Opinion
DOCKET NO. A-2598-10T1
02-21-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDWARD F. SYLVIA, JR., Defendant-Appellant.
Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Sandra Battista, on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.PER CURIAM
On appeal from Superior Court of New
Jersey, Law Division, Gloucester County,
Municipal Appeal No. A-18-10.
Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Sandra Battista, on the brief).
Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).
Judge Skillman was on the initial decision, but he is no longer on recall.
Following trial de novo on the record of the East Greenwich Township Municipal Court, the Law Division judge found defendant Edward F. Sylvia, Jr. guilty of driving while under the influence. N.J.S.A. 39:4-50. The judge sentenced defendant to two days in jail to be served at the Intoxicated Driver Resource Center, imposed a $500 fine, a $50 VCCB penalty, a $75 SNSF assessment, a $200 DWI surcharge and $33 for court costs, suspended his license for two years, and required installation of an ignition interlock device for one year.
Defendant's appeal was submitted to this court on January 17, 2012 and decided on February 21, 2012. After considering the record, including the testimony of defendant's expert witness, we affirmed substantially for the reasons stated by Judge Marshall in his written opinion of December 7, 2010 and his oral opinion of December 3, 2010. In so doing, we listed the arguments raised in defendant's brief, which were:
I. THE COURT ERRED WHEN IT DID NOT SUPPRESS APPELLANT'S BREATH RESULTS AS SIGNIFICANT QUESTIONS EXISTED SURROUNDING THE PROPER FUNCTIONING OF THE ALCOTEST MACHINE.
II. APPELLANT WAS DENIED AN OPPORTUNITY TO TEST THE RELIABILITY OF THE BREATH RESULTS DUE TO INCOMPLETE DATA SUPPLIED, THUS DENYING APPELLANT DUE PROCESS.
III. THE COURT ERRED IN CONVICTING APPELLANT BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT VIOLATED N.J.S.A. 39:4-50.
Seventeen days after this court's judgment was filed and without leave of court, defendant moved for reconsideration. Cf. R. 2:11-6(a) (providing that a motion for reconsideration to be filed "[w]ithin ten days after entry of judgment or order, unless such time is enlarged by court order"). The panel denied that motion on March 22, 2012.
In his motion for reconsideration, defendant urged us to address arguments raised in his "Sur-Reply Brief, which was submitted on August 29, 2011, and an Amended Sur-Reply Brief, which was accepted by Order of the Court filed on November 11, 2011."
Actually, defendant mischaracterizes his briefs; they were a reply and an amended reply brief. He also misstated the filing date of the amended brief; it was filed on December 8, 2011, by order of this court.
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In his reply and amended reply briefs, defendant argued:
IV. THIS COURT SHOULD NOT RELY ON THE LAW DIVISION'S DECISION DUE TO ITS FAILURE TO METICULOUSLY REVIEW THE RECORD BELOW.Generally, this court declines to address issues that are first raised in a reply brief. See In re Bell Atlantic-New Jersey, Inc., 342 N.J. Super. 439, 442-43 (App. Div. 2001) (adhering to that customary practice because the issue had insufficient public importance to warrant deviation). In this case, there was no manifest injustice or significant issue warranting deviation. We did not explain that in our initial opinion or our order denying reconsideration.
V. THE RESULTS OF APPELLANT'S BREATH TEST SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE FAILED TO PROVIDE COMPLETE DISCOVERY.
VI. THIS COURT MUST NOT CONSIDER COMMENTS IN [THE] STATE'S BRIEF WITH REGARD TO ITS CHARACTERIZATION OF APPELLANT AND ANY PENDING DWI CHARGES.
Following the denial of his motion for reconsideration, defendant filed a petition for certification. On October 12, 2012, the Supreme Court granted that petition, summarily remanded and directed the panel to address the arguments defendant raised in his reply and amended reply briefs. The Court did not retain jurisdiction. In compliance with the Supreme Court's mandate, we address the issues.
Defendant's argument in support of his claim that this court should not rely on the Law Division's decision because the judge did not "meticulously review the record" of the municipal court trial is premised on one sentence in the opinion. Judge Marshall stated that nine of the State's exhibits were admitted without objection. While that statement is not accurate, it was followed by the judge's discussion of the adequacy of the foundation for admission of the State's evidence and the inadequacy of the expert testimony the defense presented to undermine that foundation for admission of the Alcotest results. As noted above, we affirmed substantially for the reasons stated by Judge Marshall. The unarticulated basis for our affirmance was that the judge's factual findings and legal conclusions were supported by the record and controlling legal principles. In short, Point IV has insufficient merit to warrant further discussion in a written opinion.
Point V of the amended reply brief specifically refers to a discovery violation. Although Point I of his initial brief did not, the argument presented in support of Point I addressed deficiencies in the information the State provided. The deficiencies were: four of six data logs were missing; the computer printouts were "missing fields of critical information" — 256 of 310 fields were provided; the paperwork was not adequate to permit the defense expert from matching the serial number of the temperature probe to the new standard solution change made prior to defendant's test; there was no repair log; and there was a seventeen-day gap "between the fifth and sixth downloads" in the group of six for the period covering July 25, 2005 to May 20, 2009. In Point V of defendant's amended reply brief, defendant again relies on the State's failure to provide the dates of maintenance and repairs and 310 fields of data. In short, Point V states the issue in different terms but does not raise a new issue.
In Point VI defendant urged this court to disregard a portion of the State's brief characterizing him as "a 'practiced drunk,' who could 'make a good appearance, despite having a high bold alcohol content.'" Defendant's legal argument was that this was "reckless conjecture" unsupported by the record and that the State's reference to another pending DWI matter was "and highly prejudicial." Defendant's conviction rested solely on the Alcotest results, not on observations of his condition or behavior. Defendant did not contend that the State failed to establish probable cause for requesting him to submit to the Alcotest. Accordingly, the State's improper argument was immaterial, in no way pertinent to the panel's decision to affirm his conviction and not an argument that could or did sway this court.
Having addressed the issues raised in defendant's reply and amended reply briefs, we find no reason to modify the initial decision.
Affirmed.