Decided: December 5, 1985.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
DONALD J. FAVOCCIA, DEFENDANT-APPELLANT
On appeal from the Superior Court, Law Division, Bergen County.
Michels and Stern.
[206 NJSuper Page 335]
Defendant was found guilty in the Wycoff Municipal Court of driving a motor vehicle while under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50. He was fined $250, his license was revoked for six months, he was required to participate in an alcohol rehabilitation program and he was surcharged $100. Defendant appealed to the Law Division where, following a trial de novo on the record, he was again found guilty and the same sentence was imposed.
Defendant now contends that his conviction should be reversed because (1) "the video tape of the defendant constituted inadmissible evidence"; (2) "the testimony of Sgt. Vilbert was evasive, contradictory and untruthful, and, as such, raises doubt as to defendant's guilt and whether there were reasonable grounds to stop defendant" and (3) "in failing to establish the validity of and to interpret the evidence introduced, the State failed to meet its burden of proving the offense beyond a reasonable doubt."
We do not have to decide whether Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) bars admissibility of the defendant's statements following his arrest. It is true, as the State argues, that State v. Adams, 200 N.J. Super. 385 (App.Div.1985) held that Berkemer was not retroactive and did not apply to a case pending direct review in this court on the date Berkemer was decided.
While Adams is correct in noting that the United States Supreme Court held that Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), a post Miranda decision, was not "retroactive" see Solem v. Stumes, 465 U.S. 638, 104 S. Ct. 1338, 79 L. Ed. 2d 579 (1984), that Court subsequently held that Edwards applied to all cases pending direct appeal when it was decided. Shea v. Louisiana, 470 U.S. , 105 S. Ct. 1065, 84 L. Ed. 2d 38 (1985). Moreover, in Adams the trial de novo
[206 NJSuper Page 336]
was conducted before Berkemer was decided. Accordingly, we do not decide this appeal on the basis of retroactivity.*fn1
Our review of the transcript of the trial de novo convinces us that the Law Division did not consider defendant's words or any interrogation in reaching the conclusion that defendant was guilty. While the court apparently heard directions given to defendant, the court relied upon the recorded observations of what defendant did in response, cf. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), and concluded:
In viewing it all, there's no doubt in my mind, reviewing the videotapes, Mr. Favoccia's physical abilities were impaired as a result of the ingestion of alcohol, and that is really the standard we now apply. [Emphasis added]
Thus, the conviction rested on proofs independent of any inadmissible interrogation, and there was substantial evidence for the determination of guilt. State v. Johnson, 42 N.J. 146 (1964).