Opinion
DOCKET NO. A-0323-12T4
10-09-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHELLE LYNCH, Defendant-Appellant.
Law Office of Katrina Vitale, LLC, attorneys for appellant (Meryl Pedersen, on the briefs). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Margaret A. Cipparrone, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-15-12. Law Office of Katrina Vitale, LLC, attorneys for appellant (Meryl Pedersen, on the briefs). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Margaret A. Cipparrone, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from her convictions for driving while intoxicated, N.J.S.A. 39:4-50, and refusal to submit to Alcotest testing, N.J.S.A. 39:4-50.4(a), raising the following points in this appeal:
POINT I
THE COURT ERRED IN NOT ALLOWING A POSTPONEMENT FOR APPELLANT'S PHYSICIAN TO APPEAR.
POINT II
THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT REFUSED TO TAKE THE ALCOTEST.
POINT III
THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS OPERATING THE VEHICLE WHILE INTOXICATED.
We are unpersuaded by any of these arguments and affirm.
I
Defendant's argument regarding a postponement lacks any merit for several reasons, not the least of which is that no motion was made to request an adjournment. The issue was raised for the first time after the State rested. The court asked defense counsel if any evidence was to be presented on behalf of defendant and received the following reply:
Yes, Your Honor. Your Honor, I will have Ms. Lynch testify as a preliminary matter. But, Your Honor, also, for the record, I did send a subpoena to Ms. Lynch's treating physician at Deborah Heart and Lung Center. . . . And I subpoenaed her to testify in this matter as to . . . Ms. Lynch's difficulty with asthma, difficulty breathing and her course of treatment . . . . This morning, at about 8:59, my office received a call from . . . an attorney for Deborah Hospital, advising that [the doctor] would
not be available for court today, but that if the matter was rescheduled, that she would be available.
The prosecutor responded, noting that on February 6, 2012, the court gave the defense thirty days in which to produce an expert report or expert testimony would be barred. The only document produced had been a letter in which the physician stated defendant was diagnosed on January 18, 2012, as suffering from asthma and required the use of an Albuterol inhaler for acute exacerbation of symptoms. A colloquy between the court and defense counsel followed:
THE COURT: Okay. Well, [defense counsel] indicated that for the record. There's actually no motion pending before me. You did indicate Ms. Lynch wishes to testify today, [counsel]?
[DEFENSE COUNSEL]: Yes.
At the close of defendant's testimony, the court asked if there were any other witnesses on behalf of the defense. Counsel replied, "Not at this time," but made no request for a continuance to permit additional testimony.
A motion for an adjournment or a continuance is a matter that lies within the discretion of the court "'and its denial will not lead to reversal unless it appears from the record that the defendant suffered manifest wrong or injury.'" State v. Hayes, 205 N.J. 522, 537 (2011) (quoting State v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926)); see also State v. McLaughlin, 310 N.J. Super. 242, 259 (App. Div.), certif. denied, 156 N.J. 381 (1998). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir. 1985)); Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011).
In this case, no unambiguous request for an adjournment or continuance was made. Despite the court's ruling that expert testimony would be barred if no report was produced within the thirty-day period, no report was produced. The letter only reflected a diagnosis, made almost one year after defendant was arrested. In short, there is nothing in the record to support a conclusion that, if the trial court had sua sponte ordered a continuance, the physician's testimony would have altered the result.
II
Defendant also challenges the sufficiency of the evidence to prove she was operating the vehicle while intoxicated or that she refused to take the Alcotest. These arguments also lack merit.
Defendant's erratic driving on March 6, 2011 was reported to the police by two citizens, R.M. and E.M., who both testified at trial. They had just passed Exit 21 on Route 295 when E.M. observed an SUV driven by a female almost rear end them. R.M. had seen the vehicle traveling "pretty fast" and in a reckless manner, not maintaining its lane, on Route 295. When their vehicle left Route 295, the other vehicle followed, "coming up behind" them, causing E.M. to be concerned that it would hit them in the rear if R.M. stopped before turning left onto Crown Point Road.
E.M. described the vehicle as a Chevy Blazer. R.M. described the vehicle as a Dodge Durango.
After making the turn, R.M. pulled over and called 911 to report the erratic driving of the other vehicle. While he was speaking to Gloucester County Dispatch, E.M. saw the driver of the SUV fail to properly negotiate a bend in the road, narrowly missing a fence. R.M. testified that the vehicle swerved into the lane for oncoming traffic. Both E.M. and R.M. testified about the SUV striking a drawbridge. R.M. stated that the vehicle struck the drawbridge with such force that both tires were flattened on the passenger side and the front end was damaged. E.M. screamed because she was afraid the SUV was going to go through the guardrail. Despite the flat tires, the driver continued to drive until she stopped on Thompson Avenue.
The police arrived and R.M. parked near the SUV. E.M. did not leave their vehicle and testified she could not identify the female driver. However, R.M. identified defendant as the driver of the SUV.
Officer Chris Gilchrist of the Paulsboro Police Department was dispatched to the scene. After speaking to E.M. and R.M., he proceeded to the SUV, where he saw defendant in the driver's seat and the keys in the ignition. He explained to defendant why he was there and observed he was amazed that a vehicle so damaged "got that far." Defendant said she did not realize she was in an accident.
Gilchrist detected a strong odor of alcohol from defendant and observed her speech was slow and slurred. He asked her to perform field sobriety tests. Defendant swayed back and forth when asked to stand with her feet together, arms at her side and eyes closed. She kept falling forward during a second field sobriety test. Gilchrist then arrested defendant, advised her of her Miranda rights and transported her to police headquarters.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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After waiting the twenty-minute observation period and reading the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle to defendant, Gilchrist asked defendant if she would submit breath samples for testing. She first responded, "It doesn't make any sense to me," but after Gilchrist read the additional text of the Statement to her, she responded, "Yes, anything you want me to do." Defendant was permitted to attempt to provide breath samples four times but failed to provide the required minimum volume necessary for such testing.
Defendant testified that she did not have any motor vehicle accident on the day she was arrested and that her car had been damaged approximately six or seven months earlier. She denied being asked to perform any field sobriety tests and stated that her right knee buckled when she tried to step off the curb. She also denied receiving Miranda rights or refusing to blow into the Alcotest machine. She also claimed she told Gilchrist she had asthma and asked to be taken to the hospital. Defendant also contended that E.M. was biased against her, stating that once she got into court, she realized that she had a physical altercation with E.M. approximately twenty years earlier.
The municipal court judge made a finding that Gilchrist's testimony was credible and that the evidence from the State's three witnesses established defendant's guilt beyond a reasonable doubt of driving under the influence of alcohol. As to the refusal charge, the municipal court noted that the exhibit stipulated in evidence showed that in the four attempts, defendant failed to produce even half of the breath sample required for testing. The municipal court concluded the evidence proved defendant's guilt on the refusal charge beyond a reasonable doubt. The court acquitted defendant of reckless driving charges. On appeal, the Law Division judge found the evidence produced in the municipal court proved defendant's guilt of driving under the influence and the refusal charge beyond a reasonable doubt. We agree.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION