Summary
In State v. Roselli, 109 Kan. 33, 198 P. 195, the question of joint defendants and separate trials was considered and it was said the statute gives the court control over the subject.
Summary of this case from State v. YurkOpinion
DOCKET NO. A-4856-11T3
04-23-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GARY M. ROSELLI, Defendant-Appellant.
Clifford J. Weininger, attorney for appellant. Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-007.
Clifford J. Weininger, attorney for appellant.
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from his de novo conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant argues that his conviction should be vacated because he did not operate his vehicle while intoxicated and his Sixth Amendment right to a speedy trial has been violated. We affirm.
This is defendant's fifth DWI conviction.
On July 29, 2011, Municipal Court Judge Brian O'Toole tried this matter. The State offered testimony from Officer Peter Hermans and Thomas Bruno. Defendant testified and called his mother as a witness. The primary disputed issue during the trial was whether defendant operated a vehicle in which he had been found in an intoxicated state. The following facts were adduced at trial.
On February 27, 2010, Bruno, someone who had known defendant for many years, observed a parked vehicle on the street near where Bruno's mother and defendant lived. Bruno walked to the vehicle, testified that he noticed defendant sleeping in the passenger seat slumped over, and knocked on the window. Defendant was awakened and then exited the vehicle. Bruno smelled an odor of alcohol, noticed an alcoholic beverage, and concluded that defendant was "under the influence."
Within a short period of time after Bruno's observations, Officer Hermans responded to a call from a nearby resident regarding an unresponsive motorist sitting in a parked vehicle. The officer arrived at the scene, approached the vehicle, smelled a "strong odor" of alcohol, and noticed defendant seated in the driver's seat with the keys in the ignition. He also noticed a six pack of Twisted Tea located on the passenger floor, and saw one open bottle "partially consumed" on the passenger seat. Officer Hermans observed that defendant's eyelids were "extremely droopy," his eyes were red, and his speech was slurred. After he failed to respond to the officer's inquiry regarding where he had been, the officer asked defendant to exit the vehicle. The officer conducted field sobriety tests, which defendant failed, and then arrested defendant and transported him to police headquarters.
Defendant testified that Twisted Tea is a "malt liquor. It's like a beer."
The State also charged defendant with driving while his license was suspended, N.J.S.A. 39:3-40; and consumption of alcohol in a motor vehicle, N.J.S.A. 39:4-51a. Defendant appeals only from his de novo DWI conviction.
At the station, defendant admitted that he had consumed ten beers that day at Billy and Madeline's Red Room (the "Red Room"). He explained that he had his first drink at 11:02 a.m. and finished drinking by 2:30 p.m. Defendant also stated that he lived approximately one-half mile away from where he was found. The officer administered an Alcotest, which resulted in a 0.25% reading.
Defendant's mother testified that she attended a basketball game that morning with defendant and then they departed from the game in separate vehicles at around 12:25 p.m. Defendant testified that he left the game at about 12:30 p.m. and then drove to a liquor store. He admitted purchasing a fifth of vodka and a six pack of Twisted Tea, driving his car to the scene, and then beginning to drink the alcohol at about 1:00 p.m. He stated that he walked around the neighborhood, consumed the vodka, and then discarded the bottle in a bush. He denied being at the Red Room, and testified that he told the officer he had been there only because he was "very intoxicated." He explained that when he referenced the Red Room to the officer, he was referring to a previous date when he had consumed alcohol, which led to his fourth DWI offense.
Judge O'Toole rendered an oral opinion at the end of the trial, found that Bruno and defendant's mother were not credible, concluded that the officer was "extremely credible," and stated that
[t]here is some inconsistency with respect to Mr. Bruno's testimony. . . . Mr. Bruno was reluctant to . . . say anything that might hurt [defendant]. . . . [I]t's inconceivable to me [how] the officer's observations at the scene, which must have occurred not more than [ten] minutes after . . . Mr. Bruno's, could be that inconsistent and that different [than the testimony from the other witnesses]. I had to drag out [from Mr. Bruno] the fact that . . . he smelled alcohol on [defendant] and that [defendant] might have, in fact, had some degree of intoxication . . . . [Mr.
Bruno's] testimony[,] and the testimony of [defendant's mother] . . . are not, in my judgment, substantial and credible. . . . I find that [Officer Hermans's] testimony was extremely credible and . . . totally consistent. There's nothing inconsistent about anything [the officer] told us, whereas with respect to the theory that the liquor was purchased and drank in the car or partially out of the car while [defendant] was walking around, . . . is to me, absolutely and totally incredible, and not worthy of belief.
The judge then found defendant guilty of DWI, imposed a ten-year driver's license suspension, and sentenced him to 180 days in jail. Defendant appealed his DWI conviction to the Law Division, which stayed his jail sentence pending the appeal, contending that there was insufficient evidence to convict him, and he argued, for the first time, that his right to a speedy trial had been violated.
Defendant entered guilty pleas to driving while suspended, N.J.S.A. 39:3-40 (Summons 29476), and consumption of an alcoholic beverage by an operator or passenger of a vehicle, N.J.S.A. 39:4-51a (Summons 29472). As to Summons 29476, the judge imposed a six-month driver's license suspended term with an additional two and a half years as an enhanced penalty for already having been suspended for alcohol-related reasons; a forty-five day jail term; and the appropriate fines and penalties. As to Summons 29472, the judge imposed the appropriate fines and penalties. As to the DWI, the judge imposed a forty-eight hour requirement in the Intoxicated Driver's Resource Center (IDRC); a two-year interlock requirement; the appropriate fines and penalties; and a thirty-one day credit to Turning Point (a drug rehabilitation center) and a thirty-two day jail credit.
On May 7, 2012, Judge Thomas V. Manahan conducted a trial de novo. On May 30, 2012, the judge rendered a fifteen-page written decision which deferred to Judge O'Toole's credibility findings, found defendant guilty of the DWI charge, and rejected defendant's speedy trial assertion. The judge then suspended defendant's license for ten years and sentenced him to 180 days in jail. Judge Manahan credited defendant thirty-one days for time served in Turning Point and thirty-two days for time served in the county jail. He granted bail pending appeal. This appeal followed.
The judge also imposed a forty-eight hour requirement in the IDRC; a two-year interlock requirement; and the appropriate fines and penalties.
On appeal, defendant raises the following points:
POINT I
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT OPERATED HIS CAR IN VIOLATION OF N.J.S.A. 39:4-50.
POINT II
DEFENDANT'S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL WAS VIOLATED IN THIS CASE WHERE HE WAITED 513 DAYS FROM THE DAY OF HIS ARREST TO THE DAY OF TRIAL IN VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL, A FAIR TRIAL AND DUE PROCESS (U.S. Const. amends. V, VI, XIV; N.J. Const. art. I, ¶¶ 1, 9, 10).
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 Law Division judge's conclusions "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Our review of the law is de novo. Id. at 158-59; Adubato, supra, 420 N.J. Super. at 176.
We affirm substantially for the reasons that Judge Manahan expressed in his thoroughly written opinion. We add the following comments.
I.
There is sufficient circumstantial evidence in the record to demonstrate beyond a reasonable doubt that defendant operated the vehicle while intoxicated. Proving operation of a car may be done by direct or circumstantial evidence so long as that evidence is competent and meets the standards of proof. State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). As we noted in State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005), N.J.S.A. 39:4-50, the drunk driving statute, applies to "a person who operates a motor vehicle while under the influence of intoxicating liquor." We further held in that case:
"Operation" may be proved by actual observation of the defendant driving while intoxicated, by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, or by defendant's admission, State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant's conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 506 (1981); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974) (affirming defendant's conviction based on his admission to drinking and driving when the police woke him up in his parked car on Interstate 287); State v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960) (affirming defendant's conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found "buried full length in some shrubbery and lilac bushes[]").
[Id. at 10-11 (citations omitted).]
Here, defendant had been parked in his vehicle; the officer arrived at the scene and noticed defendant seated in the driver's seat with the keys in the ignition; the officer smelled a "strong odor" of alcohol; he observed a six pack of Twisted Tea and one open "partially consumed" bottle of alcohol; defendant's eyelids were "extremely droopy," his eyes were red, and his speech slurred; defendant lived one-half mile away from the scene; there was no one else in the vehicle; defendant failed the field sobriety tests; and defendant admitted that he drank ten beers that day. We are therefore satisfied that the record contains sufficient credible circumstantial evidence that defendant operated his vehicle while intoxicated and is guilty of DWI beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162.
II.
Next, we do not overturn a trial court's finding that defendant was denied the right to a speedy trial unless it is "clearly erroneous." State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977); State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009). This standard is highly deferential to the trier of fact. In other words, we will only reverse the decision below if it is shown to be so erroneous that no reasonable analysis could have produced it. 40 New Jersey Practice, Appellate Practice and Procedure § 4.5 (Edward A. Zunz, Jr. & Edward F. Chociey, Jr.) (rev. 2d ed. 2011).
A defendant has a constitutional right to a speedy trial. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972), the United States Supreme Court indicated that a court must evaluate the following four factors to determine whether a defendant's right to a speedy trial has been violated: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." In State v. Cahill, ___ N.J. ___, ___ (2013) (slip op. at 21, 22), the New Jersey Supreme Court "reaffirm[ed] our adherence to the four-factor Barker analysis," and "declin[ed] to adopt a rigid bright-line try-or-dismiss rule." Our Court stated that "none of the Barker factors is determinative," and that "[a]ll factors are related, thereby requiring a balancing of all applicable factors while recognizing the fundamental right bestowed on a defendant to a speedy trial." Id. at 16. Here, we reject defendant's contention that the totality of these factors weighs in his favor.
The first inquiry focuses on the length of delay between the date of arrest, February 27, 2010, and the July 29, 2011 trial in municipal court. Although this period of seventeen months triggers consideration of the other Barker factors, it is not dispositive, in and of itself, of defendant's speedy trial argument. Ibid. The inquiry is whether this period of time "is reasonable or whether it violated defendant's right to a speedy trial." Id. at 25.
The second factor focuses on the reason for the delay. This factor weighs heavily against defendant. "Once a defendant asserts a violation of his right to a speedy trial, the government is required to identify the reason for the delay." Id. at 15 (citing Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). Here, the State has met this requirement. Defendant requested several adjournments due to his in-patient alcohol treatment and incarcerations for previous DWI convictions. The court must evaluate whether the postponements "were 'reasonably explained and justified.'" Id. at 450 (quoting State v. Detrick, 192 N.J. Super. 424, 426 (App. Div. 1983)). A "[d]elay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation." State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999). We conclude that the postponements of the trial dates, at defendant's behest, were "explained and justified." Ibid.
On July 26, 2010, five months after the arrest, defense counsel appeared in municipal court without defendant and requested an adjournment of the first trial date. Defense counsel acknowledged that "[counsel] have come back a couple of times on this case," stated to the judge that he had the discovery and "could have resolved" the case that night, but he remarked candidly that defendant had "a significant drinking problem" and that defendant was in St. Clare's seeking in-patient detoxification treatment for his alcohol addiction. Counsel explained that defendant had received four months of detoxification starting in March 2010, was released "two weeks ago," and then the police found him "highly intoxicated." The judge granted defendant's adjournment request and re-listed the trial for August 27, 2010, but defendant was not available on that date because he was incarcerated in a jail in a different county, Warren County, serving time on his fourth DWI conviction. Defense counsel returned to municipal court in October 2010, but defendant was still incarcerated in Warren County. Defense counsel stated that he thought defendant would have been released from jail sooner, but that defendant had not received certain "in-patient rehab credits." The judge then re-listed the trial date, without objection, for February 18, 2011.
The third factor requires us to consider defendant's assertion of his right to a speedy trial. Here, it is not clear that defendant asserted his right to a speedy trial. We acknowledge that "[a] defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial." Cahill, supra, slip op. at 15. "Nevertheless, '[w]hether and how a defendant asserts his right is closely related' to the length of the delay, the reason for the delay, and any prejudice suffered by the defendant." Id. at 15-16 (quoting Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). In analyzing this factor, Judge Manahan stated that
[d]efense counsel submits that the [d]efendant's letter requesting transportation to the Hanover Municipal Court for the October 4, 2010 trial date should be held to serve as his assertion for a speedy trial. However, this letter was not submitted to the [c]ourt. A review of the record indicates that it was referenced at the [municipal] trial[,] but there was no discussion of it as an assertion of his [speedy] trial right, but rather toward the possibility of a sentence on this charge to run concurrently to his Warren County sentence. It is clear from the record that the [d]efendant was not seeking to assert his right to a speedy trial.Defense counsel stated at the October 4, 2010 municipal court appearance that he expected defendant would be released "sooner[] but [defendant] . . . didn't get [his] in-patient rehab credits." Judge O'Toole suggested that the matter be adjourned for a month to "get [defendant] down [to the Hanover Township Municipal Court]," but learned that defendant was jailed in Warren County and therefore could not be transported. Judge O'Toole then asked defense counsel to "advise us [when defendant is released from Warren County jail] and we'll immediately put it on our calendar." In the meantime, the judge selected a February 2011 date. We agree with Judge Manahan that defendant did not assert his right to a speedy trial.
The letter was not submitted to Judge Manahan and was not produced on appeal.
The final factor is prejudice. Our Court has declined to "fix a date certain after which prejudice is presumed" and prefers instead to evaluate each claim on a case-by-case basis. Cahill, supra, slip op. at 19. "Prejudice, of course, should be assessed in the light of the interests of defendants[,] which the speedy trial right was designed to protect." Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. The Court in Barker identified three such interests:
(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown."[P]rejudice can be found from a variety of factors[,] including 'employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like.'" Farrell, supra, 320 N.J. Super. at 446 (quoting State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976)).
[Ibid. (footnote omitted).]
The Court in Barker, supra, held that the defendant's "prejudice was minimal," despite "living for over four years under a cloud of suspicion and anxiety," and having spent "[ten] months in jail before trial." 407 U.S. at 534, 92 S. Ct. at 2194, 33 L. Ed. 2d at 119. In State v. Prickett, 240 N.J. Super. 139, 143-44 (App. Div. 1990), the court held that the defendant did not make a showing of prejudice beyond simply his loss of money and time derived from the one postponed trial date. The court in Farrell, supra, 320 N.J. Super. at 428, 450, 452, arrived at the opposite conclusion based on the expenses and other "inconveniences" attendant to the seven out of twelve State-caused postponements spanning 663 days in total. Similarly, the court in Tsetsekas, supra, 411 N.J. Super. at 14, found that the defendant suffered prejudice because of the "repeated delays and unnecessary appearances due to the State's ill-preparedness." Cf. State v. Fulford, 349 N.J. Super. 183, 195 (App. Div. 2002) (stating that defendant "should have been grateful to remain driving throughout th[e] entire period" of delay).
Here, defendant did not suffer prejudice in the form of a reduced ability to defend on the merits, the "most serious" form of prejudice as articulated in Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. Moreover, defendant did not testify that he incurred excessive costs due to any delays or suffered from any type of humiliation, anxiety, loss of employment, or inability to perform his normal daily activities. Rather, he contends on appeal that the delay "robb[ed] him of a sentencing issue," his life was "on hold," and he was unable to find employment. While awaiting trial on his fifth DWI charge, defendant's license was already suspended from his fourth DWI conviction. Likewise, his incarceration pending trial was related to his fourth DWI conviction, not the present charges.
Defendant argues that because he was deprived of his right to a speedy trial, he was denied an opportunity to argue that his sentence in the present matter should have run concurrently with his fourth DWI's sentencing.
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On balance, after considering all of the Barker factors, we agree with Judge Manahan that defendant's speedy trial rights were not violated. After considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION