. 588, 597 (App. Div. 1996), aff'd in part and rev'd in part, 149 N.J. 564 (1997). In any event, given the absence of proof of a pattern or history of improper conduct and the fact that the incident was a reaction to the son's injury, the FRO was not necessary to protect plaintiff. Silver, supra, 387 N.J. Super. at 127-28.
Accordingly, the judgment is reversed and the FRO shall be vacated. The parties may address any relevant issues to the Family Part incident to any FM proceedings therein.
A-4191-07T3
RECORD IMPOUNDED
February 17, 2009
Tuesday, April 21, 2009
State v ALTAMIRANO
After pleading guilty to his third offense for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, at sentencing, defendant was allowed to serve a portion of his jail time in the Sheriff's Labor Assistance Program (SLAP). A subsequent Appellate Division decision held that the mandatory jail time imposed by the statute for a DWI offense, N.J.S.A. 39:4-50(a)(3), could not be served in a SLAP program. State v. Luthe, 383 N.J. Super. 512, 514-15 (App. Div. 2006). As a result, defendant's SLAP sentence was vacated, requiring him to serve time in jail. Since defendant had already begun serving his time in SLAP, he contends that this change in his sentence constitutes an ex post facto application of the law, and that it violates principles of double jeopardy, due process, and fundamental fairness. We disagree. Because the original sentence was an illegal sentence, it may be corrected at any time. However, since the service in SLAP was pursuant to a "plea agreement", we stay the sentence for forty-five days in order that defendant may move to vacate the plea.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2516-07T42516-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GUSTAVO ALTAMIRANO,
Defendant-Appellant.
________________________________________
Argued January 13, 2009 - Decided
Before Judges Gilroy and Chambers.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-085, Indictment No. 05-05-00185.
Terry Webb argued the cause for appellant (Hanlon, Dunn & Robertson, attorneys; Gerard E. Hanlon, on the brief).
Paula C. Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Erin Smith Wisloff, Assistant Prosecutor, on the brief).
PER CURIAM
After pleading guilty to his third offense for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, at sentencing, defendant was allowed to serve a portion of his jail time in the Sheriff's Labor Assistance Program (SLAP). A subsequent Appellate Division decision held that the mandatory jail time imposed by the statute for a DWI offense, N.J.S.A. 39:4-50(a)(3), could not be served in a SLAP program. State v. Luthe, 383 N.J. Super. 512, 514-15 (App. Div. 2006). As a result, defendant's SLAP sentence was vacated, requiring him to serve time in jail. Since defendant had already begun serving his time in SLAP, he contends that this change in his sentence constitutes an ex post facto application of the law, and that it violates principles of double jeopardy, due process, and fundamental fairness. We disagree. Because the original sentence was an illegal sentence, it may be corrected at any time. However, since the service in SLAP was pursuant to a "plea agreement", we stay the sentence for forty-five days in order that defendant may move to vacate the plea.
On February 2, 2006, defendant pled guilty in Chester Township Municipal Court to the DWI charge. As part of a plea agreement, the related traffic complaints of reckless driving, failure to keep right, and failure to dim headlights were dismissed. This was defendant's third DWI offense. The Municipal Court judge suspended defendant's driving privileges for ten years, ordered him to serve at least forty-eight hours in the Intoxicated Driver Resource Center, and sentenced him to six months in jail. The judge stated that defendant would be allowed to serve ninety days of his jail time in SLAP and the balance in a rehabilitation program. The judge fined defendant $1,000 and assessed the requisite monetary costs, penalties, and assessments.
A month later, on March 6, 2006, we held that under the terms of the statute, N.J.S.A. 39:4-50(a)(3), third time DWI offenders could not participate in noncustodial programs as an alternative to jail time, but must serve their time in jail, except that they could serve up to ninety days in an inpatient rehabilitation program as expressly permitted by the statute. State v. Luthe, supra, 383 N.J. Super. at 514—15.
On May 12, 2006, in response to the Luthe decision, the Sheriff's Office determined that defendant could not serve his sentence in SLAP. By this time, defendant had already served ten days in SLAP. The matter came before the Municipal Court judge on July 6, 2006, and the judge, expressing some concern over the ex post facto issue, initially reaffirmed his placement of defendant into SLAP. However, upon reconsideration, the judge thereafter revoked the SLAP sentence and required that defendant serve ninety days in jail upon completion of his rehabilitation program. He stayed the sentence, pending appeal.
The Law Division judge, in his de novo review of the record in accordance with Rule 3:23-8(a), State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995), determined that defendant had been given an illegal sentence, which may be corrected at any time. However, in light of the fact that the sentence was part of a plea agreement, the judge determined that defendant may withdraw his plea, and if reconvicted after a trial, would be given credit for the ten days served in SLAP. The judge explained his decision as follows:
Now, defendant makes . . . an argument concerning ex post facto, double jeopardy and due process. Generally, any statute which makes a prior act that was innocent when committed a crime, which makes punishment for a crime more burdensome after its commission, or which deprives a defendant of a defense available when the act was committed, constitutes an ex post facto law. State v. T.P.M., 189 N.J. Super. 360 at 366 (App. Div. 1983).
Additionally, a defendant may not be resentenced where the defendant has accepted a plea offer, been sentenced in accordance therewith, and has begun to serve that sentence. State v. Veney, 327 N.J. Super. 458 at 462 (App. Div. 2000).
On the other hand, a sentence is illegal if it is inconsistent with the requirements of the controlling . . . sentencing statute or constitutional principles. [Ibid. citing] State v. Flores, 228 N.J. Super. 586 at pages 591 and 592, (App. Div. 1988) [certif. denied, 115 N.J. 78 (1989)]. New Jersey courts have consistently held that the illegal sentences may be corrected at any time. [Ibid.;] State v. Heisler, 192 N.J. Super. 586 at 592 (App. Div. 1984), (citing also, State v. Sheppard, 125 N.J. Super. 332 (App. Div. 1973), [certif. denied, 64 N.J. 318 (1973)]).
Here, N.J.S.A. 39:4-50(a)(3) was amended in 2004 to require a custodial sentence . . . in a "county jail or a work house" for [] third time DWI offenders, almost two years prior to the date of the defendant's offense in October of 2005. Therefore, defendant's original SLAP sentence was illegal because it was inconsistent with the statutory requirement.
Accordingly, the court finds that the defendant's ex post facto and double jeopardy arguments do not apply, because the original sentence of the defendant constituted an illegal sentence, which may be corrected at any time. And I would point out that the statute against which he was sentenced was already in place as amended.
So, it's not a situation where the punishment was enhanced . . . . That was the punishment to begin with. . . . He never had the option of SLAP to begin with. The court has spoken on that.
And that -- and that's unfortunate because he entered a plea agreement. He had . . . a plea bargain, and he should have gotten what he bargained for, but he didn't, and the court below did the only thing it could do, which was resentence in accordance with the law.
. . . .
Due process was to give him what he was entitled to under law. The fact that they bargained for something he wasn't entitled to and agreed to it, doesn't change the illegality of the sentence nor the reality of the situation. What Judge Mulhern did was to put him back to where he -- he could only be.
Now, the problem with this, as I see, and why I think there is some relief required here, is the parties bargained and made a mistake of fact and a mistake of law, and he should be put back in the position -- and I'm going to find that he entered an agreement when he thought he could get SLAP, and he could get rehabilitation for a period -- 90 days SLAP and 90 days rehab. Certainly, [he] never bargained and agreed to 180 days, which is now what he has.
. . . .
I'm wondering if we can do this? If Prosecutor -- you can prepare the -- the Order. The Order will provide that it's an illegal sentence. I've determined as a matter of law, it was an illegal sentence. No ex post facto applies. No estoppel applies. However, because it was an illegal sentence, I'm . . . in effect saying he can take his plea back. I'm rejecting his plea. He can take it back, and he starts all over again. He'll get credit if he's ultimately convicted for any time he's served, obviously. He should not be deprived of that. Even though it was an illegal sentence, there's no question he did 10 days of SLAP. So, he should get credit for that.
On appeal, defendant contends that the retraction of the SLAP sentence constitutes an ex post facto application of the law and that a new trial on the charge would constitute double jeopardy. He maintains that due process and fundamental fairness require that the SLAP sentence be reinstated.
After a careful consideration of the law and issues raised in this appeal, we affirm substantially for the reasons set forth by the Law Division judge. We add only the following comments.
Application of the holding in State v. Luthe, supra, 383
N.J. Super. 512, to defendant's sentence does not amount to an ex post facto law, because at the time defendant committed the offense the statute provided for the term of imprisonment he has received.
Both the New Jersey and federal constitutions forbid ex post facto laws. U.S. Const. art. I, � 9, cl. 3; U.S. Const. art. I, � 10, cl. 1; N.J. Const. art. IV, � 7, � 3. For a penal law to be considered ex post facto, it must be retrospective and it must disadvantage the offender. State v. Natale, 184 N.J. 458, 491 (2005). A law is considered retrospective if it "changes the legal consequences of acts completed before its effective date." State v. Fortin, 400 N.J. Super. 434, 445
(App. Div. 2008) (quoting Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96 L. Ed 2d, 351, 360 (1987)). A law disadvantages the offender where it is "more onerous than the prior law." Id. at 446 (quoting Miller v. Florida, supra, 482 U.S. at 431, 107 S. Ct. at 2452, 96 L. Ed. 2d at 361).
A judicial decision may be considered an ex post facto law where its enlargement of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Id. at 490-91 (quoting Rogers v. Tennessee, 532 U.S. 451, 455, 121 S. Ct. 1693, 1697, 149 L. Ed.2d 697, 704 (2001)). Given the language in the statute providing for a period of incarceration, the holding in Luthe is not "unexpected or indefensible." We note that the defendant in Luthe did not raise an ex post facto argument.
Further, a judicial decision that does not increase the range of the defendant's sentence or retroactively apply a new statutory maximum does not disadvantage the defendant. See State v. Natale, supra, 184 N.J. at 489-92 (concluding that eliminating presumptive terms in the statutory sentencing scheme and allowing sentences up to the statutory maximum did not violate the prohibition against ex post facto laws). Here, when defendant committed the offense, indisputably, the statutory penalty was 180 days in jail. Since Luthe did not increase the maximum sentence that defendant could receive for the offense, it did not disadvantage him and the ex post facto prohibition has not been violated.
We further add that the correction of an illegal sentence does not implicate double jeopardy principles even if a defendant has already begun to serve the sentence. State v. Baker, 270 N.J. Super. 55, 72 (App. Div.), aff'd 138 N.J. 89 (1994), cert. denied, 528 U.S. 911, 120 S. Ct. 261, 145 L. Ed.2d 219 (1999).
The order on appeal dated January 4, 2008, merely states that "[t]he decision of the municipal court to vacate the SLAP sentence is affirmed for the reasons stated on the record." It then stayed the matter twenty days pending appeal. The order does not expressly set forth the alternative of vacating the plea as directed by the judge. Accordingly, while we affirm the vacation of the SLAP sentence, we stay the sentence for a period of forty-five days to provide defendant time to move in the Law Division to vacate the plea.
Although the record refers to a plea agreement, defendant did not attempt to evade the substantive DWI charge, but only pled guilty in accordance with the then local understanding that the sentence could be served in a SLAP rather than in jail. As a result, we do not believe that the plea runs afoul of the general prohibition of plea agreements in DWI cases. See Guidelines for Operation of Plea Bargains in the Municipal Courts in New Jersey, Pressler, Current N.J. Court Rules, Appendix, Part VII, Guideline 4 at 2239 (2009).
A-2516-07T4
February 26, 2009
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2516-07T42516-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GUSTAVO ALTAMIRANO,
Defendant-Appellant.
________________________________________
Argued January 13, 2009 - Decided
Before Judges Gilroy and Chambers.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-085, Indictment No. 05-05-00185.
Terry Webb argued the cause for appellant (Hanlon, Dunn & Robertson, attorneys; Gerard E. Hanlon, on the brief).
Paula C. Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Erin Smith Wisloff, Assistant Prosecutor, on the brief).
PER CURIAM
After pleading guilty to his third offense for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, at sentencing, defendant was allowed to serve a portion of his jail time in the Sheriff's Labor Assistance Program (SLAP). A subsequent Appellate Division decision held that the mandatory jail time imposed by the statute for a DWI offense, N.J.S.A. 39:4-50(a)(3), could not be served in a SLAP program. State v. Luthe, 383 N.J. Super. 512, 514-15 (App. Div. 2006). As a result, defendant's SLAP sentence was vacated, requiring him to serve time in jail. Since defendant had already begun serving his time in SLAP, he contends that this change in his sentence constitutes an ex post facto application of the law, and that it violates principles of double jeopardy, due process, and fundamental fairness. We disagree. Because the original sentence was an illegal sentence, it may be corrected at any time. However, since the service in SLAP was pursuant to a "plea agreement", we stay the sentence for forty-five days in order that defendant may move to vacate the plea.
On February 2, 2006, defendant pled guilty in Chester Township Municipal Court to the DWI charge. As part of a plea agreement, the related traffic complaints of reckless driving, failure to keep right, and failure to dim headlights were dismissed. This was defendant's third DWI offense. The Municipal Court judge suspended defendant's driving privileges for ten years, ordered him to serve at least forty-eight hours in the Intoxicated Driver Resource Center, and sentenced him to six months in jail. The judge stated that defendant would be allowed to serve ninety days of his jail time in SLAP and the balance in a rehabilitation program. The judge fined defendant $1,000 and assessed the requisite monetary costs, penalties, and assessments.
A month later, on March 6, 2006, we held that under the terms of the statute, N.J.S.A. 39:4-50(a)(3), third time DWI offenders could not participate in noncustodial programs as an alternative to jail time, but must serve their time in jail, except that they could serve up to ninety days in an inpatient rehabilitation program as expressly permitted by the statute. State v. Luthe, supra, 383 N.J. Super. at 514—15.
On May 12, 2006, in response to the Luthe decision, the Sheriff's Office determined that defendant could not serve his sentence in SLAP. By this time, defendant had already served ten days in SLAP. The matter came before the Municipal Court judge on July 6, 2006, and the judge, expressing some concern over the ex post facto issue, initially reaffirmed his placement of defendant into SLAP. However, upon reconsideration, the judge thereafter revoked the SLAP sentence and required that defendant serve ninety days in jail upon completion of his rehabilitation program. He stayed the sentence, pending appeal.
The Law Division judge, in his de novo review of the record in accordance with Rule 3:23-8(a), State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995), determined that defendant had been given an illegal sentence, which may be corrected at any time. However, in light of the fact that the sentence was part of a plea agreement, the judge determined that defendant may withdraw his plea, and if reconvicted after a trial, would be given credit for the ten days served in SLAP. The judge explained his decision as follows:
Now, defendant makes . . . an argument concerning ex post facto, double jeopardy and due process. Generally, any statute which makes a prior act that was innocent when committed a crime, which makes punishment for a crime more burdensome after its commission, or which deprives a defendant of a defense available when the act was committed, constitutes an ex post facto law. State v. T.P.M., 189 N.J. Super. 360 at 366 (App. Div. 1983).
Additionally, a defendant may not be resentenced where the defendant has accepted a plea offer, been sentenced in accordance therewith, and has begun to serve that sentence. State v. Veney, 327 N.J. Super. 458 at 462 (App. Div. 2000).
On the other hand, a sentence is illegal if it is inconsistent with the requirements of the controlling . . . sentencing statute or constitutional principles. [Ibid. citing] State v. Flores, 228 N.J. Super. 586 at pages 591 and 592, (App. Div. 1988) [certif. denied, 115 N.J. 78 (1989)]. New Jersey courts have consistently held that the illegal sentences may be corrected at any time. [Ibid.;] State v. Heisler, 192 N.J. Super. 586 at 592 (App. Div. 1984), (citing also, State v. Sheppard, 125 N.J. Super. 332 (App. Div. 1973), [certif. denied, 64 N.J. 318 (1973)]).
Here, N.J.S.A. 39:4-50(a)(3) was amended in 2004 to require a custodial sentence . . . in a "county jail or a work house" for [] third time DWI offenders, almost two years prior to the date of the defendant's offense in October of 2005. Therefore, defendant's original SLAP sentence was illegal because it was inconsistent with the statutory requirement.
Accordingly, the court finds that the defendant's ex post facto and double jeopardy arguments do not apply, because the original sentence of the defendant constituted an illegal sentence, which may be corrected at any time. And I would point out that the statute against which he was sentenced was already in place as amended.
So, it's not a situation where the punishment was enhanced . . . . That was the punishment to begin with. . . . He never had the option of SLAP to begin with. The court has spoken on that.
And that -- and that's unfortunate because he entered a plea agreement. He had . . . a plea bargain, and he should have gotten what he bargained for, but he didn't, and the court below did the only thing it could do, which was resentence in accordance with the law.
. . . .
Due process was to give him what he was entitled to under law. The fact that they bargained for something he wasn't entitled to and agreed to it, doesn't change the illegality of the sentence nor the reality of the situation. What Judge Mulhern did was to put him back to where he -- he could only be.
Now, the problem with this, as I see, and why I think there is some relief required here, is the parties bargained and made a mistake of fact and a mistake of law, and he should be put back in the position -- and I'm going to find that he entered an agreement when he thought he could get SLAP, and he could get rehabilitation for a period -- 90 days SLAP and 90 days rehab. Certainly, [he] never bargained and agreed to 180 days, which is now what he has.
. . . .
I'm wondering if we can do this? If Prosecutor -- you can prepare the -- the Order. The Order will provide that it's an illegal sentence. I've determined as a matter of law, it was an illegal sentence. No ex post facto applies. No estoppel applies. However, because it was an illegal sentence, I'm . . . in effect saying he can take his plea back. I'm rejecting his plea. He can take it back, and he starts all over again. He'll get credit if he's ultimately convicted for any time he's served, obviously. He should not be deprived of that. Even though it was an illegal sentence, there's no question he did 10 days of SLAP. So, he should get credit for that.
On appeal, defendant contends that the retraction of the SLAP sentence constitutes an ex post facto application of the law and that a new trial on the charge would constitute double jeopardy. He maintains that due process and fundamental fairness require that the SLAP sentence be reinstated.
After a careful consideration of the law and issues raised in this appeal, we affirm substantially for the reasons set forth by the Law Division judge. We add only the following comments.
Application of the holding in State v. Luthe, supra, 383
N.J. Super. 512, to defendant's sentence does not amount to an ex post facto law, because at the time defendant committed the offense the statute provided for the term of imprisonment he has received.
Both the New Jersey and federal constitutions forbid ex post facto laws. U.S. Const. art. I, � 9, cl. 3; U.S. Const. art. I, � 10, cl. 1; N.J. Const. art. IV, � 7, � 3. For a penal law to be considered ex post facto, it must be retrospective and it must disadvantage the offender. State v. Natale, 184 N.J. 458, 491 (2005). A law is considered retrospective if it "changes the legal consequences of acts completed before its effective date." State v. Fortin, 400 N.J. Super. 434, 445
(App. Div. 2008) (quoting Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96 L. Ed 2d, 351, 360 (1987)). A law disadvantages the offender where it is "more onerous than the prior law." Id. at 446 (quoting Miller v. Florida, supra, 482 U.S. at 431, 107 S. Ct. at 2452, 96 L. Ed. 2d at 361).
A judicial decision may be considered an ex post facto law where its enlargement of a criminal statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Id. at 490-91 (quoting Rogers v. Tennessee, 532 U.S. 451, 455, 121 S. Ct. 1693, 1697, 149 L. Ed.2d 697, 704 (2001)). Given the language in the statute providing for a period of incarceration, the holding in Luthe is not "unexpected or indefensible." We note that the defendant in Luthe did not raise an ex post facto argument.
Further, a judicial decision that does not increase the range of the defendant's sentence or retroactively apply a new statutory maximum does not disadvantage the defendant. See State v. Natale, supra, 184 N.J. at 489-92 (concluding that eliminating presumptive terms in the statutory sentencing scheme and allowing sentences up to the statutory maximum did not violate the prohibition against ex post facto laws). Here, when defendant committed the offense, indisputably, the statutory penalty was 180 days in jail. Since Luthe did not increase the maximum sentence that defendant could receive for the offense, it did not disadvantage him and the ex post facto prohibition has not been violated.
We further add that the correction of an illegal sentence does not implicate double jeopardy principles even if a defendant has already begun to serve the sentence. State v. Baker, 270 N.J. Super. 55, 72 (App. Div.), aff'd 138 N.J. 89 (1994), cert. denied, 528 U.S. 911, 120 S. Ct. 261, 145 L. Ed.2d 219 (1999).
The order on appeal dated January 4, 2008, merely states that "[t]he decision of the municipal court to vacate the SLAP sentence is affirmed for the reasons stated on the record." It then stayed the matter twenty days pending appeal. The order does not expressly set forth the alternative of vacating the plea as directed by the judge. Accordingly, while we affirm the vacation of the SLAP sentence, we stay the sentence for a period of forty-five days to provide defendant time to move in the Law Division to vacate the plea.
Although the record refers to a plea agreement, defendant did not attempt to evade the substantive DWI charge, but only pled guilty in accordance with the then local understanding that the sentence could be served in a SLAP rather than in jail. As a result, we do not believe that the plea runs afoul of the general prohibition of plea agreements in DWI cases. See Guidelines for Operation of Plea Bargains in the Municipal Courts in New Jersey, Pressler, Current N.J. Court Rules, Appendix, Part VII, Guideline 4 at 2239 (2009).
A-2516-07T4
February 26, 2009
State v MAHESHKUM PATEL- Remand permitted for judge to render decision on observation DWI
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3558-06T43558-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAHESHKUM PATEL,
Defendant-Appellant.
____________________________
Argued October 15, 2008 - Decided
Before Judges Fuentes, Gilroy and Chambers.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-017.
Joel I. Rachmiel argued the cause for appellant.
Paula C. Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).
PER CURIAM
Following a trial de novo in the Law Division, defendant was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). Because it was defendant's third DWI conviction, he was sentenced to 180 days in jail, with a maximum of 90 days to be served in an approved alcohol in-patient rehabilitation program; a ten-year suspension of his driving privileges and of his motor vehicle registration; and a $1,000 fine. The court also imposed all other appropriate costs, assessments, penalties and surcharges. However, the custodial portion of defendant's sentence was stayed pending the filing of a notice of appeal. Following the filing of his notice of appeal, defendant served ninety days of his custodial sentence in an in-patient alcoholic rehabilitation program. On April 11, 2007, the Law Division entered an order staying the remainder of defendant's custodial sentence, pending appeal. For reasons that follow, we remand this matter to the Law Division for further proceedings consistent with this opinion, and retain jurisdiction.
I.
On September 16, 2005, while operating his motor vehicle, defendant was involved in a one-car accident when his motor vehicle left the roadway and struck a tree. As a result of the collision, the motor vehicle's airbag deployed. Defendant did not lose consciousness and remained in his vehicle where he telephoned his wife and called for a tow truck. The police arrived at the scene at approximately 8:09 p.m.
Patrolman Brian Ahlert of the Florham Park Police Department was the first officer to approach defendant. Ahlert inquired whether defendant suffered any injuries or was in need of medical assistance. Defendant responded no to both questions. When Ahlert asked how the accident occurred, defendant only told the officer that the car had pulled to the right. During this conversation, Ahlert detected an odor of alcoholic beverage emanating from defendant's breath. Ahlert's observations of the accident scene disclosed that the motor vehicle suffered heavy front-end damage and there were 50 feet of tire tracks in the grass shoulder, indicating that the vehicle drifted off the travel portion of the roadway in a straight line, striking a tree and traffic sign approximately five feet from the edge of the road.
While Ahlert talked to defendant, Patrolman David Rubelowsky and several other officers of the Florham Park Police Department arrived on the scene, together with David Paige and his wife, both members of the Florham Park Memorial First Aid Squad. Also arriving at the scene at approximately the same time as the police, was defendant's wife.
On arrival, Paige approached defendant to evaluate whether defendant needed medical assistance. Defendant informed Paige that, although he felt pain in his knees, he did not lose consciousness; did not have neck or back pain; knew his name; knew where he was; and knew what had happened. Although Paige advised defendant that the ambulance squad was available to take him to the hospital for further evaluation, defendant indicated that he did not want to go. At one point, defendant began to demonstrate to Paige "that his knees were fine . . . [by dipping] down and [standing] back up . . . ." By dipping down, Paige explained that defendant "bent his knees a few inches" and said "see, my knees -- I'm fine."
In the interim, Ahlert made observation of the interior of defendant's motor vehicle. The patrolman observed a small empty airplane-size bottle of Johnny Walker Black Label scotch whiskey on the front passenger floorboard, and a one-half empty bottle (750 ml) of Sawyer Cellars Cabernet Sauvignon wine on the rear passenger floorboard. Based on his initial observations of defendant, Ahlert requested defendant to perform three field sobriety tests. Before administering the tests, in responding to Ahlert's questions, defendant denied that he had any injuries or other medical conditions that could have affected his performance of the sobriety tests.
Ahlert first administered the horizontal gaze nystagmus (HGN) test. Ahlert instructed defendant not to move his head when following the movement of the officer's pen; just to follow the movement of the pen with his eyes. Defendant failed to follow the instruction and moved his head while attempting to maintain visual sight of the officer's pen. Because there was debris on the roadway, the officer had the roadway swept prior to requesting defendant to perform the next two tests in front of his patrol vehicle.
Ahlert requested defendant to perform the heel-to-toe walking test by taking nine steps out, touching heel-to-toe in a straight line, turning, and walking nine steps back in the same fashion. After the officer demonstrated the test to defendant, defendant attempted to perform the test but took eleven steps out, not heel-to-toe but side-by-side, and then took thirteen steps back in the same manner.
The third test was the one-leg stand test. Defendant was instructed to raise one foot of his choice six inches off the ground, slightly out in front of him, and to count to thirty. On his first attempt, defendant did not raise his foot out in front of him, but rather raised it directly underneath his body. On his second attempt, defendant placed his foot down several times to maintain balance. Based on his observations, Ahlert formed an opinion that defendant was intoxicated. Defendant was arrested; placed into the rear of Ahlert's patrol vehicle; and transported to police headquarters.
On arrival at police headquarters, defendant was seated in the booking room approximately thirty-five feet away from the Sally Port door. Defendant was initially asked questions concerning his name, address, age, and other questions of a similar nature. Ahlert then gave defendant his Miranda warnings. After informing the patrolman that he understood his Miranda rights, defendant responded to the officer's questions concerning the alcohol he consumed that evening. Defendant informed Ahlert that he had three drinks that evening, one glass of scotch and two small glasses of wine, consuming the first drink at approximately 6:00 p.m. and the last drink at approximately 7:00 p.m. When asked whether he would provide a breath sample, defendant answered in the affirmative. While walking a short distance to the room where the Alcotest breath test instrument was located, Ahlert observed defendant stumble, almost walking into a wall. The breath test was administered by Rubelowsky outside of Ahlert's presence.
On completion of defendant's breath test, Ahlert met with defendant again in the booking room, completed defendant's paperwork and released defendant into the custody of his wife at 9:49 p.m. Ahlert described his observations of defendant's physical manifestations throughout the entire incident as: defendant swayed and staggered as he walked; swayed while he stood; spoke with a slightly slurred speech and in a slow manner; and had bloodshot and watery eyes with droopy eyelids.
In the Municipal Court proceedings, Ahlert and Paige testified in accord with the aforementioned. In addition, the State offered testimony of Patrolman Rubelowsky and placed in evidence a videotape taken with the camera in Ahlert's patrol vehicle. The videotape showed defendant's performance of the heel-to-toe walk and one-leg stand tests at the accident scene and of defendant seated in the rear of Ahlert's patrol vehicle as the vehicle proceeded to police headquarters.
Rubelowsky testified as follows. On his arrival at the accident scene, defendant was standing outside of his motor vehicle. Rubelowsky detected some fumes emanating from the airbag deployment and moved everyone away from defendant's motor vehicle to an area in front of Ahlert's patrol vehicle. While doing so, Rubelowsky observed the small scotch whiskey bottle and wine bottle in defendant's motor vehicle. On arrival of the first aid squad members, Rubelowsky heard defendant inform Paige that he was a doctor; he was fine; he did not need to go to the hospital and did not want medical attention. After he observed defendant fail the field sobriety tests, Rubelowsky formed an opinion of defendant's ability to operate a motor vehicle.
That he was not -- he was unsafe to be driving a motor vehicle on the road. He was intoxicated, the odor of alcohol was on his breath. His clothing was disheveled. His eyes were bloodshot and watery. He had been in an accident. . . . And [based on] my training and experience, and I formulated an opinion on Mr. Patel that he was under the influence of alcohol and he should not [have been] driving.
Rubelowsky followed Ahlert from the accident scene to the police headquarters in a separate police vehicle. While walking to the booking room, Rubelowsky opined that defendant swayed and "held out to walls for balance." Rubelowsky, a certified Alcotest operator, administered the breath test to defendant. Prior to administering the test, however, Rubelowsky inadvertently placed the wrong time of defendant's arrest into the Alcotest instrument. Instead of placing the time of 8:39 p.m. when defendant was arrested, he typed in 8:09 p.m., the time of the motor vehicle accident.
Defendant gave three breath samples. The first sample was provided at 8:54 p.m., but the minimum volume of breath was not achieved, resulting in the instrument not providing a blood-alcohol concentration (BAC) reading. Defendant provided a second sample at 8:58 p.m. that resulted in an IR reading and an EC reading of .205%. A third sample at 9:01 p.m. resulted in an IR reading of .216% and an EC reading of .213%. The Alcotest device reported as the final BAC test result, the lowest of the four IR and EC readings, truncated to two decimal places, or .20%.
Defendant's testimony as to the cause of the accident and his physical condition immediately thereafter contradicted that of the police officers and Paige. Defendant testified that on the day of the accident, after he finished regular office hours, he traveled to Orange to meet with Dr. Labessiere to discuss his possible purchase of Labessiere's office building on Northfield Avenue. Accompanying defendant, but in a separate automobile, was defendant's accountant. Defendant arrived at approximately 6:15 or 6:30 p.m., and the meeting lasted approximately one hour and fifteen minutes. During that time, defendant consumed a small, airplane-size bottle of Johnny Walker scotch whiskey that was provided to him by Labessiere. Following that, Labessiere offered defendant and his accountant some "French wine." Defendant testified that only one bottle was opened, and that both he and Labessiere consumed two small glasses of the wine, and his accountant consumed one small glass.
After the meeting, Labessiere gave the one-half bottle of wine to defendant and defendant placed the bottle on the rear floor of his motor vehicle prior to leaving the parking lot. While walking to his vehicle, defendant remembered that he had the empty airplane-size bottle of scotch in his pocket, and he placed that on the right front passenger seat. On traveling home, a distance of approximately eighteen miles, defendant's emergency beeper sounded, and while he attempted to observe the telephone number displayed in his pager, his vehicle left the roadway and struck the sign and tree.
Defendant testified that when the airbag deployed, it struck him in his face and chest. After impact, he sat in his motor vehicle for a few minutes, not knowing what had happened. Although he did not state from what part of his body, defendant testified that he bled heavily. He did not feel any pain, but had a burning sensation in his eyes, his ears were clogged and his nose was stuffy.
Defendant recalled conversing with Ahlert and informing the officer that he was okay. He acknowledged that when interviewed by the police and Paige, he told them he was fine, did not feel any pain except for his knees, and declined to go to the hospital or receive treatment. As to the statements he made to Ahlert concerning the happening of the accident, defendant denies that Ahlert asked how the accident happened; and defendant did not volunteer any information concerning his beeper sounding prior to the accident.
On release from police headquarters, defendant proceeded home, where for the first time he felt tenderness in his chest and observed swelling of both knees and a laceration of between three to four inches in length on his left leg, directly below the knee. The next morning, at approximately 10:00 or 11:00 a.m., defendant went to the Irvington General Hospital emergency room, complaining of pain to his chest, wrists and knees. After x-rays were taken of those parts of his body, defendant was released. Six days later, defendant presented himself to Dr. Burgess Lee Berlin, an orthopedic surgeon who had previously treated defendant. The doctor has known defendant for approximately eleven years, both of them having been on staff at the same hospital. Defendant became Berlin's patient approximately four to five years prior.
Berlin testified concerning his examination of defendant. On September 22, 2006, after taking a medical history from defendant concerning the injuries he complained of, the doctor examined defendant. Berlin detected spasms in defendant's lower back; swelling of both knees; and an infected 4-1/2 inch laceration on the left leg immediately below the knee. Prior examinations of defendant had not disclosed any evidence of injuries to defendant's spine or to his knee cartilages. Based on defendant's complaints and his examination, Berlin clinically diagnosed defendant as possibly suffering from torn cartilages in both knees and a slipped disk.
On October 5, 2005, defendant submitted to MRI examinations. The MRI on the lower back disclosed a herniation at the L-3 - 4 level. The MRI's of the knees disclosed torn minisci of both knees. The doctor opined that the injuries to defendant's back and left knee were causally related to the motor vehicle accident. It was the doctor's opinion that defendant could not perform the field sobriety tests at the scene because of the injuries he sustained in the accident.
II.
The Municipal Court determined that the Alcotest instrument was in proper working order, that Rubelowsky was a certified Alcotest operator; and that the breath test was administered in accordance with proper procedures. Accordingly, the Municipal Court determined that defendant's BAC reading exceeded the statutory per se violation level of .08. The Municipal Court also accepted Patrolmen Ahlert's and Rubelowsky's opinions that defendant was intoxicated based on their observations of defendant at the scene, including his performance of the field sobriety tests, and at headquarters. Thus, the court also determined defendant was guilty of driving while intoxicated based on his physical condition.
