Opinion
DOCKET NO. A-3432-14T2
05-10-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRZEJ KALINSKI, Defendant-Appellant.
Arthur P. Zucker argued the cause for appellant (Ferro Labella & Zucker L.L.C., attorneys; Mr. Zucker, on the brief). Kirah M. Addes, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Ms. Addes, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 6033. Arthur P. Zucker argued the cause for appellant (Ferro Labella & Zucker L.L.C., attorneys; Mr. Zucker, on the brief). Kirah M. Addes, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Ms. Addes, on the brief). PER CURIAM
Defendant Andrzej Kalinski appeals from a February 19, 2015 Law Division order entered after a de novo hearing on a municipal appeal denying his motion to correct court records under Rule 1:13-1. The court denied defendant's request to correct the records of his April 9, 1996 conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, to reflect a conviction for refusal to submit to chemical tests (Refusal), N.J.S.A. 39:4-50.4a. We affirm.
I.
On May 30, 2014, defendant filed a motion under Rule 1:13-1 in the Passaic City Municipal Court requesting correction of an alleged clerical error related to his 1996 conviction in that court. Defendant claimed that in 1996 he was convicted of Refusal, but that the records erroneously reflect that he was convicted of DWI.
Defendant supported his motion with a May 28, 2014 certification in which he stated that on January 13, 1996, he was "involved in a motor vehicle stop in the City of Passaic" and that he "believe[d he] was charged with" DWI and Refusal. He further certified that "[o]n or about April 9, 1996, [he] appeared" before the Passaic City Municipal Court and he "believe[d]" he was convicted of Refusal and that the "DWI charge . . . was dismissed." Annexed to defendant's certification was a copy of the April 9, 1996 Intoxicated Driver Penalty Provisions Court Order (the 1996 Penalty Order) issued by the municipal court which defendant claimed "indicate[d] that the conviction was for a Refusal."
Defendant also certified that in 2003 he was convicted of DWI in the Bloomfield Municipal Court and sentenced as a first-time offender. Annexed to his certification is the Intoxicated Driver Penalty Provisions Court Order from the Bloomfield Municipal Court proceeding. The final exhibit to defendant's certification was a copy of his April 15, 2014 New Jersey Motor Vehicle Commission Abstract Of Driver History Record (Driver's Abstract).
Defendant certified that he had recently been charged with DWI in West Milford and that "when [his] driver's abstract was obtained" he discovered that his 1996 conviction was "one for driving while intoxicated." Defendant claimed that the records "incorrectly report[ed] that the 1996 conviction" was for DWI but that he "believed that [he] was convicted of" Refusal.
Defendant requested that the municipal court correct the record to reflect that he was convicted of Refusal in 1996. He also requested the correction of any reports to the New Jersey Motor Vehicle Commission to reflect he was convicted of Refusal in 1996.
On July 3, 2014, the Passaic City Municipal Court heard argument on defendant's motion and noted that its records revealed that defendant was issued one summons in 1996, and it charged defendant with DWI. The court provided defense counsel with copies of the 1996 summons and the 1996 Penalty Order, and adjourned the matter to permit counsel to confer with the attorney who represented defendant on the 1996 summons.
On October 16, 2014, the municipal court continued the hearing on defendant's motion. Defense counsel confirmed that he contacted the attorney who represented defendant in 1996 and that the attorney did not have any records related to the matter. The court confirmed that defendant's motion was founded upon the information contained in his May 28, 2014 certification and the annexed exhibits.
Defendant's counsel advised the court that neither the tape of the 1996 proceeding nor a transcript was available. In response to the court's inquiry, defendant's counsel indicated that his office had made an unsuccessful attempt to obtain police reports regarding the 1996 matter and was unsure if any such reports existed. --------
The municipal court judge found that the Driver's Abstract showed that on January 13, 1996, defendant was charged with DWI in Passaic City; on April 9, 1996, he was convicted of DWI; and there was no record he was charged or convicted of Refusal.
The municipal court judge further found that defendant's May 28, 2014 certification stated only that he "believe[d]" he was convicted of Refusal, and that the 1996 Penalty Order reflected that the penalties imposed were those required for a DWI conviction. The judge noted that defendant's sentence required the payment of the fines, penalties, and surcharges for a DWI conviction but not for a Refusal conviction, and that the fines, penalties, and surcharges had been handwritten on the DWI summons in 1996 by the court. The judge found there was no evidence that defendant had been issued a summons for a Refusal violation and that only one summons was issued to defendant, which charged defendant with DWI.
The municipal court judge rejected defendant's contention that a checkmark in the "Refusal Violation" box on the 1996 Penalty Order established that defendant was convicted of Refusal. The judge observed that the "DWI" box on the order was also checked and that all of the other available evidence showed that defendant was convicted of DWI. The municipal court denied defendant's motion and defendant appealed to the Law Division.
Defendant submitted a December 29, 2014 certification to the Law Division in which he claimed that his native language is Polish and that the form he signed in 1996 was not read or explained to him. He also changed the representations made in his certification to the municipal court. In his certification to the municipal court, defendant stated that he "believe[d]" he was convicted of Refusal and that the "DWI charge . . . was dismissed." In his December 29, 2014 certification, he stated affirmatively that he was convicted of Refusal.
On February 19, 2015, the Law Division conducted a de novo hearing on defendant's motion. The court found that the 1996 Penalty Order contained a "checkmark in the refusal violation box" and also in the box for a DWI conviction. The court observed that there was no blood alcohol content listed on the 1996 Penalty Order, but noted that an admission by defendant of a blood alcohol content may not have been part of defendant's plea.
The Law Division judge found that the fines and penalties that were imposed in 1996 were consistent with those required for a first DWI conviction. The boxes on the 1996 Penalty Order, where the penalties for a Refusal conviction would have been listed, were blank. The 1996 Penalty Order did not show any fines, penalties, or surcharges associated with a Refusal conviction.
The court reviewed the 1996 summons and found that it charged defendant with DWI and that the judge in 1996 wrote on the summons the fines, penalties, and surcharges for a first DWI offense, matching those written by the court on the 1996 Penalty Order. The court also found that on "April 9, 1996, defendant signed the notice to defendants following [a conviction for DWI] advising him [of] the penalties for driving on the revoked list and future DWI convictions." The court noted that defendant was represented by counsel during the 1996 proceeding.
The court rejected defendant's contention that his 2003 conviction in Bloomfield for a first DWI violation demonstrated that his 1996 conviction was for Refusal. The court found that the Bloomfield court erred in 2003 by sentencing defendant as a first-time DWI offender because defendant's Driver's Abstract showed that he was charged with DWI in Passaic City on January 13, 1996, was convicted on April 9, 1996, and does not include any reference to a 1996 Refusal charge or conviction.
The court did not find any ambiguity in the Passaic City Municipal Court records permitting or requiring the correction of any clerical error under Rule 1:13-1. The court found that the checkmark in the Refusal Violation box on the 1996 Penalty Order did not create an ambiguity because the DWI box was also checked and all of the other evidence reflected that defendant was charged and convicted of DWI.
On February 19, 2015, the court entered an order denying defendant's motion to correct the alleged clerical error. This appeal followed.
On appeal, defendant argues:
POINT I:
The [c]ourt below erred in declining to correct the 1996 record of conviction: the
1996 Municipal Court Order contains ambiguities that must be resolved in favor of the Defendant.
II.
On an appeal taken from the Law Division's final decision, 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." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). This requires "'consideration of the proofs as a whole,' and not merely those offered by the defendant." State v. Kuropchak, 221 N.J. 368, 383 (2015) (quoting Johnson, supra, 42 N.J. at 162). Our review of the Law Division's legal determinations or conclusions based upon the facts is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also State v. Handy, 206 N.J. 39, 45 (2011) (stating "appellate review of legal determinations is plenary").
Defendant moved for a correction of the records under Rule 1:13-1, which provides that a court may correct "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission." Defendant argues that the Law Division erred because he recalls that he was convicted of Refusal in 1996, the records regarding his conviction are ambiguous, and the ambiguity should be resolved in his favor. We disagree.
Defendant relies upon State v. Williams, 29 N.J. Super. 309, 313 (App. Div. 1954), where we noted that ambiguities in criminal judgments of conviction should be resolved in a defendant's favor. Defendant contends that the 1996 Penalty Order is ambiguous because there is a checkmark in the box next to the words "Refusal Violation" and a checkmark in the box for a DWI conviction, and the ambiguity requires that he be granted relief under Rule 1:13-1. In Williams, however, the ambiguity in the defendant's judgment of conviction was not resolved simply by amending the judgment in the defendant's favor. Instead, we remanded the matter to the trial court for a hearing to resolve the ambiguity. Id. at 314-15.
Like the defendant in Williams, defendant here was afforded a hearing on the purported ambiguity in the 1996 Penalty Order. He filed his motion for relief under Rule 1:13-1 and received a hearing in the municipal court, followed by a de novo hearing in the Law Division, regarding the claimed ambiguity. He therefore received a "full hearing in the trial court" to resolve any ambiguity in the 1996 Penalty Order as required under our holding in Williams. Id. at 314.
Under the express terms of Rule 1:13-1, however, a prerequisite to relief is that there be an "error" in the records which arose from "oversight and omission." Defendant presented evidence and argued that the alleged ambiguity in the 1996 Penalty Order showed an error in the records regarding his conviction. The Law Division judge, however, rejected defendant's argument and found as a matter of fact that defendant was convicted of DWI in 1996, and not Refusal. We therefore review the record to determine if the court's finding is supported by "sufficient credible evidence." Clarksburg Inn, supra, 375 N.J. Super. at 639.
As noted by the Law Division judge, the 1996 summons was located, and it showed that defendant was charged with DWI. The 1996 summons included the municipal court judge's handwritten notations of the fines, penalties, and surcharges that were imposed, and they were consistent with those required for a first DWI conviction. The 1996 Penalty Order shows the imposition of the same fines, penalties, and surcharges, which were handwritten on the section of the order designated for a DWI conviction. Notably, the boxes on the 1996 Penalty Order designated for the placement of the fines, penalties, and surcharges for a Refusal conviction are blank.
The evidence before the court also included a document providing notice of the penalties for subsequent DWI convictions, which was signed by defendant and the municipal judge in 1996. In addition, defendant's Driver's Abstract does not reflect that he was charged or convicted of Refusal in 1996, but instead shows that he was charged and convicted of DWI.
We are therefore convinced that there was sufficient credible evidence supporting the court's finding that defendant was convicted of DWI in 1996, and are not persuaded by defendant's contention that the checkmark in the box next to the phrase "Refusal Violation" on the 1996 Penalty Order requires the conclusion that defendant was convicted of Refusal. We are similarly not satisfied that defendant's equivocal and changing recollections about the 1996 proceedings undermine the court's findings. The court considered defendant's arguments and evidence, and concluded they did not support a finding that defendant was convicted of Refusal.
Defendant was properly denied relief under Rule 1:13-1 because there is sufficient credible evidence supporting the court's finding that defendant was convicted of DWI in the Passaic City Municipal Court. We are therefore satisfied that the court correctly concluded that there is no error in the Passaic City Municipal Court records relating to defendant's 1996 conviction requiring the correction sought by defendant under Rule 1:13-1.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION