Opinion
DOCKET NO. A-1780-11T3
03-28-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EMMITT WORTHY, III, Defendant-Appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., attorneys for appellant (Dominick C. Capozzola and Cheoma M. Smith, on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Reema Sethi Kareer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-086.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., attorneys for appellant (Dominick C. Capozzola and Cheoma M. Smith, on the brief).
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Reema Sethi Kareer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from his de novo convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; reckless driving, N.J.S.A. 39:4-96; and leaving the scene of an accident, N.J.S.A. 39:4-129. We affirm.
In March 2011, Municipal Court Judge Ira A. Cohen tried this matter. The State offered testimony from Officer Roger Bruce Heesman and four independent witnesses. Defendant testified on his own behalf and did not produce any witnesses. The primary disputed issue during the trial was whether defendant operated a vehicle that was involved in an accident. The following facts were adduced at trial.
Alba Veronica Rodriguez, Jesus Manuel Castro Torres, Everit Montoya, and Marta Louise Palacio.
On July 19, 2010, at approximately 10:30 p.m., Officer Heesman responded to a call regarding a motor vehicle accident in an apartment complex parking lot. He arrived at the scene and observed fluid on the roadway and ten to fifteen pedestrians standing in the lot. He noticed two vehicles in the roadway, a Chrysler with severe front-end damage and a pick-up truck. He spoke to several witnesses, including Rodriguez and Torres, and then he talked to defendant. Defendant indicated to him that he owned the Chrysler and admitted that he was operating it. He explained that he was attempting to park his vehicle and lost control of it because the accelerator got stuck. The officer then learned that three additional vehicles were damaged near where defendant attempted to park.
During his conversation with defendant, the officer detected an odor of alcohol emanating from defendant's breath. As a result, the officer conducted several field sobriety tests. Defendant failed the tests and the officer arrested him, read him his Miranda warnings, and transported him to police headquarters, where defendant refused to submit to the breathalyzer test. Officer Heesman observed at the police station that defendant's eyes were watery and bloodshot, defendant staggered while walking, rambled and slurred his speech, fumbled his hands, and continued to smell of alcohol. The officer then charged him with the offenses.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Rodriguez, who lived in the apartment complex and did not know defendant, testified that she observed defendant pull out of a parking place, turn right, and then accelerate into a parked vehicle. She explained that defendant continued forward pushing that vehicle into two other vehicles. She then watched a pick-up truck block defendant's Chrysler as he attempted to leave the scene. Montoya, the driver of the pick-up truck who did not know defendant, testified that he used his vehicle to block the Chrysler as defendant attempted to leave. Montoya testified that defendant drove the Chrysler and no one else was in the vehicle.
Torres and Palacio, who did not know defendant, testified that defendant attempted to leave the parking lot. Palacio stated that she approached the Chrysler as defendant attempted to leave the scene, reached into the driver's side window, and grabbed defendant by his shirt. Palacio confirmed that defendant was alone in the vehicle.
Defendant testified that he was a passenger in the Chrysler. He indicated that his friend, Lauren Sheplack, operated his vehicle and made a sharp turn crashing into the other vehicles. He stated that Sheplack then jumped out of her seat and over defendant, exited out the passenger side of his vehicle, and then ran towards nearby apartments.
Judge Cohen rendered an oral opinion at the end of the second trial day, indicated that the officer was "a credible and truthful witness," and stated that
the [State's civilian] witnesses . . . [were] very credible. . . . They didn't know the defendant. This happened many, many months ago. They came to court. They wanted to be heard. . . . [T]hey had been here previously on nights when the case did get adjourned and . . . they . . . returned. There is no reason that this [c]ourt can ascertain why these four independent witnesses would in any way, shape, manner,Judge Cohen then found defendant guilty of the charges and issued the appropriate fines and penalties. Judge Cohen sentenced defendant as a second-time offender and imposed an aggregate two-year and seven-month driver's license suspension. Defendant appealed to the Law Division and unsuccessfully sought a stay of his license suspension.
or form, come to this [c]ourt and tell anything but the truth . . . .
. . . .
On the other hand, the [c]ourt has to then weigh . . . the testimony of [defendant] . . . .
[A]nd quite candidly, the [c]ourt finds [defendant's] testimony to be very suspect. . . .
[W]hen this [c]ourt reviews the issue of credibility . . . [defendant] was rather incredible . . . .
The judge sentenced defendant to a two-year license suspension, two days in the inpatient Intoxicated Driver's Resource Center (IDRC), thirty days community service, and a one-year ignition interlock device term on defendant's vehicle for driving while intoxicated, N.J.S.A. 39:4-50; a consecutive seven-month license suspension and twelve hours to be served in the IDRC for refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; and a concurrent six-month license suspension for leaving the scene of an accident, N.J.S.A. 39:4-129.
On October 28, 2011, Judge Stuart A. Minkowitz conducted a de novo trial. The judge found defendant guilty of the charges and imposed an aggregate two-year and seven-month loss of license. We denied defendant's motion to stay his sentence. This appeal followed.
The judge sentenced defendant to a two-year license suspension, two days in the impatient IDRC, thirty days community service, and a three-year ignition interlock term on defendant's vehicle for driving while intoxicated, N.J.S.A. 39:4-50; a consecutive seven-month license suspension, twelve hours in the IDRC to be served consecutively, and one-year concurrent interlock device term for refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; and a concurrent six-month license suspension for leaving the scene of an accident, N.J.S.A. 39:4-129.
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On appeal, defendant raises the following points:
POINT I
STANDARD OF REVIEW.
POINT II
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
A. Defendant's Counsel Did Not Meet With Defendant Prior to Trial.POINT III
B. Defendant's Counsel Erred In Not Requesting That the State's Witnesses Be Sequestered During the Testimony of the Other Witnesses.
C. Defendant's Counsel Did Not Take Reasonable Measures To Ensure the Availability of Exculpatory Witnesses.
D. Defendant's Counsel Did Not Sufficiently Cross-Examine the State's Witnesses.
E. Defendant's Counsel Did Not Make Appropriate Objections to Prevent the Court From Stepping Outside Its Role As Fact-Finder
AS AN INDEPENDENT BASIS FOR RELIEF, THE NUMEROUS PREJUDICIAL ERRORS COMMITTED BY THE TRIAL COURT REQUIRE REVERSAL OF THE CONVICTIONS.
In a matter such as this, our scope of review is limited. Following defendant's conviction in municipal court, he appealed to the Law Division pursuant to Rule 3:23-1. See, e.g., State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003). The Law Division judge then conducted a trial de novo on the municipal court record pursuant to Rule 3:23-8(a). See, e.g., State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012). In conducting that trial, the Law Division judge was required to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964); Adubato, supra, 420 N.J. Super. at 176. In our review, we must likewise give deference to the findings of the trial judge who was influenced by his opportunity to hear and see the witnesses. Johnson, supra, 42 N.J. at 161. We then determine whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Our review of the law, however, is de novo. Id. at 158-59; Adubato, supra, 420 N.J. Super. at 176.
We begin by addressing defendant's arguments that the judge erred by (1) denying defendant's request for more time to obtain testimony from "potentially" exculpatory witnesses, (2) failing to sequester the witnesses; and (3) cross-examining him "hostilely."
On the first day of trial, defense counsel asked for an adjournment because two witnesses he subpoenaed failed to appear. He explained to Judge Cohen that the certified mailing was returned and the regular mailing "did not come back." The municipal prosecutor objected to the adjournment request, indicated that Judge Cohen informed defendant and his two prior attorneys "with respect to future adjournments," and stated that the State's witnesses were present. Judge Cohen started the trial and indicated that the "matter ha[d] been before the [c]ourt on numerous occasions." The judge allowed defense counsel, however, an opportunity to procure his subpoenaed witnesses by continuing the trial for one week. Judge Cohen commenced the second day of trial, almost two hours passed, and the defense witnesses again failed to appear. We see no error here.
Defendant contends that Judge Cohen erred by failing to sequester the State's witnesses. The right to sequester witnesses is governed by N.J.R.E. 615, which states 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." To be clear, defense counsel did not move to sequester the State's witnesses. We reject defendant's contention that Judge Cohen erred by failing to order sequestration sua sponte. A judge has discretion to order sequestration, State v. Williams, 404 N.J. Super. 147, 159 (App. Div. 2008), certif. denied, 201 N.J. 440 (2009), and we see no error here. Even a violation of a sequestration order does not automatically exclude a witness's testimony "[a]bsent a clear showing of prejudice." Id. at 160. Here, defendant has failed to demonstrate prejudice. Judge Cohen made specific credibility findings regarding the State's witnesses, and remarked "[t]here is no reason that . . . these four independent witnesses would in any way, shape, manner, or form, come to this [c]ourt and tell anything but the truth."
We also reject defendant's assertion that Judge Cohen cross-examined him "hostilely." A judge is authorized to ask questions of witnesses, N.J.R.E. 614, which we review under an abuse of discretion standard. State v. Medina, 349 N.J. Super. 108, 130-31 (App. Div.), certif. denied, 174 N.J. 193 (2002). A court may examine witnesses to clarify testimony, aid the court's understanding, elicit material facts, and assure the orderly and expeditious conduct of the trial. Ibid. Concerns about the impact of the judge as questioner "are less acute in the context of bench trials, where judges serve as fact finders and have more latitude in questioning witnesses." State v. Taffaro, 195 N.J. 442, 451 (2008). We have carefully reviewed the trial transcripts and conclude that there was no abuse of discretion. Judge Cohen asked defendant a limited amount of follow-up questions for clarification and did not assume the role of an advocate. Moreover, in his de novo review, Judge Minkowitz disregarded "all of [defendant's] responses . . . to Judge Cohen's questions." Thus, no prejudice resulted.
Finally, defendant contends that his trial counsel was ineffective by failing to (1) meet with him prior to the trial date; (2) request sequestration of the witnesses; (3) take reasonable measures to ensure the availability of exculpatory witnesses; (4) sufficiently cross-examine the witnesses; and (5) object to the judge's questioning of defendant. We conclude that these claims are premature and not appropriate in this direct appeal.
To establish ineffective assistance of counsel, a defendant bears the onerous burden of proving two essential elements: (1) that trial counsel "performed below a level of reasonable competence"; and (2) "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 694 (1984)). Our Supreme Court has expressed a preference for resolving ineffective assistance of counsel claims on collateral review. State v. Preciose, 129 N.J. 451, 459-60 (1992). However, where the allegedly deficient conduct is a matter wholly within the trial record, an appellate court may review the claim on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006). Because most of defendant's claims rest entirely upon evidence outside the record, they are not ripe for direct review.
Given our standard of review, we are satisfied that the record contains sufficient credible evidence that defendant is guilty of the charges beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION