Opinion
DOCKET NO. A-1125-12T2
07-17-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS SULKOWSKI, Defendant-Appellant.
Albert J. Resincio, attorney for appellant (Laura Orriols, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Mary E. Sparkman, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2011-28.
Albert J. Resincio, attorney for appellant (Laura Orriols, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Mary E. Sparkman, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After a trial de novo in the Law Division on appeal from his conviction in the Robbinsville Township municipal court, defendant Thomas Sulkowski was convicted of refusing to provide a breath sample, N.J.S.A. 39:4-50.2, -50.4a. Judge Mark J. Fleming suspended defendant's driver's license for a period of seven months and imposed appropriate fines and penalties. With the exception of the license suspension, Judge Fleming stayed imposition of sentence pending appeal. By order dated January 23, 2013, we denied defendant's motion for a stay of the suspension of his driver's license.
At the municipal court trial, much of the testimony focused on whether defendant had actually operated his vehicle while intoxicated, which the municipal court judge ultimately concluded the State had failed to prove beyond a reasonable doubt. The municipal court judge did, however, find defendant guilty of refusing to submit to a breath test. We therefore limit our consideration of the testimony adduced during the municipal court trial, and upon which Judge Fleming relied, to only that which is relevant to the conviction under appeal.
On the evening of March 30, 2010, at approximately 10:05 p.m., Officer Eric Bakay of the Robbinsville Township Police Department was on patrol checking local residences and businesses for suspicious activities or people. Bakay pulled into the parking lot of the Lamp & Shade Studios (the Lamp and Shade), which is located behind the business and not visible from Route 130 North, upon which the store fronts. Bakay observed a red pickup truck parked across four parking spaces in the lot, with vomit on its door and on the pavement. Defendant was slouched over the steering wheel.
Bakay knocked on the driver's side window several times before defendant awoke and lowered the window. To do so, defendant needed to turn on the ignition, which he did using a key that was already in the switch. Defendant had vomit on his shirt, and Bakay smelled alcohol. Defendant was confused and told Bakay he was resting. He admitted to having had "a few" alcoholic beverages.
Other police officers arrived, and Bakay administered field sobriety tests to defendant. After failing these tests, Bakay arrested defendant for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and transported him to headquarters. Defendant was advised of his Miranda rights. When the standard form regarding the securing of breath samples was read to defendant (Standard Statement), he requested an attorney. When the additional paragraph on the Standard Statement that advised defendant he was not entitled to an attorney was read, defendant repeated that he wished to speak to an attorney.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
During cross-examination, Bakay admitted that he neither saw defendant operate nor attempt to operate his vehicle. He also acknowledged that defendant stated he had not driven the car. Defendant provided Bakay with the name of an individual, Eric Houghton, who had driven him to the parking lot and left him in the truck where defendant intended to sleep overnight. It was Houghton who eventually came to pick up defendant at police headquarters when he was released, but Bakay acknowledged that he did not question Houghton as to whether he drove defendant to the parking lot and left him in his car.
The gist of testimony from several defense witnesses was that defendant did not drive to the Lamp and Shade parking lot, but rather Houghton drove him there to sleep for the night, and that defendant's truck was in the same position where Houghton had parked it. Defendant testified in similar fashion.
Defendant also stated that because police first read him his Miranda rights and then read the Standard Statement regarding the breath sample, he was confused and believed he could speak to an attorney before providing a breath sample. Defendant acknowledged, however, that he never asked Bakay to clarify his confusion. Defendant also stated that he did agree to provide a sample, but Bakay told him it was too late.
Judge Fleming found the following facts as they related to defendant's conduct after his arrest:
[W]hen he was arrested . . . defendant was given his Miranda rights. Upon arrival atCiting State v. Marquez, 202 N.J. 485 (2010), Judge Fleming reviewed the testimony in relation to the "four essential elements" of the offense:
Robbinsville Police Station, . . . defendant was read the eleven paragraphs of the . . . Standard Statement . . . . This informed . . . defendant that he was required to give breath samples, that his right to remain silent or have an attorney present does not apply to giving the breath samples, and that refusal can lead to suspension of license and other penalties. After being read the form, . . . defendant requested to speak to an attorney. . . . [D]efendant was then read an additional paragraph, reiterating that the right[s] to remain silent and have an attorney present do not apply to the collection of breath samples. Further, the refusal to submit would result in a separate summons. . . . [D]efendant still responded that he wished to speak to an attorney.
(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.He concluded that Bakay had probable cause to arrest defendant for DWI because his truck "was parked across several parking spots[,]" there was vomit on the ground and on the vehicle's door, defendant was in the driver's seat slumped over the steering wheel, and defendant admitted he had been drinking and was unable to perform the field sobriety tests. Judge Fleming also concluded that defendant was in fact arrested for DWI, was requested to supply a breath sample and was informed of the consequences if he refused.
[Id. at 503 (citations omitted).]
As to the last element of the offense, Judge Fleming quoted the Court's decision in State v. Widmaier, 157 N.J. 475 (1999): "'anything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the breathalyzer test constitutes a refusal to do so.'" Id. at 497 (quoting State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div. 1991)). Again quoting Widmaier, Judge Fleming wrote that, "'[o]nce the defendant says anything except an unequivocal "yes" to the officer's request after the officer has informed the defendant of the consequences of refusal, the defendant cannot legally cure the refusal.'" Id. at 488 (alteration in original) (quoting Bernhardt, supra, 245 N.J. Super. at 219).
Regarding defendant's argument that he was confused by the reading of his Miranda rights, which informed him of his right to an attorney, prior to the reading of the Standard Statement, Judge Fleming quoted Marquez, supra, 202 N.J. at 513: "it is not necessary for the State to prove that a driver actually understood the warnings on a subjective level." Judge Fleming determined that defendant was in fact not confused, and "although . . . defendant offered to take the test, it was too late. He cannot legally cure his refusal." As noted, Judge Fleming found defendant guilty and imposed the sentence referenced above.
Defendant now raises the following points for our consideration:
POINT I: THE LAW DIVISION ERRED IN ITS DETERMINATION OF THE STANDARD OF REVIEW AND THIS COURT MUST NOW MAKE ITS OWN FINDINGS OF FACT AS IN A TRIAL DE NOVO.We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Fleming in his thorough written opinion.
POINT II: THE STATE FAILED TO SUBMIT A SINGLE PIECE OF EVIDENCE TO SUPPORT PROBABLE CAUSE FOR . . . DEFENDANT'S ARREST.
POINT III: [] DEFENDANT DID NOT REFUSE THE BREATHALYZER TEST; HE MOMENTARILY DELAYED HIS CONSENT.
POINT IV: THIS COURT MUST NOT EXPAND UPON LEGISLATIVE INTENT BY MISINTERPRETING N.J.S.[A.] 39:4-50.2 AS A STRICT LIABILITY CRIME.
POINT V: THE POLICE FAILED TO ADMINISTER THE ALCOTEST AND THEREIN FRUSTRATED LEGISLATIVE INTENT, VIOLATED PUBLIC POLICY, AND VIOLATED . . . DEFENDANT'S CONSTITUTIONAL DUE PROCESS PROTECTIONS.
POINT VI: THIS COURT SHOULD STAY ITS RULIING ON THIS CASE UNTIL THE O'DRISCOLL CASE IS RESOLVED BY THE SUPREME COURT REGARDING THE SHORTCOMINGS OF THE STANDARD STATEMENT.
We have omitted the sub-points contained in defendant's brief.
--------
In reviewing de novo trials in the Law Division of municipal court appeals, "we . . . consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). We determine only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Our deference to the trial court's fact finding
is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. 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 (citation omitted).]
Defendant first argues that Judge Fleming did not fully review the record below because, like the municipal court judge, he misstated a snippet of Bakay's testimony. Bakay testified that he read the Standard Statement to defendant during the required observation period before the Breathalyzer could be administered. However, Judge Fleming stated that defendant was observed for twenty minutes before the Standard Statement was read.
Defendant contends this demonstrates a failure to conduct a de novo review on the record. Defendant also argues that he was denied a fair trial because when he asked for an attorney, the twenty minute period had not elapsed and hence his refusal took place before the test could have properly been administered.
These arguments lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). The minor error in recounting the actual testimony given by Bakay does not impugn Judge Fleming's otherwise careful review of the record. Moreover, as we explain below, the timing of defendant's refusal in relation to the twenty-minute observation period is irrelevant.
We reject defendant's argument that Bakay lacked probable cause to arrest him for DWI. "[P]robable cause is more than a mere suspicion of guilt, [but] less than the evidence necessary to convict a defendant of a crime in a court of law." State v. Basil, 202 N.J. 570, 585 (2010). The determination as to whether or not probable cause exists must be made only after considering the totality of the circumstances. State v. O'Neal, 190 N.J. 601, 612 (2007). We agree completely with Judge Fleming's conclusion that, based on the totality of circumstances, police had probable cause to arrest defendant for DWI.
Additionally, defendant incorrectly asserts that the State needed to prove beyond a reasonable doubt that he had operated the vehicle in order to sustain a conviction for refusal. See State v. Wright, 107 N.J. 488, 494 (1987) (reinstating the defendant's conviction for refusal despite acquittal of DWI because "the Legislature did not intend to require proof of actual operation of a motor vehicle for conviction under the refusal statute").
Defendant next contends that his request to speak to an attorney was not tantamount to a refusal. He relies upon on State v. Leavitt, 107 N.J. 534 (1987), for the proposition that the Court has "recognize[d] confusion as a valid and legal defense to the failure to give breath samples."
Initially, Judge Fleming comprehensively reviewed controlling precedent. In his written opinion, he noted that "the Supreme Court in [Leavitt] never actually resolved the issue of whether a defendant may validly assert confusion as a defense in any circumstances." See State v. Sherwin, 236 N.J. Super. 510, 517 (App. Div. 1989) (noting that the Court "found it unnecessary . . . to resolve the issue of whether a defendant may validly assert confusion as a defense" (citing Leavitt, supra, 107 N.J. at 542)). More importantly, the municipal court judge and Judge Fleming concluded that defendant was not confused when presented with the Standard Statement. We defer to their conclusions that were based in large part upon credibility determinations. Locurto, supra, 157 N.J. at 474.
In Point IV, defendant argues the public policy behind the refusal statute is to encourage drivers to take the Breathalyzer test, and police in this case frustrated those efforts by failing to take defendant's breath sample when he finally consented, and by failing to investigate whether he actually drove the car by speaking to Houghton when he came to headquarters to drive defendant home.
In Bernhardt, supra, Justice Coleman, then Judge Coleman, wrote that "a bright line rule should be adopted, consistent with a growing majority of other jurisdictions with a similar implied consent law, which precludes a defendant from curing a refusal." 245 N.J. Super. at 217. We specifically found that "[s]uch a rule clearly effectuates the Legislature's regulatory aims embodied by the implied consent law." Ibid. The facts in Bernhardt were analogous to those presented by this case, and we find no principled reason to change course from our prior decision.
Defendant's due process argument warrants little discussion. R. 2:11-3(e)(2). There is nothing in the record to suggest that police officers frustrated defendant's attempt to comply, or that reading the Standard Statement during the twenty minute observation period denied defendant the opportunity to consent to the taking of his breath sample. Had defendant consented when asked, police presumably would have waited the requisite period of time and administered the test. The timing of their request did not subvert the public policy of the implied consent statutes. For reasons already stated, police had probable cause to arrest defendant for DWI, and any after-the-fact questioning of Houghton hours later would have been irrelevant to defendant's conviction for refusal.
Finally, since the briefs were filed in this appeal, the Supreme Court decided State v. O'Driscoll, 215 N.J. 461 (2013). In that case, the defendant claimed that discrepancies between the Standard Statement and recent amendments increasing the penalties for violation of the implied consent statutes meant that the State had failed to inform him of the consequences of his refusal. Id. at 465-66. The Court ultimately concluded that "the errors . . . were not material and could not have reasonably affected [the] defendant's choice to refuse to provide a breath sample[.]" Id. at 466. The facts of O'Driscoll have no particular relevance to those presented here, and nothing in the Court's decision compels reversal of defendant's conviction in this case.
Affirmed. The stay of defendant's sentence pending appeal is vacated. The matter is remanded to the Law Division for imposition of the balance of defendant's sentence forthwith. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION