Opinion
DOCKET NO. A-2488-11T3
03-15-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PHILIP H. GERTNER, Defendant-Appellant.
John Menzel argued the cause for appellant. Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez and St. John.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2011-030.
John Menzel argued the cause for appellant.
Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, on the brief). PER CURIAM
Defendant Philip H. Gertner was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50, marijuana possession, N.J.S.A. 2C:35-10(a)(4), and use or possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2. Defendant was additionally charged with the use of or being under the influence of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(b). The prosecutor subsequently dismissed the DWI charge.
I.
At the Miranda hearing in municipal court, defendant's motion to exclude his confession to marijuana use was denied. The municipal judge also denied defendant's motion to suppress evidence obtained through an allegedly unconstitutional search of defendant's car.
After a two-day trial, defendant was found guilty of the remaining three counts. The municipal judge suspended defendant's license for six months and imposed a fine of $250, $30 in court costs, $50 for the Victims of Crime Compensation Board, $75 for the Safe Neighborhoods Services Fund, $500 for Drug Enforcement Demand Reduction, a $50 laboratory fee, and $50 for Drug Abuse Resistance Education. Defendant appealed.
Judge Ramona A. Santiago conducted a de novo trial and issued a written opinion, finding defendant not guilty of marijuana possession and CDS use, but guilty of the drug paraphernalia charge. The trial judge imposed the same fines and penalties as imposed by the municipal court. It is from that conviction that defendant appeals.
On appeal, defendant raises the following points for our consideration.
POINT I
THE TRIAL COURT DEPRIVED DEFENDANT OF A FAIR TRIAL AND ABUSED ITS DISCRETION BY PERMITTING THE STATE TO PROVIDE DISCOVERY AND CALL A PREVIOUSLY UNIDENTIFIED WITNESS DURING TESTIMONY AFTER HAVING ORDERED DISCOVERY CLOSED.
POINT II
THE CHECKPOINT HERE FAILED TO MEET CONSTITUTIONAL STANDARDS GROUNDED ON OBJECTIVE ANALYSIS OF EMPIRICAL DATA AND ADVANCE PUBLICITY TO THE PUBLIC.
A. Because the State Failed to Introduce Sufficient Empirical Data and Perform Sufficient Analysis to Enable This Court to Determine the Efficacy of the Checkpoint Here, This Court Should Declare Defendant's Stop Invalid and Suppress the Evidence Against Him.
B. Because the State Failed to Give Notice of the Checkpoint's Existence to the Public, This Court Should Declare Defendant's Stop Invalid and Suppress Evidence Against Him.
POINT III
THE STATE USE OF LAWFUL CONDUCT TO SHOW REASONABLE SUSPICION OF UNLAWFUL CONDUCT FAILED TO ESTABLISH PROBABLE CAUSE TO STOP AND REMOVE DEFENDANT FROM TRAFFIC.
POINT IV
POLICE VIOLATED DEFENDANT'S MIRANDA RIGHTS WITH THREATS TO DRAW BLOOD THAT OVERCAME HIS FREE WILL TO RESIST QUESTIONING.
POINT V
BECAUSE THE STATE FAILED TO ESTABLISH THAT THE SUBSTANCE SEIZED WAS MARIJUANA, THIS COURT SHOULD EXCLUDE IT FROM EVIDENCE AND NOT USE IT IN ITS DETERMINATION OF WHETHER DEFENDANT POSSESSED PARAPHERNALIA.
A. The Municipal Court Violated Defendant's Right to Confront Witnesses Against Him by Prohibiting Cross Examination of the Chemist About the Analysis of Alleged Marijuana and Permitting the Chemist to Testify to Parts of the Analysis Involving Declarants Who Did Not Testify.
B. Failure to Identify or Prove Operability of the Gas Chromatograph/Mass Detector and Failure to Prove the Reliability of Reference Standards Undermines Any Finding that the Identification of the Sample as Marijuana Here was Correct.
POINT VI
THE EVIDENCE FAILED TO ESTABLISH THAT THERE WAS DRUG PARAPHERNALIA OR THAT DEFENDANT KNOWINGLY POSSESSED DRUG PARAPHERNALIA.
II.
We reject defendant's arguments and affirm the drug paraphernalia conviction substantially for the reasons set forth by Judge Santiago in her comprehensive written opinion. We add only the following comments.
Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (citing State v. Johnson, 42 N.J. 146, 157 (1964)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).
Since the Law Division judge is not in a position to judge the credibility of witnesses, she should defer to the credibility findings of the municipal court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
As both judges noted in their respective opinions, the evidence supported the factual findings with regard to defendant's Miranda motion and motion to suppress certain items seized, as well as defendant's drug paraphernalia conviction. Moreover, the Law Division judge clearly understood that her role was to make independent findings; findings that, ultimately, were reflected in her written opinion.
We agree with the Law Division judge that neither defendant's statements nor certain items seized by the police should have been suppressed. Given that the only conviction before us on appeal is the drug paraphernalia conviction, the defendant's own statements provided sufficient credible evidence to prove, beyond a reasonable doubt, his guilt. Defendant stated he was sent to the second check point because he admitted he had been drinking alcohol. He also admitted to smoking marijuana a few hours earlier, although the record is unclear whether he was in his car or in the parking lot outside of his car. Finally, there was sufficient credible evidence that defendant used, or possessed with intent to use, the rolling papers and rolling device, and that they are drug paraphernalia. N.J.S.A. 2C:36-1.
After close examination of the record, we find insufficient merit in defendant's arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth in Judge Santiago's cogent and well-reasoned written opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 486, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).