Concerning defendant's testimony as to how the accident happened and of not being able to perform the field sobriety tests because of injuries suffered in the accident, the court determined defendant not credible. As to how the accident happened, the court found that, contrary to defendant's testimony that his pager had sounded and the accident occurred when he attempted to look at the pager to determine its responsive telephone number, defendant only informed Ahlert that his motor vehicle pulled to the right. As to defendant's inability to perform the field sobriety tests, the court noted that defendant had informed both the police and first-aid squad members he had not suffered any injuries requiring medical assistance; and that, although defendant felt some pain in his knees, he told Ahlert and Paige that he was able to perform the field tests.
The court also determined defendant's testimony concerning the amount of alcohol he had consumed not credible. Although defendant testified that Labessiere had opened a bottle of French wine, the bottle found in defendant's car was "a bottle of red wine, Napa Valley red wine. And the doctor's testimony is that five glasses came out of that bottle and it still left a half a bottle of wine. That just doesn't make a whole lot of sense to me unless they were shot glasses."
On appeal de novo, the Law Division also determined defendant guilty of driving under the influence based on the Alcotest reading. As to defendant's physical condition, the trial judge gave significant weight to the video showing defendant attempting to perform the heel-to-toe walk and the one-leg stand test. The court noted that the tape showed defendant's failure to comply with Ahlert's instructions while Berlin had only opined that defendant could not physically perform the tests because of his injuries, not that his mental faculties had been impaired by the injuries. The trial judge also rejected defendant's testimony concerning his inability to perform the balance test because of injuries: "[defendant] indicated that he could walk back [to Ahlert's] car without any difficulty. If that were the case, then obviously the knees and all those other injuries weren't bothering him. He indicated he was fine."
In determining defendant guilty, the judge stated:
So where does that leave me through all of this? Well, first of all, the readings are admissible. The readings to the lowest two digits are .20. That certainly exceeds the lawfully permissible reading. And it's a per se violation.
As far as observations, you've got the operation of the vehicle. You've got the odor of the alcohol. You've got the tests that -- I'm talking about the neurological and -- the neurophysical test, the failure to obey the instructions, the opinions of the police officers, the various things I've already referenced. And I may be forgetting some of them.
Obviously, Dr. Berlin['s] and [defendant's] . . . testimony was not accepted. I have to give due deference, or if it was accepted, it was accepted in a limited fashion. So based upon everything I've said and all the findings I've made, and it's taken me quite some time to do this, but I know how important it is, not only to the State but seemingly more important to [defendant], who has a practice, who has patients, who has people that rely upon him, who has to get to various hospitals, who on a third offence is subject to some mandatory penalties, I thought it deserved the time that I have given it.
III.
On appeal, defendant argues:
POINT I.
THE LAW DIVISION CONVICTION IS PREMISED ON A PER SE VIOLATION ONLY BASED ON AN ALCOTEST READING OF .20%.
POINT II.
THE ALCOTEST READING IS UNRELIABLE AND INADMISSIBLE FOR THE OPERATOR'S FAILURE TO OBSERVE DEFENDANT FOR THE TWENTY MINUTES.
POINT III.
THE MUNICIPAL COURT JUDGE IMPROPERLY REFUSED TO PERMIT DEFENDANT'S EXPERT TO TESTIFY.
Appeals from the Municipal Court to the Law Division are de novo. R. 3:23-8. The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge must make his or her "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983), certif. denied, 95 N.J. 197 (1983). The trial judge's function differs from this court's function. "His [or hers] is not the appellate function governed by the substantial evidence rule[,] but rather an independent fact-finding function . . . ." Ibid.
Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (internal citations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
IV.
The State carries the burden of proving beyond a reasonable doubt that a defendant is guilty of driving while intoxicated. Emery, supra, 27 N.J. at 353. N.J.S.A. 39:4-50(a) creates one offense that may be proven "through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). "A failure of proof on one aspect is not, by any measure, an acquittal." Ibid.
Proof of a defendant's physical condition typically consists of proof by testimony of the police officer's observations. State v. Weber, 220 N.J. Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987). A police officer is permitted to give his or her lay opinion as to whether a defendant is under the influence of alcohol. State v. Bealor, 187 N.J. 574, 585 (2006) (holding that "because sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication"); see also State v. Irelan, 375 N.J. Super. 100, 106-07 (App. Div. 2005). Additionally, the trial court may rely on direct and circumstantial evidence to determine whether the elements of the offense are met. Emery, supra, 27 N.J. at 356. It is against these principles that we consider defendant's arguments.
In Point I, defendant argues that the Law Division judge erred by not dismissing the charge of operating the motor vehicle under the influence of alcohol based on the State's failure to prove probable cause for his arrest. Based on the record before us, we determine this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant also argues in Point I that if we conclude that the Alcotest BAC reading is inadmissible for reasons argued in Point II of his brief, we should remand this matter to the Law Division to enter a judgment of not guilty because the Law Division judge did not expressly determine defendant's guilt based on his physical condition, only on his BAC level. At oral argument, we raised the issue of whether remanding this matter to the Law Division to render a determination of defendant's guilt based on defendant's physical condition would violate the principle of double jeopardy. We requested counsel to file supplemental memorandums of law on the issue. Defendant contends that any remand to the Law Division for further findings on this matter would constitute double jeopardy and a violation of due process and fundamental fairness. We conclude otherwise.
Initially, we agree with defendant's argument that, although the Law Division judge expressly determined defendant's guilt under the per se standard of N.J.S.A. 39:4-50(a), he did not expressly state that he found defendant guilty of the charge based on his physical condition. However, we disagree with defendant's argument that remanding the matter for the Law Division judge to expressly state whether he finds defendant guilty or not guilty based on his physical condition is prohibited by the principle of double jeopardy, due process, and fundamental fairness.
"The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Widmaier, 157 N.J. 475, 489-90 (1999). Here, the Law Division judge did not make a "not guilty" finding based on defendant's condition, nor did he unequivocally find that defendant was guilty of anything more than the per se violation of N.J.S.A. 39:4-50(a). What the judge did was note the observations and opinions of the officers referred to earlier in his decision, but he failed to make a definitive conclusion as to what those observations were indicative of - defendant's guilt or innocence. Because a remand will not subject defendant to a conviction after an acquittal, or to the possibility of conviction of a more serious offense, we conclude that such remand would not violate the principles of double jeopardy or due process. Kashi, supra, 180 N.J. at 48; see State v. Smith, 253 N.J. Super. 145, 148-49 (App. Div. 1992) (remanding a bail jumping conviction, N.J.S.A. 2C:29-7, to the Law Division for the trial judge to make further findings of fact and conclusions of law on the existing record as to whether defendant had fled to avoid apprehension for "a crime of third-degree or greater" necessary to sustain a conviction for third-degree bail jumping).
Defendant cites State v. Sparks, 261 N.J. Super. 458 (App. Div. 1993), in support of his argument that a remand would be improper. We find defendant's reliance on Sparks misplaced. In Sparks, defendant was charged with the disorderly persons offense of possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10a(4). Id. at 459. At the Municipal Court proceeding, the judge admitted evidence of a laboratory report that should have been excluded as untimely. Id. at 460-61. On de novo review, the Law Division correctly found that the evidence was inappropriately admitted, but improperly remanded the matter to the Municipal Court for a retrial. Ibid. Reversing and remanding for a judgment of acquittal, we explained that "[t]he hearing in the Law Division required exclusion of the lab certificate and consideration of the case solely on the remaining testimony." Id. at 461-62. Because "[e]xclusion of the laboratory certificate left the State without proof necessary to sustain a conviction[,]" we acquitted the defendant. Id. at 460.
This case is distinguishable from Sparks because, even if the Alcotest result is determined inadmissible, defendant can still be convicted based on police observations of his physical manifestations and the police officers' opinions as to defendant's intoxication. Kashi, supra, 360 N.J. Super. at 545. Moreover, we only acquitted the defendant in Sparks because of the fact that the conviction could not be sustained without the inadmissible evidence. Ibid. It follows that, if in Sparks the State had sufficient evidence other than the lab report to convict the defendant, we would have permitted the remand and retrial.
We are satisfied that a limited remand to the Law Division for the trial judge to make an expressed determination of defendant's guilt or innocence based on defendant's physical condition is not prohibited by the principles of double jeopardy, due process, or fundamental fairness. We are also satisfied that that remand should occur prior to our addressing defendant's arguments in Point II and III of his brief, with this court retaining jurisdiction in the matter. Accordingly, we remand the matter to the Law Division for the judge to make an expressed determination of defendant's guilt or innocence based on defendant's physical condition. No additional evidence shall be admitted on remand; rather, the judge's determination must be based on the existing record. The judge shall conclude the remand proceeding and advise this court of his findings and conclusions within thirty days of the date of this opinion.
Remanded to the Law Division for further proceedings consisting with this opinion; we retain jurisdiction.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966)
The Alcotest instrument used to test defendant was the Alcotest Model No. 7110 MKIII (the Alcotest). This Alcotest, when utilized with New Jersey Firmware version 3.11, was determined generally scientifically reliable, with certain modifications, to "permit its results to be admissible . . . to prove a per se violation of [N.J.S.A. 39:4-50(a)]." State v. Chun, 194 N.J. 54, 65, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed.2d 41 (2008). The present matter was tried in both the Municipal Court and the Law Division prior to the Supreme Court's decision.
"The Altotest uses both infrared (IR) technology and electrical chemical (EC) oxidation in a fuel cell to measure breath alcohol concentration. The devise therefore produces two test results for each breath sample, one derived from an IR reading and the other, by and large, from an EC reading." Id. at 78.
Truncating "involves simply reporting the first and second decimal places and dropping the third. . . . The effect of truncating, as opposed to rounding, is to under-report the concentration, to the benefit of the arrestee." Id. at 83.
As to defendant's inability to perform the field sobriety tests, the court only considered defendant's performance of the heel-to-toe walk test and the one-leg stand test. The court did not consider the officer's testimony as to defendant's inability to perform the HGN test in determining defendant's guilt; the court, however, did consider defendant's failure to follow Ahlert's instructions in attempting the HGN test in determining probable cause for the arrest. See State v. Doriguzzi, 334 N.J. Super. 530, 546 (App. Div. 2000) (declining to take judicial notice of the general acceptance of the reliability of the HGN test as evidence of a defendant's intoxication).
23
A-3558-06T4
February 26, 2009
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3558-06T43558-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAHESHKUM PATEL,
Defendant-Appellant.
____________________________
Argued October 15, 2008 - Decided
Before Judges Fuentes, Gilroy and Chambers.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-017.
Joel I. Rachmiel argued the cause for appellant.
Paula C. Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).
PER CURIAM
Following a trial de novo in the Law Division, defendant was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). Because it was defendant's third DWI conviction, he was sentenced to 180 days in jail, with a maximum of 90 days to be served in an approved alcohol in-patient rehabilitation program; a ten-year suspension of his driving privileges and of his motor vehicle registration; and a $1,000 fine. The court also imposed all other appropriate costs, assessments, penalties and surcharges. However, the custodial portion of defendant's sentence was stayed pending the filing of a notice of appeal. Following the filing of his notice of appeal, defendant served ninety days of his custodial sentence in an in-patient alcoholic rehabilitation program. On April 11, 2007, the Law Division entered an order staying the remainder of defendant's custodial sentence, pending appeal. For reasons that follow, we remand this matter to the Law Division for further proceedings consistent with this opinion, and retain jurisdiction.
I.
On September 16, 2005, while operating his motor vehicle, defendant was involved in a one-car accident when his motor vehicle left the roadway and struck a tree. As a result of the collision, the motor vehicle's airbag deployed. Defendant did not lose consciousness and remained in his vehicle where he telephoned his wife and called for a tow truck. The police arrived at the scene at approximately 8:09 p.m.
Patrolman Brian Ahlert of the Florham Park Police Department was the first officer to approach defendant. Ahlert inquired whether defendant suffered any injuries or was in need of medical assistance. Defendant responded no to both questions. When Ahlert asked how the accident occurred, defendant only told the officer that the car had pulled to the right. During this conversation, Ahlert detected an odor of alcoholic beverage emanating from defendant's breath. Ahlert's observations of the accident scene disclosed that the motor vehicle suffered heavy front-end damage and there were 50 feet of tire tracks in the grass shoulder, indicating that the vehicle drifted off the travel portion of the roadway in a straight line, striking a tree and traffic sign approximately five feet from the edge of the road.
While Ahlert talked to defendant, Patrolman David Rubelowsky and several other officers of the Florham Park Police Department arrived on the scene, together with David Paige and his wife, both members of the Florham Park Memorial First Aid Squad. Also arriving at the scene at approximately the same time as the police, was defendant's wife.
On arrival, Paige approached defendant to evaluate whether defendant needed medical assistance. Defendant informed Paige that, although he felt pain in his knees, he did not lose consciousness; did not have neck or back pain; knew his name; knew where he was; and knew what had happened. Although Paige advised defendant that the ambulance squad was available to take him to the hospital for further evaluation, defendant indicated that he did not want to go. At one point, defendant began to demonstrate to Paige "that his knees were fine . . . [by dipping] down and [standing] back up . . . ." By dipping down, Paige explained that defendant "bent his knees a few inches" and said "see, my knees -- I'm fine."
In the interim, Ahlert made observation of the interior of defendant's motor vehicle. The patrolman observed a small empty airplane-size bottle of Johnny Walker Black Label scotch whiskey on the front passenger floorboard, and a one-half empty bottle (750 ml) of Sawyer Cellars Cabernet Sauvignon wine on the rear passenger floorboard. Based on his initial observations of defendant, Ahlert requested defendant to perform three field sobriety tests. Before administering the tests, in responding to Ahlert's questions, defendant denied that he had any injuries or other medical conditions that could have affected his performance of the sobriety tests.
Ahlert first administered the horizontal gaze nystagmus (HGN) test. Ahlert instructed defendant not to move his head when following the movement of the officer's pen; just to follow the movement of the pen with his eyes. Defendant failed to follow the instruction and moved his head while attempting to maintain visual sight of the officer's pen. Because there was debris on the roadway, the officer had the roadway swept prior to requesting defendant to perform the next two tests in front of his patrol vehicle.
Ahlert requested defendant to perform the heel-to-toe walking test by taking nine steps out, touching heel-to-toe in a straight line, turning, and walking nine steps back in the same fashion. After the officer demonstrated the test to defendant, defendant attempted to perform the test but took eleven steps out, not heel-to-toe but side-by-side, and then took thirteen steps back in the same manner.
The third test was the one-leg stand test. Defendant was instructed to raise one foot of his choice six inches off the ground, slightly out in front of him, and to count to thirty. On his first attempt, defendant did not raise his foot out in front of him, but rather raised it directly underneath his body. On his second attempt, defendant placed his foot down several times to maintain balance. Based on his observations, Ahlert formed an opinion that defendant was intoxicated. Defendant was arrested; placed into the rear of Ahlert's patrol vehicle; and transported to police headquarters.
On arrival at police headquarters, defendant was seated in the booking room approximately thirty-five feet away from the Sally Port door. Defendant was initially asked questions concerning his name, address, age, and other questions of a similar nature. Ahlert then gave defendant his Miranda warnings. After informing the patrolman that he understood his Miranda rights, defendant responded to the officer's questions concerning the alcohol he consumed that evening. Defendant informed Ahlert that he had three drinks that evening, one glass of scotch and two small glasses of wine, consuming the first drink at approximately 6:00 p.m. and the last drink at approximately 7:00 p.m. When asked whether he would provide a breath sample, defendant answered in the affirmative. While walking a short distance to the room where the Alcotest breath test instrument was located, Ahlert observed defendant stumble, almost walking into a wall. The breath test was administered by Rubelowsky outside of Ahlert's presence.
On completion of defendant's breath test, Ahlert met with defendant again in the booking room, completed defendant's paperwork and released defendant into the custody of his wife at 9:49 p.m. Ahlert described his observations of defendant's physical manifestations throughout the entire incident as: defendant swayed and staggered as he walked; swayed while he stood; spoke with a slightly slurred speech and in a slow manner; and had bloodshot and watery eyes with droopy eyelids.
In the Municipal Court proceedings, Ahlert and Paige testified in accord with the aforementioned. In addition, the State offered testimony of Patrolman Rubelowsky and placed in evidence a videotape taken with the camera in Ahlert's patrol vehicle. The videotape showed defendant's performance of the heel-to-toe walk and one-leg stand tests at the accident scene and of defendant seated in the rear of Ahlert's patrol vehicle as the vehicle proceeded to police headquarters.
Rubelowsky testified as follows. On his arrival at the accident scene, defendant was standing outside of his motor vehicle. Rubelowsky detected some fumes emanating from the airbag deployment and moved everyone away from defendant's motor vehicle to an area in front of Ahlert's patrol vehicle. While doing so, Rubelowsky observed the small scotch whiskey bottle and wine bottle in defendant's motor vehicle. On arrival of the first aid squad members, Rubelowsky heard defendant inform Paige that he was a doctor; he was fine; he did not need to go to the hospital and did not want medical attention. After he observed defendant fail the field sobriety tests, Rubelowsky formed an opinion of defendant's ability to operate a motor vehicle.
That he was not -- he was unsafe to be driving a motor vehicle on the road. He was intoxicated, the odor of alcohol was on his breath. His clothing was disheveled. His eyes were bloodshot and watery. He had been in an accident. . . . And [based on] my training and experience, and I formulated an opinion on Mr. Patel that he was under the influence of alcohol and he should not [have been] driving.
Rubelowsky followed Ahlert from the accident scene to the police headquarters in a separate police vehicle. While walking to the booking room, Rubelowsky opined that defendant swayed and "held out to walls for balance." Rubelowsky, a certified Alcotest operator, administered the breath test to defendant. Prior to administering the test, however, Rubelowsky inadvertently placed the wrong time of defendant's arrest into the Alcotest instrument. Instead of placing the time of 8:39 p.m. when defendant was arrested, he typed in 8:09 p.m., the time of the motor vehicle accident.
Defendant gave three breath samples. The first sample was provided at 8:54 p.m., but the minimum volume of breath was not achieved, resulting in the instrument not providing a blood-alcohol concentration (BAC) reading. Defendant provided a second sample at 8:58 p.m. that resulted in an IR reading and an EC reading of .205%. A third sample at 9:01 p.m. resulted in an IR reading of .216% and an EC reading of .213%. The Alcotest device reported as the final BAC test result, the lowest of the four IR and EC readings, truncated to two decimal places, or .20%.
Defendant's testimony as to the cause of the accident and his physical condition immediately thereafter contradicted that of the police officers and Paige. Defendant testified that on the day of the accident, after he finished regular office hours, he traveled to Orange to meet with Dr. Labessiere to discuss his possible purchase of Labessiere's office building on Northfield Avenue. Accompanying defendant, but in a separate automobile, was defendant's accountant. Defendant arrived at approximately 6:15 or 6:30 p.m., and the meeting lasted approximately one hour and fifteen minutes. During that time, defendant consumed a small, airplane-size bottle of Johnny Walker scotch whiskey that was provided to him by Labessiere. Following that, Labessiere offered defendant and his accountant some "French wine." Defendant testified that only one bottle was opened, and that both he and Labessiere consumed two small glasses of the wine, and his accountant consumed one small glass.
After the meeting, Labessiere gave the one-half bottle of wine to defendant and defendant placed the bottle on the rear floor of his motor vehicle prior to leaving the parking lot. While walking to his vehicle, defendant remembered that he had the empty airplane-size bottle of scotch in his pocket, and he placed that on the right front passenger seat. On traveling home, a distance of approximately eighteen miles, defendant's emergency beeper sounded, and while he attempted to observe the telephone number displayed in his pager, his vehicle left the roadway and struck the sign and tree.
Defendant testified that when the airbag deployed, it struck him in his face and chest. After impact, he sat in his motor vehicle for a few minutes, not knowing what had happened. Although he did not state from what part of his body, defendant testified that he bled heavily. He did not feel any pain, but had a burning sensation in his eyes, his ears were clogged and his nose was stuffy.
Defendant recalled conversing with Ahlert and informing the officer that he was okay. He acknowledged that when interviewed by the police and Paige, he told them he was fine, did not feel any pain except for his knees, and declined to go to the hospital or receive treatment. As to the statements he made to Ahlert concerning the happening of the accident, defendant denies that Ahlert asked how the accident happened; and defendant did not volunteer any information concerning his beeper sounding prior to the accident.
On release from police headquarters, defendant proceeded home, where for the first time he felt tenderness in his chest and observed swelling of both knees and a laceration of between three to four inches in length on his left leg, directly below the knee. The next morning, at approximately 10:00 or 11:00 a.m., defendant went to the Irvington General Hospital emergency room, complaining of pain to his chest, wrists and knees. After x-rays were taken of those parts of his body, defendant was released. Six days later, defendant presented himself to Dr. Burgess Lee Berlin, an orthopedic surgeon who had previously treated defendant. The doctor has known defendant for approximately eleven years, both of them having been on staff at the same hospital. Defendant became Berlin's patient approximately four to five years prior.
Berlin testified concerning his examination of defendant. On September 22, 2006, after taking a medical history from defendant concerning the injuries he complained of, the doctor examined defendant. Berlin detected spasms in defendant's lower back; swelling of both knees; and an infected 4-1/2 inch laceration on the left leg immediately below the knee. Prior examinations of defendant had not disclosed any evidence of injuries to defendant's spine or to his knee cartilages. Based on defendant's complaints and his examination, Berlin clinically diagnosed defendant as possibly suffering from torn cartilages in both knees and a slipped disk.
On October 5, 2005, defendant submitted to MRI examinations. The MRI on the lower back disclosed a herniation at the L-3 - 4 level. The MRI's of the knees disclosed torn minisci of both knees. The doctor opined that the injuries to defendant's back and left knee were causally related to the motor vehicle accident. It was the doctor's opinion that defendant could not perform the field sobriety tests at the scene because of the injuries he sustained in the accident.
II.
The Municipal Court determined that the Alcotest instrument was in proper working order, that Rubelowsky was a certified Alcotest operator; and that the breath test was administered in accordance with proper procedures. Accordingly, the Municipal Court determined that defendant's BAC reading exceeded the statutory per se violation level of .08. The Municipal Court also accepted Patrolmen Ahlert's and Rubelowsky's opinions that defendant was intoxicated based on their observations of defendant at the scene, including his performance of the field sobriety tests, and at headquarters. Thus, the court also determined defendant was guilty of driving while intoxicated based on his physical condition.
Concerning defendant's testimony as to how the accident happened and of not being able to perform the field sobriety tests because of injuries suffered in the accident, the court determined defendant not credible. As to how the accident happened, the court found that, contrary to defendant's testimony that his pager had sounded and the accident occurred when he attempted to look at the pager to determine its responsive telephone number, defendant only informed Ahlert that his motor vehicle pulled to the right. As to defendant's inability to perform the field sobriety tests, the court noted that defendant had informed both the police and first-aid squad members he had not suffered any injuries requiring medical assistance; and that, although defendant felt some pain in his knees, he told Ahlert and Paige that he was able to perform the field tests.
The court also determined defendant's testimony concerning the amount of alcohol he had consumed not credible. Although defendant testified that Labessiere had opened a bottle of French wine, the bottle found in defendant's car was "a bottle of red wine, Napa Valley red wine. And the doctor's testimony is that five glasses came out of that bottle and it still left a half a bottle of wine. That just doesn't make a whole lot of sense to me unless they were shot glasses."
On appeal de novo, the Law Division also determined defendant guilty of driving under the influence based on the Alcotest reading. As to defendant's physical condition, the trial judge gave significant weight to the video showing defendant attempting to perform the heel-to-toe walk and the one-leg stand test. The court noted that the tape showed defendant's failure to comply with Ahlert's instructions while Berlin had only opined that defendant could not physically perform the tests because of his injuries, not that his mental faculties had been impaired by the injuries. The trial judge also rejected defendant's testimony concerning his inability to perform the balance test because of injuries: "[defendant] indicated that he could walk back [to Ahlert's] car without any difficulty. If that were the case, then obviously the knees and all those other injuries weren't bothering him. He indicated he was fine."
In determining defendant guilty, the judge stated:
So where does that leave me through all of this? Well, first of all, the readings are admissible. The readings to the lowest two digits are .20. That certainly exceeds the lawfully permissible reading. And it's a per se violation.
As far as observations, you've got the operation of the vehicle. You've got the odor of the alcohol. You've got the tests that -- I'm talking about the neurological and -- the neurophysical test, the failure to obey the instructions, the opinions of the police officers, the various things I've already referenced. And I may be forgetting some of them.
Obviously, Dr. Berlin['s] and [defendant's] . . . testimony was not accepted. I have to give due deference, or if it was accepted, it was accepted in a limited fashion. So based upon everything I've said and all the findings I've made, and it's taken me quite some time to do this, but I know how important it is, not only to the State but seemingly more important to [defendant], who has a practice, who has patients, who has people that rely upon him, who has to get to various hospitals, who on a third offence is subject to some mandatory penalties, I thought it deserved the time that I have given it.
III.
On appeal, defendant argues:
POINT I.
THE LAW DIVISION CONVICTION IS PREMISED ON A PER SE VIOLATION ONLY BASED ON AN ALCOTEST READING OF .20%.
POINT II.
THE ALCOTEST READING IS UNRELIABLE AND INADMISSIBLE FOR THE OPERATOR'S FAILURE TO OBSERVE DEFENDANT FOR THE TWENTY MINUTES.
POINT III.
THE MUNICIPAL COURT JUDGE IMPROPERLY REFUSED TO PERMIT DEFENDANT'S EXPERT TO TESTIFY.
Appeals from the Municipal Court to the Law Division are de novo. R. 3:23-8. The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge must make his or her "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983), certif. denied, 95 N.J. 197 (1983). The trial judge's function differs from this court's function. "His [or hers] is not the appellate function governed by the substantial evidence rule[,] but rather an independent fact-finding function . . . ." Ibid.
Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (internal citations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
IV.
The State carries the burden of proving beyond a reasonable doubt that a defendant is guilty of driving while intoxicated. Emery, supra, 27 N.J. at 353. N.J.S.A. 39:4-50(a) creates one offense that may be proven "through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). "A failure of proof on one aspect is not, by any measure, an acquittal." Ibid.
Proof of a defendant's physical condition typically consists of proof by testimony of the police officer's observations. State v. Weber, 220 N.J. Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987). A police officer is permitted to give his or her lay opinion as to whether a defendant is under the influence of alcohol. State v. Bealor, 187 N.J. 574, 585 (2006) (holding that "because sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication"); see also State v. Irelan, 375 N.J. Super. 100, 106-07 (App. Div. 2005). Additionally, the trial court may rely on direct and circumstantial evidence to determine whether the elements of the offense are met. Emery, supra, 27 N.J. at 356. It is against these principles that we consider defendant's arguments.
In Point I, defendant argues that the Law Division judge erred by not dismissing the charge of operating the motor vehicle under the influence of alcohol based on the State's failure to prove probable cause for his arrest. Based on the record before us, we determine this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant also argues in Point I that if we conclude that the Alcotest BAC reading is inadmissible for reasons argued in Point II of his brief, we should remand this matter to the Law Division to enter a judgment of not guilty because the Law Division judge did not expressly determine defendant's guilt based on his physical condition, only on his BAC level. At oral argument, we raised the issue of whether remanding this matter to the Law Division to render a determination of defendant's guilt based on defendant's physical condition would violate the principle of double jeopardy. We requested counsel to file supplemental memorandums of law on the issue. Defendant contends that any remand to the Law Division for further findings on this matter would constitute double jeopardy and a violation of due process and fundamental fairness. We conclude otherwise.
Initially, we agree with defendant's argument that, although the Law Division judge expressly determined defendant's guilt under the per se standard of N.J.S.A. 39:4-50(a), he did not expressly state that he found defendant guilty of the charge based on his physical condition. However, we disagree with defendant's argument that remanding the matter for the Law Division judge to expressly state whether he finds defendant guilty or not guilty based on his physical condition is prohibited by the principle of double jeopardy, due process, and fundamental fairness.
"The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Widmaier, 157 N.J. 475, 489-90 (1999). Here, the Law Division judge did not make a "not guilty" finding based on defendant's condition, nor did he unequivocally find that defendant was guilty of anything more than the per se violation of N.J.S.A. 39:4-50(a). What the judge did was note the observations and opinions of the officers referred to earlier in his decision, but he failed to make a definitive conclusion as to what those observations were indicative of - defendant's guilt or innocence. Because a remand will not subject defendant to a conviction after an acquittal, or to the possibility of conviction of a more serious offense, we conclude that such remand would not violate the principles of double jeopardy or due process. Kashi, supra, 180 N.J. at 48; see State v. Smith, 253 N.J. Super. 145, 148-49 (App. Div. 1992) (remanding a bail jumping conviction, N.J.S.A. 2C:29-7, to the Law Division for the trial judge to make further findings of fact and conclusions of law on the existing record as to whether defendant had fled to avoid apprehension for "a crime of third-degree or greater" necessary to sustain a conviction for third-degree bail jumping).
Defendant cites State v. Sparks, 261 N.J. Super. 458 (App. Div. 1993), in support of his argument that a remand would be improper. We find defendant's reliance on Sparks misplaced. In Sparks, defendant was charged with the disorderly persons offense of possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10a(4). Id. at 459. At the Municipal Court proceeding, the judge admitted evidence of a laboratory report that should have been excluded as untimely. Id. at 460-61. On de novo review, the Law Division correctly found that the evidence was inappropriately admitted, but improperly remanded the matter to the Municipal Court for a retrial. Ibid. Reversing and remanding for a judgment of acquittal, we explained that "[t]he hearing in the Law Division required exclusion of the lab certificate and consideration of the case solely on the remaining testimony." Id. at 461-62. Because "[e]xclusion of the laboratory certificate left the State without proof necessary to sustain a conviction[,]" we acquitted the defendant. Id. at 460.
This case is distinguishable from Sparks because, even if the Alcotest result is determined inadmissible, defendant can still be convicted based on police observations of his physical manifestations and the police officers' opinions as to defendant's intoxication. Kashi, supra, 360 N.J. Super. at 545. Moreover, we only acquitted the defendant in Sparks because of the fact that the conviction could not be sustained without the inadmissible evidence. Ibid. It follows that, if in Sparks the State had sufficient evidence other than the lab report to convict the defendant, we would have permitted the remand and retrial.
We are satisfied that a limited remand to the Law Division for the trial judge to make an expressed determination of defendant's guilt or innocence based on defendant's physical condition is not prohibited by the principles of double jeopardy, due process, or fundamental fairness. We are also satisfied that that remand should occur prior to our addressing defendant's arguments in Point II and III of his brief, with this court retaining jurisdiction in the matter. Accordingly, we remand the matter to the Law Division for the judge to make an expressed determination of defendant's guilt or innocence based on defendant's physical condition. No additional evidence shall be admitted on remand; rather, the judge's determination must be based on the existing record. The judge shall conclude the remand proceeding and advise this court of his findings and conclusions within thirty days of the date of this opinion.
Remanded to the Law Division for further proceedings consisting with this opinion; we retain jurisdiction.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966)
The Alcotest instrument used to test defendant was the Alcotest Model No. 7110 MKIII (the Alcotest). This Alcotest, when utilized with New Jersey Firmware version 3.11, was determined generally scientifically reliable, with certain modifications, to "permit its results to be admissible . . . to prove a per se violation of [N.J.S.A. 39:4-50(a)]." State v. Chun, 194 N.J. 54, 65, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed.2d 41 (2008). The present matter was tried in both the Municipal Court and the Law Division prior to the Supreme Court's decision.
"The Altotest uses both infrared (IR) technology and electrical chemical (EC) oxidation in a fuel cell to measure breath alcohol concentration. The devise therefore produces two test results for each breath sample, one derived from an IR reading and the other, by and large, from an EC reading." Id. at 78.
Truncating "involves simply reporting the first and second decimal places and dropping the third. . . . The effect of truncating, as opposed to rounding, is to under-report the concentration, to the benefit of the arrestee." Id. at 83.
As to defendant's inability to perform the field sobriety tests, the court only considered defendant's performance of the heel-to-toe walk test and the one-leg stand test. The court did not consider the officer's testimony as to defendant's inability to perform the HGN test in determining defendant's guilt; the court, however, did consider defendant's failure to follow Ahlert's instructions in attempting the HGN test in determining probable cause for the arrest. See State v. Doriguzzi, 334 N.J. Super. 530, 546 (App. Div. 2000) (declining to take judicial notice of the general acceptance of the reliability of the HGN test as evidence of a defendant's intoxication).
23
A-3558-06T4
February 26, 2009
Monday, April 13, 2009
04-07-09 State v. Lenin A-6499-03T4
04-07-09 State of New Jersey v. Isaac Lenin
A-6499-03T4
Sixth Amendment right to counsel did not apply to defendant
where, some four years after murder charges against him were
dismissed following two hung juries, State used confidential
informant to surreptiously record incriminating statements from
defendant pertaining to the murder incident, which statements
led to the filing of identical charges against defendant arising
from the same incident; there were no adversarial judicial
criminal proceedings pending against defendant when he made the
statements, and there was no evidence that the State obtained
dismissal of the murder charges in a deliberate attempt to
circumvent his constitutional rights.
A-6499-03T4
Sixth Amendment right to counsel did not apply to defendant
where, some four years after murder charges against him were
dismissed following two hung juries, State used confidential
informant to surreptiously record incriminating statements from
defendant pertaining to the murder incident, which statements
led to the filing of identical charges against defendant arising
from the same incident; there were no adversarial judicial
criminal proceedings pending against defendant when he made the
statements, and there was no evidence that the State obtained
dismissal of the murder charges in a deliberate attempt to
circumvent his constitutional rights.
04-06-09 State v. Duane Kelly A-3199-05T4
04-06-09 State v. Duane Kelly
A-3199-05T4
A jury convicted defendant of two counts of murder and two
counts of felony murder. The two victims were shot with a .38
caliber gun, which had not been recovered by the time of
defendant's trial. The jury also convicted defendant of first-
degree robbery and unlawful possession of a .40 caliber handgun;
it acquitted him of unlawful possession of a .38 caliber handgun
and possessing both the .38 caliber and the .40 caliber handguns
for an unlawful purpose.
The trial court sua sponte set aside those convictions and
ordered a new trial when a defense witness said she had
committed perjury at defendant's trial. Before the new trial
commenced, the .38 caliber gun was discovered. Defendant was
again convicted of two counts of murder, two counts of felony
murder, and first degree robbery.
We rejected defendant's argument that he could not be
convicted of these murders because the first jury found him not
guilty of possessing the murder weapon and of possessing it for
an unlawful purpose.
A-3199-05T4
A jury convicted defendant of two counts of murder and two
counts of felony murder. The two victims were shot with a .38
caliber gun, which had not been recovered by the time of
defendant's trial. The jury also convicted defendant of first-
degree robbery and unlawful possession of a .40 caliber handgun;
it acquitted him of unlawful possession of a .38 caliber handgun
and possessing both the .38 caliber and the .40 caliber handguns
for an unlawful purpose.
The trial court sua sponte set aside those convictions and
ordered a new trial when a defense witness said she had
committed perjury at defendant's trial. Before the new trial
commenced, the .38 caliber gun was discovered. Defendant was
again convicted of two counts of murder, two counts of felony
murder, and first degree robbery.
We rejected defendant's argument that he could not be
convicted of these murders because the first jury found him not
guilty of possessing the murder weapon and of possessing it for
an unlawful purpose.
04-03-09 State v. Broom-Smith A-3526-07T4
04-03-09 State of New Jersey v. Jason Broom-Smith
A-3526-07T4
The trial court properly denied defendant's motion for
discovery concerning the issuance of a warrant authorizing
police to search defendant's house for possible CDS. We
concluded that the warrant was not invalid by virtue of the fact
that it was issued by a municipal judge sitting in a different
municipality than the one in which defendant's house was
located. The assignment judge had issued an order authorizing
municipal judges within the county to substitute for each other
pursuant to Rule 1:12-3(a) and N.J.S.A. 2B:12-6. Further, for
purposes of a possible Franks hearing, the trial judge did not
abuse his discretion in denying defendant's application for
discovery, which the judge concluded was either a "fishing
expedition" or an attempt to learn the identity of a
confidential informant.
A-3526-07T4
The trial court properly denied defendant's motion for
discovery concerning the issuance of a warrant authorizing
police to search defendant's house for possible CDS. We
concluded that the warrant was not invalid by virtue of the fact
that it was issued by a municipal judge sitting in a different
municipality than the one in which defendant's house was
located. The assignment judge had issued an order authorizing
municipal judges within the county to substitute for each other
pursuant to Rule 1:12-3(a) and N.J.S.A. 2B:12-6. Further, for
purposes of a possible Franks hearing, the trial judge did not
abuse his discretion in denying defendant's application for
discovery, which the judge concluded was either a "fishing
expedition" or an attempt to learn the identity of a
confidential informant.
4-2-09 State v. Dionte Byrd (A-105-07) State v. Freddie Dean, Jr
4-2-09 State v. Dionte Byrd (A-105-07)
State v. Freddie Dean, Jr.
Defendants’ convictions are reversed and the matter is remanded
for a new trial because the trial court improperly introduced
the statement of a witness who allegedly was made unavailable by
intimidation, examined the witness outside the presence of
defendants and their counsel, took testimony without placing the
witness under oath, and denied defendants the opportunity to
present evidence to rebut the evidence of intimidation. The
Court determines also to seek the adoption of a forfeiture-by-
wrongdoing exception to the hearsay rule that will allow the
admission of a witness’s statement offered against a party who
has engaged in wrongdoing that was intended to, and did, procure
the unavailability of the witness.
State v. Freddie Dean, Jr.
Defendants’ convictions are reversed and the matter is remanded
for a new trial because the trial court improperly introduced
the statement of a witness who allegedly was made unavailable by
intimidation, examined the witness outside the presence of
defendants and their counsel, took testimony without placing the
witness under oath, and denied defendants the opportunity to
present evidence to rebut the evidence of intimidation. The
Court determines also to seek the adoption of a forfeiture-by-
wrongdoing exception to the hearsay rule that will allow the
admission of a witness’s statement offered against a party who
has engaged in wrongdoing that was intended to, and did, procure
the unavailability of the witness.
Thursday, March 26, 2009
03-20-09 Ortiz v. New Jersey Department of Corrections A-2394-07T1
03-20-09 Edwin Ortiz v. New Jersey Department of Corrections
A-2394-07T1
Edwin Ortiz is an inmate currently incarcerated at Northern
State Prison who has been identified as a member of a Security
Threat Group, the Latin Kings. See N.J.A.C. 10A:5-1.3; N.J.A.C.
10A:5-6.5. Denying membership, Ortiz invoked the Department of
Corrections' inmate-remedy system, N.J.A.C. 10A:1-4.1 to -4.9.
We discuss the Department's regulations governing STGs and the
inmate-remedy system. Because the Department did not respond in
accordance with its regulations, and Ortiz did not file an
administrative appeal, we dismiss the appeal for failure to
exhaust administrative remedies and direct the Department to
consider an administrative appeal.
A-2394-07T1
Edwin Ortiz is an inmate currently incarcerated at Northern
State Prison who has been identified as a member of a Security
Threat Group, the Latin Kings. See N.J.A.C. 10A:5-1.3; N.J.A.C.
10A:5-6.5. Denying membership, Ortiz invoked the Department of
Corrections' inmate-remedy system, N.J.A.C. 10A:1-4.1 to -4.9.
We discuss the Department's regulations governing STGs and the
inmate-remedy system. Because the Department did not respond in
accordance with its regulations, and Ortiz did not file an
administrative appeal, we dismiss the appeal for failure to
exhaust administrative remedies and direct the Department to
consider an administrative appeal.
Wednesday, March 11, 2009
3-10-09 State of New Jersey v. Vallejo (A-3-08)
3-10-09 State of New Jersey v. Diego Vallejo (A-3-08)
This brief trial was poisoned by the recurring admission of
evidence of other crimes and wrongdoings by defendant, Diego
Vallejo, and by reference to the domestic violence restraining
order against him. The trial judge’s curative instruction was
insufficient and, as a result, Vallejo was denied a fair trial.
This brief trial was poisoned by the recurring admission of
evidence of other crimes and wrongdoings by defendant, Diego
Vallejo, and by reference to the domestic violence restraining
order against him. The trial judge’s curative instruction was
insufficient and, as a result, Vallejo was denied a fair trial.
Sunday, March 08, 2009
RECENT CHANGES IN MUNICIPAL COURT LAW SEMINAR
RECENT CHANGES IN MUNICIPAL COURT LAW SEMINAR
Monday, May 04, 2009
5:30 PM to 9:30 PM
New Jersey Law Center, New Brunswick
Are you prepared to prosecute or defend your client in new Alcotest cases?
This informative guide to Municipal Court practice and procedure will familiarize you with the most recent developments affecting cases that are heard in Municipal Court.
An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.
Program Preview...
5:30 Criminal Case Law and Legislative Update - Kenneth A. Vercammen, Esq.
6:15 The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double
jeopardy issues - Denis F. Driscoll, Esq.
7:00 Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff - Hon. Joan Robinson Gross, PJMC
7:45 Refreshment break
7:55 Recent developments in traffic law, merged traffic tickets and more
8:40 DWI and Chun - John Menzel, Esq.
9:25 Ask the Experts
Plus..
The Municipal Court Practice Committee's Proposed Rule Amendments will be discussed.
Moderator:
KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
2005-2006 Municipal Court Attorney of the Year
Law Offices of Kenneth A. Vercammen (Edison)
Speakers include:
HON. JOAN ROBINSON GROSS, PJMC
(Union County)
DENIS F. DRISCOLL, ESQ.
Municipal Prosecutor (Denville, Montville & Victory Gardens)
Resch & Driscoll, PC (Hackensack)
JOHN MENZEL, ESQ.
Moore & Menzel (Point Pleasant)
Tuition fees Program S1507-10062 Reg. Fee Reg. Type
SPECIAL RECESSION BUSTER TUITION
Register by 3/31/09 $109.00 EB
General Tuition $149.00 REG
NJICLE SEASON TICKETS (STX) 1 Season Ticket(s) STX
MEMBERS, NJSBA CO-SPONSORING SECTION (COS*) $110.00 COS*
MEMBERS, NJSBA (NJB*) $119.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $110.00 YLD*
Recent admittees (past 2 years) (YL) $129.00 YL
Paralegals (PAR) $95.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JUD
DOOR REGISTRATIONS: $169
Advance registration closes at noon of the day preceding the program. After that time you may still register, space permitting, for the Door Registration Fee. PLEASE CALL FIRST to confirm the seminar schedule and space availability.
* NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order. If you place your order without providing your NJSBA Member#, you will be charged the regular price.
Presented in cooperation with the NJSBA Municipal Court Section and the NJSBA Young Lawyers’ Section
Additional details: http://www.njicle.com/seminar.aspx?sid=735
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
Monday, May 04, 2009
5:30 PM to 9:30 PM
New Jersey Law Center, New Brunswick
Are you prepared to prosecute or defend your client in new Alcotest cases?
This informative guide to Municipal Court practice and procedure will familiarize you with the most recent developments affecting cases that are heard in Municipal Court.
An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.
Program Preview...
5:30 Criminal Case Law and Legislative Update - Kenneth A. Vercammen, Esq.
6:15 The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double
jeopardy issues - Denis F. Driscoll, Esq.
7:00 Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff - Hon. Joan Robinson Gross, PJMC
7:45 Refreshment break
7:55 Recent developments in traffic law, merged traffic tickets and more
8:40 DWI and Chun - John Menzel, Esq.
9:25 Ask the Experts
Plus..
The Municipal Court Practice Committee's Proposed Rule Amendments will be discussed.
Moderator:
KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
2005-2006 Municipal Court Attorney of the Year
Law Offices of Kenneth A. Vercammen (Edison)
Speakers include:
HON. JOAN ROBINSON GROSS, PJMC
(Union County)
DENIS F. DRISCOLL, ESQ.
Municipal Prosecutor (Denville, Montville & Victory Gardens)
Resch & Driscoll, PC (Hackensack)
JOHN MENZEL, ESQ.
Moore & Menzel (Point Pleasant)
Tuition fees Program S1507-10062 Reg. Fee Reg. Type
SPECIAL RECESSION BUSTER TUITION
Register by 3/31/09 $109.00 EB
General Tuition $149.00 REG
NJICLE SEASON TICKETS (STX) 1 Season Ticket(s) STX
MEMBERS, NJSBA CO-SPONSORING SECTION (COS*) $110.00 COS*
MEMBERS, NJSBA (NJB*) $119.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $110.00 YLD*
Recent admittees (past 2 years) (YL) $129.00 YL
Paralegals (PAR) $95.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JUD
DOOR REGISTRATIONS: $169
Advance registration closes at noon of the day preceding the program. After that time you may still register, space permitting, for the Door Registration Fee. PLEASE CALL FIRST to confirm the seminar schedule and space availability.
* NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order. If you place your order without providing your NJSBA Member#, you will be charged the regular price.
Presented in cooperation with the NJSBA Municipal Court Section and the NJSBA Young Lawyers’ Section
Additional details: http://www.njicle.com/seminar.aspx?sid=735
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
Friday, March 06, 2009
03-04-09 State v. Chepilko A-5473-06T4/A-0084-07T4
03-04-09 State v. Sergei Chepilko
A-5473-06T4/A-0084-07T4
The taking of photographs of persons walking on the
Atlantic City Boardwalk and then attempting to sell the
photographs to the subjects does not constitute expressive
conduct entitled to First Amendment protection that insulates a
person engaged in this activity from prosecution for a violation
of municipal ordinances prohibiting the sale of merchandise on
the Boardwalk.
Assistant Editor - Guy Sirois, Esq
A-5473-06T4/A-0084-07T4
The taking of photographs of persons walking on the
Atlantic City Boardwalk and then attempting to sell the
photographs to the subjects does not constitute expressive
conduct entitled to First Amendment protection that insulates a
person engaged in this activity from prosecution for a violation
of municipal ordinances prohibiting the sale of merchandise on
the Boardwalk.
Assistant Editor - Guy Sirois, Esq
03-03-09 State v. Atkins A-4734-05T4
03-03-09 State of New Jersey v. Sidney Atkins
A-4734-05T4
Following the established rule in State v. Mingo, 77 N.J.
576, 586-87 (1978), we find reversible error in allowing the
prosecution to invade the privilege with regard to the defense-
retained consultant. Accordingly "the report and testimony of a
defense-retained expert consultant who will not testify as a
defense witness and whose report will not be utilized as
evidence are not available to the State." Ibid. The
justification that defendant waived the privilege by operation
of N.J.R.E. 607 in introducing the victim's recantation fails
because other evidence was available to the prosecution to rebut
the charge of recent fabrication, improper influence, or motive
which would not have been unduly prejudicial to defendant.
A-4734-05T4
Following the established rule in State v. Mingo, 77 N.J.
576, 586-87 (1978), we find reversible error in allowing the
prosecution to invade the privilege with regard to the defense-
retained consultant. Accordingly "the report and testimony of a
defense-retained expert consultant who will not testify as a
defense witness and whose report will not be utilized as
evidence are not available to the State." Ibid. The
justification that defendant waived the privilege by operation
of N.J.R.E. 607 in introducing the victim's recantation fails
because other evidence was available to the prosecution to rebut
the charge of recent fabrication, improper influence, or motive
which would not have been unduly prejudicial to defendant.
Thursday, March 05, 2009
2-24-09 State v. Grenci, Jr. (A-104-07)
2-24-09 State v. Angelo Grenci, Jr. (A-104-07)
Defendant’s trial in absentia on the superseding indictment did
not comply with Rule 3:16(b). Because defendant was never
arraigned on the superseding indictment and never
waived – in writing or orally on the record – his right to be
present at trial on that indictment, the trial should not have
proceeded in his absence. Therefore, no conviction arising from
any of the additional charges contained in the
superseding indictment can stand. In addition, the
trial court’s instructions to the jury directed a verdict on an
element of the burglary offense and thereby improperly relieved
the State of its constitutional burden of proving guilt beyond a
reasonable doubt.
Defendant’s trial in absentia on the superseding indictment did
not comply with Rule 3:16(b). Because defendant was never
arraigned on the superseding indictment and never
waived – in writing or orally on the record – his right to be
present at trial on that indictment, the trial should not have
proceeded in his absence. Therefore, no conviction arising from
any of the additional charges contained in the
superseding indictment can stand. In addition, the
trial court’s instructions to the jury directed a verdict on an
element of the burglary offense and thereby improperly relieved
the State of its constitutional burden of proving guilt beyond a
reasonable doubt.
2-25-09 State v. Pena-Flores, et al. (A-129-06) State v. Fuller (A-15-07)
2-25-09 State v. Juan Pena-Flores, et al. (A-129-06)
State v. Charles Fuller (A-15-07)
The Supreme Court affirms its longstanding precedent that
permits an automobile search without a warrant only in cases in
which the police have both probable cause to believe that the
vehicle contains evidence and exigent circumstances that would
justify dispensing with the warrant requirement. Whether
exigent circumstances exist is to be decided on a case-by-case
basis with the focus on police safety and the preservation of
evidence. The Court also determines that a warrant obtained by
telephonic or electronic means is the equivalent of an in-perwarrant and does not require proof of exigent circumstances.
State v. Charles Fuller (A-15-07)
The Supreme Court affirms its longstanding precedent that
permits an automobile search without a warrant only in cases in
which the police have both probable cause to believe that the
vehicle contains evidence and exigent circumstances that would
justify dispensing with the warrant requirement. Whether
exigent circumstances exist is to be decided on a case-by-case
basis with the focus on police safety and the preservation of
evidence. The Court also determines that a warrant obtained by
telephonic or electronic means is the equivalent of an in-perwarrant and does not require proof of exigent circumstances.
State of New Jersey V. A.O.
State of New Jersey V. A.O.
(A-107-07)
Decided March 5, 2009
Polygraph evidence that is based on a stipulation entered into
without counsel is inadmissible. A defendant may impeach the
credibility of a victim-witness about false allegations made
after the underlying allegations were made against the
defendant.
(A-107-07)
Decided March 5, 2009
Polygraph evidence that is based on a stipulation entered into
without counsel is inadmissible. A defendant may impeach the
credibility of a victim-witness about false allegations made
after the underlying allegations were made against the
defendant.
Wednesday, February 25, 2009
State v McNeil
1-14-09 State v. Anthony McNeil a/k/a Minister Mahdian Ali
A-2255-06T1
A defendant competent to stand trial under N.J.S.A. 2C:4-4
may not be competent to waive his or her right to counsel and to
represent himself pro se.
A-2255-06T1
A defendant competent to stand trial under N.J.S.A. 2C:4-4
may not be competent to waive his or her right to counsel and to
represent himself pro se.
State v Thomson
2-02-09 State of New Jersey v. Robbie Thomson
A-2980-06T4
Even if the State elicits improper expert testimony by use
of a hypothetical question that tracks the language of the
statute a defendant has been charged with violating or seeks an
expert opinion that an offense was committed, a reversal of the
defendant's conviction is required only if that testimony was
sufficiently prejudicial to have the capacity to bring about an unjust result.
A-2980-06T4
Even if the State elicits improper expert testimony by use
of a hypothetical question that tracks the language of the
statute a defendant has been charged with violating or seeks an
expert opinion that an offense was committed, a reversal of the
defendant's conviction is required only if that testimony was
sufficiently prejudicial to have the capacity to bring about an unjust result.
State v Coven
2-11-09 State v. Lawrence S. Coven
A-5846-07T4
Misapplication of entrusted property, N.J.S.A. 2C:21-15, is
not a continuing course of conduct offense. The offense is
complete the moment the recipient clearly and objectively
misapplies the entrusted property, thus putting it at
substantial risk of loss or detriment of the owner or person for
whose benefit it was entrusted. The indictment, which was
returned more than five years after that date, was properly
dismissed for failure to comply with the statute of limitations.
A-5846-07T4
Misapplication of entrusted property, N.J.S.A. 2C:21-15, is
not a continuing course of conduct offense. The offense is
complete the moment the recipient clearly and objectively
misapplies the entrusted property, thus putting it at
substantial risk of loss or detriment of the owner or person for
whose benefit it was entrusted. The indictment, which was
returned more than five years after that date, was properly
dismissed for failure to comply with the statute of limitations.
Tuesday, February 17, 2009
State v. Popovich No sequestration of defense expert in DWI case
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY POPOVICH,
Defendant-Appellant.
____________________________________
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2862-07T4
APPROVED FOR PUBLICATION
February 17, 2009
Submitted December 2, 2008 - Decided
Before Judges Wefing, Parker and LeWinn.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Municipal
Appeal No. 08-01-12.
Stephen M. Pascarella, attorney for appellant.
Luis A. Valentin, Monmouth County Prosecutor,
attorney for respondent (Patricia B. Quelch,
Assistant Prosecutor, of counsel; Courtney Darsch,
Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
WEFING, P.J.A.D.
Following a trial de novo in the Law Division, defendant
was found guilty of driving while intoxicated, N.J.S.A. 39:4-50.
He appeals from that conviction. After reviewing the record in
light of the contentions advanced on appeal, we reverse.
APPELLATE DIVISION
February 17, 2009
A-2862-07T4
2
Defendant was stopped while driving on August 12, 2007, in
Lake Como. The facts surrounding that stop are not material to
this appeal. He agreed to take a breathalyzer test, and the
results showed a blood alcohol level of .13 and .14. Defendant
was arrested and charged with driving while intoxicated.
Defendant, together with his attorney, appeared on November
20 in the Lake Como Municipal Court to defend against the
charge. Defendant's attorney had retained the services of an
expert to assist him in the defense. Following argument, the
municipal court judge granted the request of the municipal
prosecutor for a sequestration order and directed that
defendant's expert was subject to that order. The municipal
court dismissed the objections of defendant's attorney that such
an order would hamper his ability to cross-examine the
prosecution's witnesses. The municipal court judge indicated
that defense counsel, if he felt the need to consult with his
expert before proceeding to cross-examination, could either take
accurate notes of the testimony or order a transcript of the
relevant testimony and then consult with his expert. The
municipal court judge relied upon State v. Lanzel, 253 N.J.
Super. 168 (Law Div. 1991), which held that expert witnesses are
as subject to sequestration as lay witnesses.
A-2862-07T4
3
Faced with that ruling, defendant entered a conditional
plea of guilty, waiving any jurisdictional defects and any
question of jeopardy. Defendant agreed upon the record that if
the sequestration order were reversed in the Law Division, the
matter would be remanded to the municipal court for trial, and
the prosecution would be free to seek to establish either a per
se violation through the Breathalyzer readings or a violation
based upon the arresting officer's observations of defendant.
All parties agreed that the purpose of proceeding in this
fashion was to permit defendant to appeal the sequestration
order to the Law Division.
The Law Division judge, after argument, found that the
municipal court judge had not abused his discretion in excluding
defendant's expert, although he noted that he would have
exercised that discretion differently. He entered an order
finding defendant guilty of violating N.J.S.A. 39:4-50.
Defendant now appeals to this court, arguing that it was error
to order the sequestration of his expert. We are compelled to
agree.
N.J.R.E. 615 provides simply that "[a]t the request of a
party or on the court's own motion, the court may, in accordance
with law, enter an order sequestering witnesses." Whether to
order sequestration generally rests within the sound discretion
A-2862-07T4
4
of the trial court. State v. Miller, 299 N.J. Super. 387, 399
(App. Div.), certif. denied, 151 N.J. 464 (1997).
That discretion, however, must be exercised in light of the
underlying policy of sequestering witnesses during a proceeding.
"The reason for sequestration is to prevent prospective
witnesses from hearing what the other witnesses detail in their
evidence, for the less a witness hears of another's testimony
the more likely is he to declare his own knowledge simply and
unbiased." Ibid. (quoting State v. DiModica, 40 N.J. 404, 413
(1963)).
Defendant's expert, however, was not being called to
testify with respect to his knowledge of the underlying facts of
this incident for, quite simply, he had no knowledge of those
underlying facts. Rather, he was being called to offer an
expert opinion on the validity and reliability of the blood
alcohol readings that were obtained through the Breathalyzer
testing. We note that no question was raised with respect to
the qualifications of defendant's expert; both the municipal
court judge and the Law Division judge were familiar with the
individual and recognized him as an expert.
To sustain a finding of driving while intoxicated, there
must be proof of the "proper administration" of the test before
the results can be admitted into evidence and relied upon.
A-2862-07T4
5
State v. Maure, 240 N.J. Super. 269, 279 (App. Div. 1990),
aff'd, 123 N.J. 457 (1991) (citation omitted). "This includes
full proof that the equipment was in proper order, the operator
qualified and the test given correctly." Ibid. (citation
omitted).
In our judgment, State v. Lanzel, supra, the case upon
which the municipal court judge and the Law Division judge both
relied, is distinguishable from the present matter. The issue
in that case arose in the context of a pre-trial hearing at
which both the State and the defendant presented expert
psychiatric testimony. A sequestration order had been entered,
and the assistant prosecutor sought leave to have her expert
remain in the courtroom while defendant's expert testified; she
noted that the State had not received the updated reports from
defendant's expert. 253 N.J. Super. at 169. Further, she
argued that the testimony of her expert would not be influenced
by his having heard the testimony of defendant's expert "because
the proposed testimony of each expert is contradictory to the
other." Ibid. The trial court rejected these arguments,
concluding that to exempt the expert from sequestration "would
contravene the purpose of sequestration, which is to secure the
opinion uninfluenced by the evidence of another expert." Id. at
172.
A-2862-07T4
6
Here, we are not confronted with a case in which each side
has an expert witness, each holding opinions differing from the
other. Rather, defendant seeks to present an expert who will
offer an opinion on the sufficiency and reliability of the
testing methods employed by the police. The most reliable way
to secure that opinion would be to permit the proposed expert to
hear the testimony by which the State seeks to secure the
admission of those test results.
Further, we are of the view that to interpret N.J.R.E. 615
to authorize the routine sequestration of expert witnesses in a
matter such as this is contrary to the terms of N.J.R.E. 703,
which provides that an expert may base his opinion upon "facts
or data . . . perceived by or made known to the expert at or
before the hearing." By its use of the preposition "at," the
rule clearly envisions an expert observing trial proceedings and
then commenting upon what he has heard.
The order under review is reversed, and the matter is
remanded to the trial court for further proceedings.
Plaintiff-Respondent,
v.
TIMOTHY POPOVICH,
Defendant-Appellant.
____________________________________
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2862-07T4
APPROVED FOR PUBLICATION
February 17, 2009
Submitted December 2, 2008 - Decided
Before Judges Wefing, Parker and LeWinn.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Municipal
Appeal No. 08-01-12.
Stephen M. Pascarella, attorney for appellant.
Luis A. Valentin, Monmouth County Prosecutor,
attorney for respondent (Patricia B. Quelch,
Assistant Prosecutor, of counsel; Courtney Darsch,
Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
WEFING, P.J.A.D.
Following a trial de novo in the Law Division, defendant
was found guilty of driving while intoxicated, N.J.S.A. 39:4-50.
He appeals from that conviction. After reviewing the record in
light of the contentions advanced on appeal, we reverse.
APPELLATE DIVISION
February 17, 2009
A-2862-07T4
2
Defendant was stopped while driving on August 12, 2007, in
Lake Como. The facts surrounding that stop are not material to
this appeal. He agreed to take a breathalyzer test, and the
results showed a blood alcohol level of .13 and .14. Defendant
was arrested and charged with driving while intoxicated.
Defendant, together with his attorney, appeared on November
20 in the Lake Como Municipal Court to defend against the
charge. Defendant's attorney had retained the services of an
expert to assist him in the defense. Following argument, the
municipal court judge granted the request of the municipal
prosecutor for a sequestration order and directed that
defendant's expert was subject to that order. The municipal
court dismissed the objections of defendant's attorney that such
an order would hamper his ability to cross-examine the
prosecution's witnesses. The municipal court judge indicated
that defense counsel, if he felt the need to consult with his
expert before proceeding to cross-examination, could either take
accurate notes of the testimony or order a transcript of the
relevant testimony and then consult with his expert. The
municipal court judge relied upon State v. Lanzel, 253 N.J.
Super. 168 (Law Div. 1991), which held that expert witnesses are
as subject to sequestration as lay witnesses.
A-2862-07T4
3
Faced with that ruling, defendant entered a conditional
plea of guilty, waiving any jurisdictional defects and any
question of jeopardy. Defendant agreed upon the record that if
the sequestration order were reversed in the Law Division, the
matter would be remanded to the municipal court for trial, and
the prosecution would be free to seek to establish either a per
se violation through the Breathalyzer readings or a violation
based upon the arresting officer's observations of defendant.
All parties agreed that the purpose of proceeding in this
fashion was to permit defendant to appeal the sequestration
order to the Law Division.
The Law Division judge, after argument, found that the
municipal court judge had not abused his discretion in excluding
defendant's expert, although he noted that he would have
exercised that discretion differently. He entered an order
finding defendant guilty of violating N.J.S.A. 39:4-50.
Defendant now appeals to this court, arguing that it was error
to order the sequestration of his expert. We are compelled to
agree.
N.J.R.E. 615 provides simply that "[a]t the request of a
party or on the court's own motion, the court may, in accordance
with law, enter an order sequestering witnesses." Whether to
order sequestration generally rests within the sound discretion
A-2862-07T4
4
of the trial court. State v. Miller, 299 N.J. Super. 387, 399
(App. Div.), certif. denied, 151 N.J. 464 (1997).
That discretion, however, must be exercised in light of the
underlying policy of sequestering witnesses during a proceeding.
"The reason for sequestration is to prevent prospective
witnesses from hearing what the other witnesses detail in their
evidence, for the less a witness hears of another's testimony
the more likely is he to declare his own knowledge simply and
unbiased." Ibid. (quoting State v. DiModica, 40 N.J. 404, 413
(1963)).
Defendant's expert, however, was not being called to
testify with respect to his knowledge of the underlying facts of
this incident for, quite simply, he had no knowledge of those
underlying facts. Rather, he was being called to offer an
expert opinion on the validity and reliability of the blood
alcohol readings that were obtained through the Breathalyzer
testing. We note that no question was raised with respect to
the qualifications of defendant's expert; both the municipal
court judge and the Law Division judge were familiar with the
individual and recognized him as an expert.
To sustain a finding of driving while intoxicated, there
must be proof of the "proper administration" of the test before
the results can be admitted into evidence and relied upon.
A-2862-07T4
5
State v. Maure, 240 N.J. Super. 269, 279 (App. Div. 1990),
aff'd, 123 N.J. 457 (1991) (citation omitted). "This includes
full proof that the equipment was in proper order, the operator
qualified and the test given correctly." Ibid. (citation
omitted).
In our judgment, State v. Lanzel, supra, the case upon
which the municipal court judge and the Law Division judge both
relied, is distinguishable from the present matter. The issue
in that case arose in the context of a pre-trial hearing at
which both the State and the defendant presented expert
psychiatric testimony. A sequestration order had been entered,
and the assistant prosecutor sought leave to have her expert
remain in the courtroom while defendant's expert testified; she
noted that the State had not received the updated reports from
defendant's expert. 253 N.J. Super. at 169. Further, she
argued that the testimony of her expert would not be influenced
by his having heard the testimony of defendant's expert "because
the proposed testimony of each expert is contradictory to the
other." Ibid. The trial court rejected these arguments,
concluding that to exempt the expert from sequestration "would
contravene the purpose of sequestration, which is to secure the
opinion uninfluenced by the evidence of another expert." Id. at
172.
A-2862-07T4
6
Here, we are not confronted with a case in which each side
has an expert witness, each holding opinions differing from the
other. Rather, defendant seeks to present an expert who will
offer an opinion on the sufficiency and reliability of the
testing methods employed by the police. The most reliable way
to secure that opinion would be to permit the proposed expert to
hear the testimony by which the State seeks to secure the
admission of those test results.
Further, we are of the view that to interpret N.J.R.E. 615
to authorize the routine sequestration of expert witnesses in a
matter such as this is contrary to the terms of N.J.R.E. 703,
which provides that an expert may base his opinion upon "facts
or data . . . perceived by or made known to the expert at or
before the hearing." By its use of the preposition "at," the
rule clearly envisions an expert observing trial proceedings and
then commenting upon what he has heard.
The order under review is reversed, and the matter is
remanded to the trial court for further proceedings.
Monday, February 16, 2009
State v Wang Prostitution conviction requires intent and evidence
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3072-07T43072-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
vs.
QINGPEI WANG,
Defendant-Appellant.
________________________________________________________
Argued December 17, 2008 - Decided
Before Judges Parrillo, Lihotz and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-111.
Gordon S. Graber argued the cause for appellant (Sullivan and Graber, attorneys; Mr. Graber and Chryzanta K. Hentisz, on the brief).
Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).
PER CURIAM
Defendant Qingpei Wang appeals from the Law Division's judgment of conviction following the de novo appeal from her conviction for prostitution, N.J.S.A. 2C:34-1(b)(1), in the Mountain Lakes municipal court. On appeal, defendant argues the following:
POINT I
THE ADMISSION OF TESTIMONY REGARDING SPECIFIC ACTS OF CONDUCT AND THE COURT'S RELIANCE ON THAT TESTIMONY TAINTED THE DEFENDANT'S TRIAL AND PRODUCED AN UNJUST RESULT.
A. THE PROSECUTOR IMPROPERLY QUESTIONED WITNESSES REGARDING PREJUDICIAL SPECIFIC INSTANCES OF CONDUCT IN ORDER TO ATTACK THEIR CREDIBILITY.
POINT II
EVIDENCE PRODUCED AT TRIAL DID NOT SUPPORT THE IDENTIFICATION OF THE DEFENDANT AS THE PERPETRATOR OF THE OFFENSE.
POINT III
THIS COURT SHOULD REVIEW THE FACTUAL DETERMINATIONS BELOW AND REVERSE THE DECISION OR REMAND TO ANOTHER MUNICIPAL COURT.
POINT IV
DEFENDANT CANNOT BE CONVICTED OF AN OFFENSE WHERE THE STATE DID NOT PROVE THE ELEMENTS OF THE OFFENSE CHARGED.
We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter for a new trial.
I.
We recap the testimony adduced at defendant's municipal court trial. The State's sole witness was Detective Shawn Bennett of the Mountain Lakes Police Department. On July 11, 2006, at about four o'clock in the afternoon, responding to complaints of prostitution, Bennett arrived at the premises of the Asian Therapy Center, a massage parlor on Route 46 West. He was in plainclothes and rang the doorbell to Suite B-10. An Asian woman, who Bennett subsequently identified in court as defendant, answered the door. Bennett asked for a massage and defendant escorted him down the hallway into a room, telling him to undress. When defendant saw Bennett still had his underwear on, she told him to take them off.
Bennett lay down on the massage table on his stomach and defendant proceeded to massage his back, shoulders and legs; he turned over, and defendant then massaged his head, chest and legs. Bennett claimed defendant "continuously . . . reached under" a white bath towel placed across the genital area, "coming in contact with [his] genitals." Defendant asked Bennett if it was "okay" to touch him there and, when Bennett gave a hand gesture showing consent, defendant grabbed his penis "underneath the towel and began to manipulate it." When defendant applied baby oil to her hands and continued to manipulate Bennett's penis, he stopped her by saying "no, thank you, it's okay." Defendant then covered up Bennett with the towel and told him that he was done. She told him that the price was sixty dollars, and Bennett gave her that, plus a twenty dollar gratuity, which the detective testified was "normal at . . . a legitimate massage parlor." Bennett left without arresting defendant or asking her name.
On August 3, Bennett returned to the Therapy Center to serve defendant with "a warrant." He still did not know her name. When Bennett saw defendant was not there, he spoke to two other Asian women, both of whom "spoke very little English." Bennett obtained a Nevada driver's license with defendant's photo on it, made a copy of the license, and "issue[d] a warrant" in defendant's name which he served on August 31 "via mail."
On cross-examination, Bennett acknowledged going to the premises again on August 4 in an attempt to serve "zoning complaints" on Oliver Chou, the "owner of the suite." A woman answered, but Bennett claimed he did not get a good look at her because she only partially opened the door. The woman took the complaints and signed the name "Jennifer" on the copy she returned to Bennett. Subsequently, Bennett met Chou, and asked him who worked there. Chou supplied defendant's name and gave Bennett defendant's Nevada driver's license.
Defendant asserted alibi as her defense to the charge. Her first witness was Chingwa Wong, a woman who was hired by defendant as a cashier and manager of the Therapy Center. Wong claimed that defendant, who went by the English name "Jennifer," did not work on the premises on July 11, and that two other women, Shasha and Wendy, were working at four in the afternoon on that day.
Li Wang, a friend of defendant, testified that on July 11, defendant came to her house at about one p.m. with items she wanted Li to deliver to her son in China. Li, who came from the same hometown in China as defendant, was scheduled to return to China on July 19. After dropping off the items, Li claimed that she and defendant went to the Phillipsburg Mall together to buy more goods for defendant's son, and stayed approximately two to three hours at the mall, ultimately having dinner together at a Kentucky Fried Chicken store. Li also confirmed that defendant used the English name "Jennifer."
Defendant testified "Shasha and Wendy w[ere] working days" at the Therapy Center around July 11. Defendant acknowledged that she was the manager and that a one-hour massage cost $60. She also testified that "sometimes the girls want to make more money," and that she did not "know what they do in the room." Defendant claimed that it was against the Therapy Center's "policy" for the employees to do anything "illegal," and that any employee violating the policy would be fired immediately. A copy of the written policy was moved into evidence. Defendant corroborated Li's account regarding their whereabouts on the day in question. Defendant claimed that it was she who answered the door and accepted the zoning violations from Bennett on August 4.
On cross-examination, and over objection, defendant was questioned about her possession of a Nevada driver's license, a "problem with [her] New Jersey driver's license[,]" and some discrepancy regarding her date of birth. The following exchange took place:
Prosecutor: Do you remember surrendering your license — your New Jersey license in Nevada?
Defense counsel: Objection, Your Honor. It's irrelevant to the case . . . .
Judge: All right. For the record, you're objecting. For the record, I'm allow[ing] it. So you don't have to make any more objections --
. . . .
-- on this area. This is relevant to credibility. It's as simple as that.
. . . .
If someone works in New Jersey and lives in East Brunswick as your client testified . . . there's probably some degree of concern about why we have a Nevada license.
. . . .
I'm not prejudging anything, but let's say [the prosecutor] proves that she lied to get a Nevada license. Well, then maybe she lied about where she was on July 11th. I mean, that — that's maybe hard to connect those two concepts, but it's a theory that maybe [the prosecutor] is trying to pursue.
Defendant was also questioned about the Therapy Center's practices with regard to tax forms and recordkeeping, including whether defendant had the social security numbers and addresses for all of her employees and whether she had her employees fill out W-2 and 1099 forms. The prosecutor asked defendant if she had "consider[ed] the fact that [she] had to pay unemployment taxes for these people?" Once again, defense counsel objected on the basis of relevancy, but was overruled by the judge who found the questioning "goes to credibility."
Oliver Chou was defendant's final witness. He identified the lease between himself and defendant for the use of the premises, as well as a copy of defendant's driver's license which he acknowledged giving to Bennett.
The municipal court judge found Bennett to be a credible witness and defendant and her witnesses to be incredible. In recounting defendant's testimony, the judge noted:
I find her . . . inability to explain things to be rather incredible. I do find that she initially did not want to answer questions that she felt might implicate her. She's a New Jersey resident/she's not a New Jersey resident. She has a Nevada license.
The judge also referenced defendant's lack of "record keeping" at the business, finding "no W-2s or 1099s" existed for the Therapy Center's employees. Parenthetically referring to N.J.S.A. 2C:34-1a(3), the definition of a "house of prostitution," the judge took note:
There's also a section by the way that implicates the owner or the manager of a massage therapy place if there is sexual activity going on and they're paid. Then that's certainly a benefit to the owner or the manager, and the owner or the manager can be charged. And, of course, [defendant] testified that she's the owner and the manager of that business.
The judge found defendant violated N.J.S.A. 2C:34-1(b)(1), fined her $1,000, and assessed the appropriate statutory penalties.
On appeal to the Law Division, defendant argued 1) that the State failed to prove beyond a reasonable doubt that defendant was the individual who masturbated Bennett on the day in question; 2) that the State failed to prove all the elements of the offense because Bennett paid the "normal fee" for a massage, and no greater amount for the sexual activity; and 3) that the municipal court judge's credibility findings were the product of "being angry, frustrated, confused and dismayed at defense counsel's behavior[.]"
The Law Division judge rejected the arguments and found defendant guilty of the charge of prostitution. He reduced the fine, however, to $500, and this appeal ensued.
II.
In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2009). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). However, if evidence was improperly admitted before the municipal court, the Law Division judge has an obligation to strike the evidence and consider whether the State has carried its burden of proof or not. See State v. Sparks, 261 N.J. Super. 458, 461 (App. Div. 1993); See also accord State v. Musgrave, 171 N.J. Super. 477, 479 (App. Div. 1979).
We find merit in the first point defendant raises and conclude that reversal of her conviction is warranted on that ground. Since the matter may be tried again, we address the remaining points she raises for the purpose of future guidance.
A.
In this case, the Law Division judge gave "due although not necessarily controlling, regard" to the municipal court judge's opportunity to observe the witnesses. Johnson, supra, 42 N.J. at 157. He specifically found the testimony presented by the State to be credible, and the defense witnesses to lack credibility, citing at length the municipal court judge's findings regarding defendant's testimony, including the cross-examination as to her Nevada driver's license and the lack of payroll records and tax forms for employees of the Therapy Center.
While the Law Division judge applied the appropriate standard of review, we conclude the cross-examination of defendant regarding her Nevada driver's license and the lack of proper record keeping as to the Therapy Center was improper because the evidence lacked any relevancy to the charge at hand, and because its use to attack defendant's credibility ran afoul of N.J.R.E. 607, 608, and 404. Because this evidence was improperly admitted, was relied upon by both judges, and was integral to their respective credibility determinations, reversal of defendant's conviction is required.
It is axiomatic that the evidence was not intrinsically relevant to the actual charge before the municipal court because it lacked any "tendency in reason to prove or disprove" the only "fact of consequence to the determination" of the charge, i.e. was defendant the person who committed prostitution by masturbating Bennett? N.J.R.E. 401. It was only admissible if permitted by N.J.R.E. 607, which allows the admission of extrinsic evidence "relevant to the issue of credibility . . . for the purpose of impairing or supporting the credibility of a witness." Introduction of evidence under Rule 607 is expressly limited by N.J.R.E. 405 and N.J.R.E. 608.
Rule 608(a) permits "[t]he credibility of a witness [to] be attacked . . . by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness . . . ." Furthermore, "a trait of character cannot be proved by specific instances of conduct," except those resulting in a criminal conviction. N.J.R.E. 608(a); see N.J.R.E. 609 (permitting impeachment of credibility by prior criminal conviction); see also N.J.R.E. 405 (limiting proof of character to "reputation . . . opinion, or evidence of conviction of a crime").
The interplay of these rules was best summarized by the Supreme Court in State v. Guenther, 181 N.J. 129 (2004), where it noted,
[O]ur rules permit evidence in the form of opinion, reputation, or a prior criminal conviction to attack a witness's credibility by establishing the witness's character for untruthfulness. A party may introduce such evidence for the purpose of asking a jury to draw an inference that a witness with a reputation for untruthfulness is capable of lying on the stand. However, evidence of specific instances of conduct--other than a prior conviction--to prove the character trait of untruthfulness is prohibited.
[Id. at 140 (internal citations omitted).]
The Guenther court cited with approval, State v. De Paola, 5 N.J. 1 (1950), as illustrative of this point. Ibid.
In De Paola, a murder case, the Court concluded that it was reversible error to permit cross-examination of the defendant regarding false answers he provided in liquor license applications. Id. at 9-10. The Court reasoned, "[t]he acts . . . admittedly had nothing whatsoever to do with the charge upon which the defendant was being tried[,] [] were unrelated to it in point of time and fact[,] [and] [t]he defendant had not been convicted for perjury or false swearing by reason of his misconduct in this respect." Id. at 10.
It would appear that the municipal court judge, in overruling defendant's objection, accepted that the prosecutor's cross-examination might yield evidence of defendant's character trait for untruthfulness, noting that if she "lied to get a Nevada license . . . then maybe she lied about where she was on July 11th[.]" However, it has long been held that the defendant's "mere taking of the stand . . . does not provide justification for the State's going forth with 'bad character' evidence. "Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 404 (2008)(citing State v. Linder, 170 N.J. Super. 548, 557-558 (App. Div. 1979)(holding, "[w]here . . . a defendant testifies on his own behalf, he does not thereby put into issue his general character or propensities")).
As in De Paola, whether defendant lied to obtain a Nevada driver's license, or whether she appropriately maintained necessary tax and payroll information on her employees had nothing to do with the charge of prostitution. Nor had defendant been convicted of any offense regarding this conduct. Thus, under Rule 608, questioning her about it was impermissible.
Moreover, even if the evidence was not seen as an attack upon defendant's character per se, it was inadmissible under Rule 607. "Although extrinsic evidence may be admitted to impeach a witness . . . its probative value as impeachment evidence must be assessed independently of its potential value as substantive evidence." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494 (1999); see also Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2008)(noting "[t]he only evidence that may be introduced is that which contradicts or calls into question the witness's version of the facts; only that evidence is relevant"); and see State v. Hutchins, 241 N.J. Super. 353, 361 (App. Div. 1990)(noting "[i]rrelevant evidence which might improperly affect a witness' credibility may not be admitted into evidence"). Here, whether defendant lied to obtain a Nevada driver's license or whether she kept appropriate business records had nothing to do with whether she was, or was not, the woman who engaged in prostitution with Bennett.
Lastly, to the extent the prosecutor's cross-examination intimated that defendant had committed a separate crime or civil wrong, it was prohibited by N.J.R.E. 404(b)(barring evidence of "other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith"). While such evidence may be admissible to impeach a testifying defendant's credibility, State v. Lykes, 192 N.J. 519, 537 (2007), it must still be evaluated under the four-prong test enunciated in State v. Cofield, 127 N.J. 328, 338 (1992). Id. at 535. It is obvious to us that in this case, the evidence could not pass even the first prong of the Cofield analysis, i.e., "[t]he evidence of the other crime must be admissible as relevant to a material issue." Cofield, supra, 127 N.J. at 338. Defendant's possession of a Nevada's driver's license and her failure to keep payroll and tax records were not relevant to whether she committed prostitution.
We reject the State's arguments that defendant failed to raise the issue below, thus barring our consideration of it on appeal, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), or that she "opened the door" to the objectionable cross-examination. First, defendant clearly raised the issue at trial before the municipal court judge, and, to the extent her de novo appeal challenged the judge's credibility determinations, she adequately challenged the admission of the evidence below. Second, it was the prosecutor, not defendant, who introduced her license in evidence. She merely attempted to explain why it was a Nevada license, and, in our opinion, that did not "open the door" to the full frontal assault on her credibility. As to the lack of business and tax records, defendant did not raise the issue at all during her direct testimony, nor, in our opinion, did any of her answers permit the innuendo raised by the prosecutor's vigorous cross-examination thereafter.
When prejudice inures to a defendant based upon an erroneous evidence ruling, see State v. Benthall, 182 N.J. 373, 385 (2005), and that error is "clearly capable of producing an unjust result," Rule 2:10-2, reversal is required. In this case, both judges below relied extensively upon defendant's answers to cross-examination questions that were improper in deciding the critical credibility issue raised by the conflicting evidence. As a result, we reverse defendant's conviction and remand the matter for a new trial. Because the municipal court judge who originally heard the matter should not be placed in the position of having to judge defendant's credibility anew if she testifies again, we further order that the new trial, if one occurs, take place before a different judge.
B.
We address the other two points defendant raises for purposes of providing guidance in the event the case is re-tried. She contends that the State failed to adequately prove identification, and failed to prove all the necessary elements of prostitution, N.J.S.A. 2C:34-1b(1). We conclude both arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only these brief comments.
While the conduct of the investigation leading to defendant's identification and the issuance of a summons was unusual at the least, Bennett identified defendant in the courtroom as the person who engaged in prostitution on the day in question. Defendant's arguments in this regard all go to the credibility of Bennett in general, as well as the certainty of his identification in particular, but they do not form a basis for reversal. If Bennett's in-court identification of defendant as the woman who engaged in prostitution with him is believed beyond a reasonable doubt, then the State has carried its burden of proof. Defendant conceded as much at oral argument before us.
Defendant argues that the State failed to prove she engaged in sexual activity in exchange for something of economic value. She claims that because Bennett testified that he paid the standard fee for a massage, sixty dollars, a fact corroborated by defendant, plus a tip of twenty dollars, and paid nothing more for the sexual activity, the State's proofs were deficient. We find no merit to this contention.
N.J.S.A. 2C:34-1b(1) provides that "[a] person commits an offense if . . . the actor engages in prostitution[.]" "Prostitution" is defined as "sexual activity with another person in exchange for something of economic value, or the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value." N.J.S.A. 2C:34-1a(1). "Sexual activity" includes "masturbation" or the "touching of the genitals." N.J.S.A. 2C:34-1a(2). If Bennett's testimony is believed beyond a reasonable doubt, defendant engaged in sexual activity and received something of value in return. Whether she would have received more money had Bennett not told her to stop is irrelevant.
Reversed. The matter is remanded for a new trial in the municipal court before a different municipal court judge. We do not retain jurisdiction.
It is apparent that Bennett attempted to serve, and thereafter successfully served defendant by mail, with a "summons" complaint, not an arrest warrant. R. 7:2-1(b) and (c).
The Guenther court carved out a narrow exception to this prohibition, permitting "in limited circumstances and under very strict controls[,] a defendant [] the right to show that a victim-witness has made a prior false criminal accusation for the purpose of challenging that witness's credibility." Guenther, supra, 181 N.J. at 154. This led to the subsequent adoption of N.J.R.E. 608(b). Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 608 (2008).
Despite the municipal court judge's reference to "a section . . . that implicates the owner or the manager of a massage therapy place if there is sexual activity going on and they're paid[,]" the State did not contend that defendant owned or managed a "house of prostitution," N.J.S.A. 2C:34-1a(3), and was therefore guilty of "promoting prostitution," N.J.S.A. 2C:34-1b(2). Evidence of defendant's maintenance of personnel and tax records of her employees, or her failure to do so, might be relevant to such a charge.
(continued)
(continued)
18
A-3072-07T4
January 20, 2009
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3072-07T43072-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
vs.
QINGPEI WANG,
Defendant-Appellant.
________________________________________________________
Argued December 17, 2008 - Decided
Before Judges Parrillo, Lihotz and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-111.
Gordon S. Graber argued the cause for appellant (Sullivan and Graber, attorneys; Mr. Graber and Chryzanta K. Hentisz, on the brief).
Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).
PER CURIAM
Defendant Qingpei Wang appeals from the Law Division's judgment of conviction following the de novo appeal from her conviction for prostitution, N.J.S.A. 2C:34-1(b)(1), in the Mountain Lakes municipal court. On appeal, defendant argues the following:
POINT I
THE ADMISSION OF TESTIMONY REGARDING SPECIFIC ACTS OF CONDUCT AND THE COURT'S RELIANCE ON THAT TESTIMONY TAINTED THE DEFENDANT'S TRIAL AND PRODUCED AN UNJUST RESULT.
A. THE PROSECUTOR IMPROPERLY QUESTIONED WITNESSES REGARDING PREJUDICIAL SPECIFIC INSTANCES OF CONDUCT IN ORDER TO ATTACK THEIR CREDIBILITY.
POINT II
EVIDENCE PRODUCED AT TRIAL DID NOT SUPPORT THE IDENTIFICATION OF THE DEFENDANT AS THE PERPETRATOR OF THE OFFENSE.
POINT III
THIS COURT SHOULD REVIEW THE FACTUAL DETERMINATIONS BELOW AND REVERSE THE DECISION OR REMAND TO ANOTHER MUNICIPAL COURT.
POINT IV
DEFENDANT CANNOT BE CONVICTED OF AN OFFENSE WHERE THE STATE DID NOT PROVE THE ELEMENTS OF THE OFFENSE CHARGED.
We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter for a new trial.
I.
We recap the testimony adduced at defendant's municipal court trial. The State's sole witness was Detective Shawn Bennett of the Mountain Lakes Police Department. On July 11, 2006, at about four o'clock in the afternoon, responding to complaints of prostitution, Bennett arrived at the premises of the Asian Therapy Center, a massage parlor on Route 46 West. He was in plainclothes and rang the doorbell to Suite B-10. An Asian woman, who Bennett subsequently identified in court as defendant, answered the door. Bennett asked for a massage and defendant escorted him down the hallway into a room, telling him to undress. When defendant saw Bennett still had his underwear on, she told him to take them off.
Bennett lay down on the massage table on his stomach and defendant proceeded to massage his back, shoulders and legs; he turned over, and defendant then massaged his head, chest and legs. Bennett claimed defendant "continuously . . . reached under" a white bath towel placed across the genital area, "coming in contact with [his] genitals." Defendant asked Bennett if it was "okay" to touch him there and, when Bennett gave a hand gesture showing consent, defendant grabbed his penis "underneath the towel and began to manipulate it." When defendant applied baby oil to her hands and continued to manipulate Bennett's penis, he stopped her by saying "no, thank you, it's okay." Defendant then covered up Bennett with the towel and told him that he was done. She told him that the price was sixty dollars, and Bennett gave her that, plus a twenty dollar gratuity, which the detective testified was "normal at . . . a legitimate massage parlor." Bennett left without arresting defendant or asking her name.
On August 3, Bennett returned to the Therapy Center to serve defendant with "a warrant." He still did not know her name. When Bennett saw defendant was not there, he spoke to two other Asian women, both of whom "spoke very little English." Bennett obtained a Nevada driver's license with defendant's photo on it, made a copy of the license, and "issue[d] a warrant" in defendant's name which he served on August 31 "via mail."
On cross-examination, Bennett acknowledged going to the premises again on August 4 in an attempt to serve "zoning complaints" on Oliver Chou, the "owner of the suite." A woman answered, but Bennett claimed he did not get a good look at her because she only partially opened the door. The woman took the complaints and signed the name "Jennifer" on the copy she returned to Bennett. Subsequently, Bennett met Chou, and asked him who worked there. Chou supplied defendant's name and gave Bennett defendant's Nevada driver's license.
Defendant asserted alibi as her defense to the charge. Her first witness was Chingwa Wong, a woman who was hired by defendant as a cashier and manager of the Therapy Center. Wong claimed that defendant, who went by the English name "Jennifer," did not work on the premises on July 11, and that two other women, Shasha and Wendy, were working at four in the afternoon on that day.
Li Wang, a friend of defendant, testified that on July 11, defendant came to her house at about one p.m. with items she wanted Li to deliver to her son in China. Li, who came from the same hometown in China as defendant, was scheduled to return to China on July 19. After dropping off the items, Li claimed that she and defendant went to the Phillipsburg Mall together to buy more goods for defendant's son, and stayed approximately two to three hours at the mall, ultimately having dinner together at a Kentucky Fried Chicken store. Li also confirmed that defendant used the English name "Jennifer."
Defendant testified "Shasha and Wendy w[ere] working days" at the Therapy Center around July 11. Defendant acknowledged that she was the manager and that a one-hour massage cost $60. She also testified that "sometimes the girls want to make more money," and that she did not "know what they do in the room." Defendant claimed that it was against the Therapy Center's "policy" for the employees to do anything "illegal," and that any employee violating the policy would be fired immediately. A copy of the written policy was moved into evidence. Defendant corroborated Li's account regarding their whereabouts on the day in question. Defendant claimed that it was she who answered the door and accepted the zoning violations from Bennett on August 4.
On cross-examination, and over objection, defendant was questioned about her possession of a Nevada driver's license, a "problem with [her] New Jersey driver's license[,]" and some discrepancy regarding her date of birth. The following exchange took place:
Prosecutor: Do you remember surrendering your license — your New Jersey license in Nevada?
Defense counsel: Objection, Your Honor. It's irrelevant to the case . . . .
Judge: All right. For the record, you're objecting. For the record, I'm allow[ing] it. So you don't have to make any more objections --
. . . .
-- on this area. This is relevant to credibility. It's as simple as that.
. . . .
If someone works in New Jersey and lives in East Brunswick as your client testified . . . there's probably some degree of concern about why we have a Nevada license.
. . . .
I'm not prejudging anything, but let's say [the prosecutor] proves that she lied to get a Nevada license. Well, then maybe she lied about where she was on July 11th. I mean, that — that's maybe hard to connect those two concepts, but it's a theory that maybe [the prosecutor] is trying to pursue.
Defendant was also questioned about the Therapy Center's practices with regard to tax forms and recordkeeping, including whether defendant had the social security numbers and addresses for all of her employees and whether she had her employees fill out W-2 and 1099 forms. The prosecutor asked defendant if she had "consider[ed] the fact that [she] had to pay unemployment taxes for these people?" Once again, defense counsel objected on the basis of relevancy, but was overruled by the judge who found the questioning "goes to credibility."
Oliver Chou was defendant's final witness. He identified the lease between himself and defendant for the use of the premises, as well as a copy of defendant's driver's license which he acknowledged giving to Bennett.
The municipal court judge found Bennett to be a credible witness and defendant and her witnesses to be incredible. In recounting defendant's testimony, the judge noted:
I find her . . . inability to explain things to be rather incredible. I do find that she initially did not want to answer questions that she felt might implicate her. She's a New Jersey resident/she's not a New Jersey resident. She has a Nevada license.
The judge also referenced defendant's lack of "record keeping" at the business, finding "no W-2s or 1099s" existed for the Therapy Center's employees. Parenthetically referring to N.J.S.A. 2C:34-1a(3), the definition of a "house of prostitution," the judge took note:
There's also a section by the way that implicates the owner or the manager of a massage therapy place if there is sexual activity going on and they're paid. Then that's certainly a benefit to the owner or the manager, and the owner or the manager can be charged. And, of course, [defendant] testified that she's the owner and the manager of that business.
The judge found defendant violated N.J.S.A. 2C:34-1(b)(1), fined her $1,000, and assessed the appropriate statutory penalties.
On appeal to the Law Division, defendant argued 1) that the State failed to prove beyond a reasonable doubt that defendant was the individual who masturbated Bennett on the day in question; 2) that the State failed to prove all the elements of the offense because Bennett paid the "normal fee" for a massage, and no greater amount for the sexual activity; and 3) that the municipal court judge's credibility findings were the product of "being angry, frustrated, confused and dismayed at defense counsel's behavior[.]"
The Law Division judge rejected the arguments and found defendant guilty of the charge of prostitution. He reduced the fine, however, to $500, and this appeal ensued.
II.
In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2009). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). However, if evidence was improperly admitted before the municipal court, the Law Division judge has an obligation to strike the evidence and consider whether the State has carried its burden of proof or not. See State v. Sparks, 261 N.J. Super. 458, 461 (App. Div. 1993); See also accord State v. Musgrave, 171 N.J. Super. 477, 479 (App. Div. 1979).
We find merit in the first point defendant raises and conclude that reversal of her conviction is warranted on that ground. Since the matter may be tried again, we address the remaining points she raises for the purpose of future guidance.
A.
In this case, the Law Division judge gave "due although not necessarily controlling, regard" to the municipal court judge's opportunity to observe the witnesses. Johnson, supra, 42 N.J. at 157. He specifically found the testimony presented by the State to be credible, and the defense witnesses to lack credibility, citing at length the municipal court judge's findings regarding defendant's testimony, including the cross-examination as to her Nevada driver's license and the lack of payroll records and tax forms for employees of the Therapy Center.
While the Law Division judge applied the appropriate standard of review, we conclude the cross-examination of defendant regarding her Nevada driver's license and the lack of proper record keeping as to the Therapy Center was improper because the evidence lacked any relevancy to the charge at hand, and because its use to attack defendant's credibility ran afoul of N.J.R.E. 607, 608, and 404. Because this evidence was improperly admitted, was relied upon by both judges, and was integral to their respective credibility determinations, reversal of defendant's conviction is required.
It is axiomatic that the evidence was not intrinsically relevant to the actual charge before the municipal court because it lacked any "tendency in reason to prove or disprove" the only "fact of consequence to the determination" of the charge, i.e. was defendant the person who committed prostitution by masturbating Bennett? N.J.R.E. 401. It was only admissible if permitted by N.J.R.E. 607, which allows the admission of extrinsic evidence "relevant to the issue of credibility . . . for the purpose of impairing or supporting the credibility of a witness." Introduction of evidence under Rule 607 is expressly limited by N.J.R.E. 405 and N.J.R.E. 608.
Rule 608(a) permits "[t]he credibility of a witness [to] be attacked . . . by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness . . . ." Furthermore, "a trait of character cannot be proved by specific instances of conduct," except those resulting in a criminal conviction. N.J.R.E. 608(a); see N.J.R.E. 609 (permitting impeachment of credibility by prior criminal conviction); see also N.J.R.E. 405 (limiting proof of character to "reputation . . . opinion, or evidence of conviction of a crime").
The interplay of these rules was best summarized by the Supreme Court in State v. Guenther, 181 N.J. 129 (2004), where it noted,
[O]ur rules permit evidence in the form of opinion, reputation, or a prior criminal conviction to attack a witness's credibility by establishing the witness's character for untruthfulness. A party may introduce such evidence for the purpose of asking a jury to draw an inference that a witness with a reputation for untruthfulness is capable of lying on the stand. However, evidence of specific instances of conduct--other than a prior conviction--to prove the character trait of untruthfulness is prohibited.
[Id. at 140 (internal citations omitted).]
The Guenther court cited with approval, State v. De Paola, 5 N.J. 1 (1950), as illustrative of this point. Ibid.
In De Paola, a murder case, the Court concluded that it was reversible error to permit cross-examination of the defendant regarding false answers he provided in liquor license applications. Id. at 9-10. The Court reasoned, "[t]he acts . . . admittedly had nothing whatsoever to do with the charge upon which the defendant was being tried[,] [] were unrelated to it in point of time and fact[,] [and] [t]he defendant had not been convicted for perjury or false swearing by reason of his misconduct in this respect." Id. at 10.
It would appear that the municipal court judge, in overruling defendant's objection, accepted that the prosecutor's cross-examination might yield evidence of defendant's character trait for untruthfulness, noting that if she "lied to get a Nevada license . . . then maybe she lied about where she was on July 11th[.]" However, it has long been held that the defendant's "mere taking of the stand . . . does not provide justification for the State's going forth with 'bad character' evidence. "Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 404 (2008)(citing State v. Linder, 170 N.J. Super. 548, 557-558 (App. Div. 1979)(holding, "[w]here . . . a defendant testifies on his own behalf, he does not thereby put into issue his general character or propensities")).
As in De Paola, whether defendant lied to obtain a Nevada driver's license, or whether she appropriately maintained necessary tax and payroll information on her employees had nothing to do with the charge of prostitution. Nor had defendant been convicted of any offense regarding this conduct. Thus, under Rule 608, questioning her about it was impermissible.
Moreover, even if the evidence was not seen as an attack upon defendant's character per se, it was inadmissible under Rule 607. "Although extrinsic evidence may be admitted to impeach a witness . . . its probative value as impeachment evidence must be assessed independently of its potential value as substantive evidence." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494 (1999); see also Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2008)(noting "[t]he only evidence that may be introduced is that which contradicts or calls into question the witness's version of the facts; only that evidence is relevant"); and see State v. Hutchins, 241 N.J. Super. 353, 361 (App. Div. 1990)(noting "[i]rrelevant evidence which might improperly affect a witness' credibility may not be admitted into evidence"). Here, whether defendant lied to obtain a Nevada driver's license or whether she kept appropriate business records had nothing to do with whether she was, or was not, the woman who engaged in prostitution with Bennett.
Lastly, to the extent the prosecutor's cross-examination intimated that defendant had committed a separate crime or civil wrong, it was prohibited by N.J.R.E. 404(b)(barring evidence of "other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith"). While such evidence may be admissible to impeach a testifying defendant's credibility, State v. Lykes, 192 N.J. 519, 537 (2007), it must still be evaluated under the four-prong test enunciated in State v. Cofield, 127 N.J. 328, 338 (1992). Id. at 535. It is obvious to us that in this case, the evidence could not pass even the first prong of the Cofield analysis, i.e., "[t]he evidence of the other crime must be admissible as relevant to a material issue." Cofield, supra, 127 N.J. at 338. Defendant's possession of a Nevada's driver's license and her failure to keep payroll and tax records were not relevant to whether she committed prostitution.
We reject the State's arguments that defendant failed to raise the issue below, thus barring our consideration of it on appeal, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), or that she "opened the door" to the objectionable cross-examination. First, defendant clearly raised the issue at trial before the municipal court judge, and, to the extent her de novo appeal challenged the judge's credibility determinations, she adequately challenged the admission of the evidence below. Second, it was the prosecutor, not defendant, who introduced her license in evidence. She merely attempted to explain why it was a Nevada license, and, in our opinion, that did not "open the door" to the full frontal assault on her credibility. As to the lack of business and tax records, defendant did not raise the issue at all during her direct testimony, nor, in our opinion, did any of her answers permit the innuendo raised by the prosecutor's vigorous cross-examination thereafter.
When prejudice inures to a defendant based upon an erroneous evidence ruling, see State v. Benthall, 182 N.J. 373, 385 (2005), and that error is "clearly capable of producing an unjust result," Rule 2:10-2, reversal is required. In this case, both judges below relied extensively upon defendant's answers to cross-examination questions that were improper in deciding the critical credibility issue raised by the conflicting evidence. As a result, we reverse defendant's conviction and remand the matter for a new trial. Because the municipal court judge who originally heard the matter should not be placed in the position of having to judge defendant's credibility anew if she testifies again, we further order that the new trial, if one occurs, take place before a different judge.
B.
We address the other two points defendant raises for purposes of providing guidance in the event the case is re-tried. She contends that the State failed to adequately prove identification, and failed to prove all the necessary elements of prostitution, N.J.S.A. 2C:34-1b(1). We conclude both arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only these brief comments.
While the conduct of the investigation leading to defendant's identification and the issuance of a summons was unusual at the least, Bennett identified defendant in the courtroom as the person who engaged in prostitution on the day in question. Defendant's arguments in this regard all go to the credibility of Bennett in general, as well as the certainty of his identification in particular, but they do not form a basis for reversal. If Bennett's in-court identification of defendant as the woman who engaged in prostitution with him is believed beyond a reasonable doubt, then the State has carried its burden of proof. Defendant conceded as much at oral argument before us.
Defendant argues that the State failed to prove she engaged in sexual activity in exchange for something of economic value. She claims that because Bennett testified that he paid the standard fee for a massage, sixty dollars, a fact corroborated by defendant, plus a tip of twenty dollars, and paid nothing more for the sexual activity, the State's proofs were deficient. We find no merit to this contention.
N.J.S.A. 2C:34-1b(1) provides that "[a] person commits an offense if . . . the actor engages in prostitution[.]" "Prostitution" is defined as "sexual activity with another person in exchange for something of economic value, or the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value." N.J.S.A. 2C:34-1a(1). "Sexual activity" includes "masturbation" or the "touching of the genitals." N.J.S.A. 2C:34-1a(2). If Bennett's testimony is believed beyond a reasonable doubt, defendant engaged in sexual activity and received something of value in return. Whether she would have received more money had Bennett not told her to stop is irrelevant.
Reversed. The matter is remanded for a new trial in the municipal court before a different municipal court judge. We do not retain jurisdiction.
It is apparent that Bennett attempted to serve, and thereafter successfully served defendant by mail, with a "summons" complaint, not an arrest warrant. R. 7:2-1(b) and (c).
The Guenther court carved out a narrow exception to this prohibition, permitting "in limited circumstances and under very strict controls[,] a defendant [] the right to show that a victim-witness has made a prior false criminal accusation for the purpose of challenging that witness's credibility." Guenther, supra, 181 N.J. at 154. This led to the subsequent adoption of N.J.R.E. 608(b). Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 608 (2008).
Despite the municipal court judge's reference to "a section . . . that implicates the owner or the manager of a massage therapy place if there is sexual activity going on and they're paid[,]" the State did not contend that defendant owned or managed a "house of prostitution," N.J.S.A. 2C:34-1a(3), and was therefore guilty of "promoting prostitution," N.J.S.A. 2C:34-1b(2). Evidence of defendant's maintenance of personnel and tax records of her employees, or her failure to do so, might be relevant to such a charge.
(continued)
(continued)
18
A-3072-07T4
January 20, 2009
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