Opinion
DOCKET NO. A-4548-11T4
03-27-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JANG S. CHOI, Defendant-Appellant.
Louis M. DiLuzio argued the cause for appellant (Fahy Choi, L.L.C., attorneys; Mr. DiLuzio, on the brief). William P. Miller, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Miller, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Harris.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 1-02-12.
Louis M. DiLuzio argued the cause for appellant (Fahy Choi, L.L.C., attorneys; Mr. DiLuzio, on the brief).
William P. Miller, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Miller, of counsel and on the brief). PER CURIAM
Defendant Jang S. Choi appeals from an April 3, 2012 order of the Law Division, denying his motion to suppress the evidence of his refusal to submit to a breath test. For the reasons that follow, we affirm the April 3, 2012 order.
Defendant was arrested on May 24, 2011 for a variety of traffic offenses, including driving while intoxicated, N.J.S.A. 39:4-50. After being transported to the Closter Borough police station, he was also charged with refusing to submit to an Alcotest, N.J.S.A. 39:4-50.2 and -50.4a. Defendant later pled guilty to DWI, and that charge is not at issue here. However, he filed a motion to suppress evidence of his refusal to take the breath test, contending that significant portions of the Korean translation of the standard statement, N.J.S.A. 39:4-50.2(e), were incorrect and incomprehensible.
The evidence presented at the municipal court addressed two issues. The first issue was whether defendant spoke and understood sufficient English that he was capable of understanding, and did understand, the English version of the standard statement. The second issue was whether the Korean translation was fatally flawed.
On the first issue, the State presented testimony from the arresting officer, John McTigue. He testified that during the traffic stop, it was clear to him that English was not defendant's first language. However, when he asked defendant whether "he had any difficulty understanding the English language," defendant responded "no, I understand." Officer McTigue then subjected defendant to a series of field sobriety tests, giving the instructions in English, and he observed that defendant responded without hesitation to all of the instructions. As McTigue continued to give instructions during the sobriety tests, defendant stated, "I understand, please continue."
At the time of the arrest, McTigue was a patrolman. By the time of the trial, he had been promoted to detective. For purposes of this opinion, we will refer to him as Officer McTigue or McTigue.
When they arrived at the police station, McTigue offered defendant a copy of the Korean translation of the standard statement form. McTigue told defendant:
I understand that Korean is your primary language and English may be your secondary language. What I would like to do, if it's okay for you, to read along in Korean on this particular form, as I read the standard statement form to you in English. And then would you prefer to do it that way or would you prefer to have me just read it.Defendant told McTigue "that would be fine, that he read it in Korean . . . as I read it in English." McTigue testified that although defendant spoke English, he "wanted him to be able to understand all of the instructions in the standard statement form itself."
Accordingly, McTigue read the instructions to defendant aloud in English, while defendant read the Korean translation. On cross-examination, McTigue clarified that after he read each of the several sections of the form, he paused, made eye contact with defendant, and made sure defendant was following along. McTigue believed that defendant was listening to him reading the English version, in addition to reading the Korean version. He asked defendant if he understood the instructions, but did not specifically ask defendant whether he understood the Korean version of the instructions.
After this process was completed and McTigue read the last question on the first section of the form, as to whether defendant was going to submit the breath samples, defendant asked, in English, "Can I call my attorney?" McTigue wrote down defendant's response on the form and asked defendant to initial that response. Deeming the response to be less than an unconditional "yes," McTigue then read to defendant the next set of standard instructions concerning the consequences of failing to unconditionally agree to give a breath sample. Defendant's response once again was "Can I call my attorney?" McTigue then told defendant that based on his response, he was going to charge defendant with refusing to submit breath samples, "and that he did not have the right to speak to his attorney." He also asked defendant to initial the Korean translation.
According to McTigue, while he was writing out several summonses relating to the motor vehicle stop, he and defendant had a twenty-minute conversation in English. They discussed defendant's employment with a large multi-national electronics company and the products that the company was about to bring to market. During their conversation, defendant explained to McTigue the details of the company's new 3-D televisions.
On cross-examination, McTigue testified that he and defendant also had a "lengthy conversation" on the road side, in which he explained "how to do the physical balance tests, making sure that [defendant] knew that he had every right to stop me at any point in time if he had questions." McTigue perceived that defendant understood what he was staying.
Defendant testified through a Korean interpreter. He stated that at the time of his May 24 arrest, he had only been in the United States since April 20. He testified that he spoke "basic English," enough for a simple conversation, but he was not fluent. He recalled that Officer McTigue asked him simple questions during the road side stop, and he understood what McTigue was saying. He also recalled the later conversation with McTigue at the police station, concerning his employment and the televisions his employer produced. However, he insisted that his English was "not good enough to carry [on] a conversation regarding [the] technology of a TV in depth."
According to defendant, when he read the Korean translation of the standard statement, "there were many areas that [weren't] really done well, so I could not quite comprehend," and that was why he asked to speak to a lawyer. Defendant testified that he did not understand "at all" the English version of the form that McTigue was reading to him. He testified that he was not listening to McTigue, but rather was reading the Korean version of the statement.
On cross-examination, defendant testified that he was employed as the manager in charge of his company's New Jersey office. He testified that in Korea, he studied English grammar and linguistics, but not conversational English. According to defendant, he did not need to speak English at his New Jersey office because all of the employees he managed were Korean.
Defendant was also questioned further about the Korean translation of the standard statement. When asked whether he told Officer McTigue that he was having trouble understanding the statement, defendant did not directly answer that question but instead responded, "[t]hat's why I ask, call the lawyer." He testified that the Korean statement was not written in the way that normal Korean sentences would be written. Defendant did not "have a clear recollection" whether Officer McTigue asked him if he understood the Korean version of the statement.
Defendant also presented testimony from Duk Lee, a certified Korean-language court interpreter, who provided translation services in various New Jersey courts. He testified that the Korean version of the statement was not an accurate translation of the English version. In some cases, the Korean translation used different words than the English version; in other cases, the Korean version used words or phrases that a Korean speaker would not understand. During Lee's testimony, the judge noted that the translation Lee was providing in court was different from the translation he provided in the certification submitted with defendant's suppression motion. By agreement of the parties, the judge admitted in evidence the report of a second Korean translator, Professor Chou, who also criticized the Korean translation of the statement.
In rebuttal, the State presented testimony from Officer Thomas Brueck of the Closter Police Department. Officer Brueck testified that he arrived at the scene of defendant's arrest, after Officer McTigue called for back-up. He heard defendant tell McTigue that he understood English, and heard defendant respond several times to McTigue's questions during the field sobriety tests, telling McTigue that he understood his instructions.
Officer Brueck also was present at the police station and observed Officer McTigue reading defendant the standard statement. He heard defendant ask for "his attorney" at the end of the first and second sections of the standard statement. Brueck also testified that he was sitting nearby while Officer McTigue and defendant had a conversation about defendant's employment and "a new hi-tech . . . HDTV." According to Officer Brueck, he understood defendant "perfectly." Brueck testified that defendant had "[v]ery little" accent and appeared to understand everything McTigue was asking him:
Mr. Choi understood the English language perfect. He was speaking perfect. I understood him perfectly. And based on the conversation going back and forth, it appeared they both understood themselves, you know, speaking to each other in the context they were talking in.
The municipal judge placed his oral opinion on the record immediately after the hearing. He credited the testimony of the two police officers concerning their observations of defendant's ability to speak English. The judge did not find defendant to be a credible witness. He noted that defendant appeared to be trying to minimize his understanding of English, but answered questions before the translator finished translating them. He also found that defendant "tried to minimize" the conversation he had with Officer McTigue about his employment and the televisions his employer produced. The judge found as fact that defendant "understood English in his own capacity" and that he was capable of understanding the English version of the standard statement as Officer McTigue read it to him.
The judge also did not find the translator, Lee, to be entirely convincing. He found that Lee was exaggerating the alleged problems with the Korean translation, and that his hearing testimony varied from his motion certification. The judge also noted his sense, from the testimony and from the certification, "that English and Korean are not mutually translatable languages in terms of . . . syntax and grammar." The judge read into the record several examples where he found that Lee's translation of the statement was the functional equivalent of the English version, even if the precise wording was slightly different. He concluded that "[t]he Korean translation, while somewhat different, conveys the intent and purpose of the English version of the standardized statement."
On those two alternate bases — that defendant understood English well enough to comprehend the English version of the statement, and that the Korean translation was adequate — the judge found that defendant "was advised of his rights in terms of refusal." He therefore denied the suppression motion.
Following the judge's decision, defendant pled guilty to the DWI charge, and entered a conditional plea of guilty to refusal. The judge imposed a three-month license suspension for the DWI conviction and a seven-month suspension on the refusal conviction, but stayed the sentence pending appeal. He also apparently stayed a determination whether to make the sentences concurrent or consecutive, pending the outcome of defendant's appeal.
At oral argument of this appeal, both sides agreed that if we affirmed the conviction, a remand would be required to complete the imposition of the sentence. Because defendant had not been completely sentenced at the time he filed his notice of appeal with this court, the appeal was interlocutory. In the interests of justice, we grant leave to appeal nunc pro tunc. For future reference, even if the municipal judge intended to stay the sentence pending defendant's appeal to the Law Division and to this court, he should have completed his adjudication of the case by imposing the sentence. It is not clear whether the parties brought the sentencing issue to the attention of the Law Division judge, however, the Law Division should have remanded the case to the municipal court for sentencing before defendant filed his appeal with this court.
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On appeal to the Law Division, the judge found the case "difficult." However, he gave "great weight" to the municipal judge's "findings of credibility." He found "de novo" that "this was a knowing refusal." He found that defendant "did understand enough English, coupled with the final paragraph" of the standard statement "to realize that he was not entitled to an attorney at that time," and that "he did have to give a breath sample . . . for the Alcotest machine." The judge indicated that he found Officer McTigue's testimony "clear and convincing so much so that there's no question in my mind that this was a knowing refusal."
On an appeal from the municipal court, the Law Division is required to make findings de novo, giving appropriate but not necessarily controlling weight to the municipal judge's credibility findings. State v. Johnson, 42 N.J. 146, 157 (1964). Our standard of review on an appeal from the Law Division is likewise clear. We will not disturb the Law Division judge's factual findings so long as they are supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999); Johnson, supra, 42 N.J. at 162. We owe particular deference to credibility findings when both the municipal judge and the Law Division judge make the same credibility determinations. Locurto, supra, 157 N.J. at 474.
We acknowledge that the Law Division judge's factual findings are not a model of clarity. It is not clear whether his comment about the "last paragraph" of the standard statement refers to the Korean version or the English version. However, considering the comment in context, we infer that the judge was referring to the English version. After reviewing the entire record, we find no basis to disturb the Law Division's ultimate conclusion, that defendant made a knowing refusal to give a breath sample.
In particular, we find no basis to disturb the determinations of both judges that Officer McTigue was a credible witness. According to McTigue, defendant spoke and understood English. Defendant understood all of McTigue's instructions during the field sobriety tests. As McTigue was reading the standard statement to defendant, he paused after every paragraph and made eye contact with defendant to be sure he was following along. Defendant never indicated, at any point in that process, that he was having trouble understanding either the English version McTigue was reading or the Korean translation. Defendant did not testify that he felt intimidated by McTigue, nor did he offer any explanation as to why, if he was having trouble understanding the statement, he did not say so. Defendant later engaged in an extended discussion with McTigue about his employment as a high-level manager, in charge of his company's New Jersey office, and he explained his company's new products to McTigue. Officer McTigue's version of events was corroborated by a second police officer.
In breath test refusal cases, "[d]efendants who claim that they do not speak or understand English must bear the burden of production and persuasion on that issue." State v. Marquez, 202 N.J. 485, 514 (2010). Under the circumstances, defendant did not carry his burden. The record supports the findings that defendant spoke English well enough to understand the standard statement in English, that he understood his unconditional obligation to give a breath sample, but he knowingly declined to give the sample. See id. at 510 ("[R]eading the standard statement in English to motorists who speak English will suffice" to inform them of the consequences of refusal.).
In light of that conclusion, we need not decide the second issue concerning the adequacy of the Korean translation of the standard statement. However, we note that at oral argument, counsel advised us that effective July 1, 2012, the Attorney General issued a revised English version of the standard statement and a revised Korean translation. See Marquez, supra, 202 N.J. at 511-12 (addressing the responsibility for drafting and translating the standard statement).
We affirm defendant's conviction for refusing the breath test, and we remand this case to the Closter Municipal Court for sentencing.
Affirmed in part, remanded in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION