January 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREG ADAMCZYK, F/K/A GRZEGORZ ADAMCZYK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 4638.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges Lintner and Sabatino.
Defendant, Greg Adamczyk, appeals from Judge Subryan's order denying him relief on a de novo appeal of his motion to withdraw his plea in Clifton Municipal Court to driving while intoxicated (DWI), N.J.S.A. 39:4-50. On appeal, defendant raises the following points:
THE TERMS OF THE PLEA BARGAIN HAVING BEEN VIOLATED, [DEFENDANT'S] GUILTY PLEA SHOULD BE VACATED AND [DEFENDANT] MUST BE AFFORDED A TRIAL.
THE INEFFECTIVE ASSISTANCE OF COUNSEL RENDERED [DEFENDANT'S] GUILTY PLEA AN INVOLUNTARY ACT AND THEREBY CONSTITUTED THE DENIAL OF [DEFENDANT'S] RIGHT TO DUE PROCESS OF LAW.
THE COURT SHOULD HAVE CONDUCTED AN EVIDENTIAL HEARING, PURSUANT TO RULE 3:23-8, BECAUSE [DEFENDANT'S] CERTIFICATION PRESENTED A PRIMA FACIE CLAIM THAT THE INEFFECTIVE ASSISTANCE OF HIS COUNSEL DENIED HIM DUE PROCESS OF LAW.
We reject defendant's contentions and affirm substantially for the reasons expressed by Judge Subryan in his comprehensive written opinion of January 16, 2007.
On July 15, 2005, defendant was issued a summons for failure to observe a traffic signal, N.J.S.A. 39:4-81 and DWI, N.J.S.A. 39:4-50. On March 17, 2006, pursuant to a plea agreement, defendant pled guilty in Clifton Municipal Court to DWI and the summons charging failure to observe a traffic signal was dismissed. At the plea hearing, defendant admitted that he drank three half-liter beers, he consumed enough to register a reading of .11 on the two breathalyzer tests conducted following his arrest, and his capacity to drive the evening he was stopped was affected by the alcohol he consumed. He also acknowledged that his plea was voluntary and knowingly entered, and he was satisfied with the services of his counsel.
Prior to defendant being sentenced as a third-time offender, defense counsel represented that he was in the process of appealing an order entered on March 14, 2006, in Passaic Municipal Court denying a petition for post conviction relief (PCR) of defendant's first DWI conviction in December 1992, based upon the contention that the Municipal Court judge had not taken a factual basis when he entered defendant's guilty plea. Representing that defendant was without an attorney when he pled guilty to his first DWI offense, counsel moved under State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L.Ed. 2d 413 (1990), for a determination that defendant was not subject to an increased jail term as a third-time offender. The Municipal Court judge imposed 180 days of incarceration in the county jail, a ten-year license suspension, costs, and appropriate fines and penalties. Noting that defendant's Laurick application should be made to the Passaic Municipal Court, the judge stayed imposition of the jail term pending defendant's appeal of the denial of his PCR application, and his prospective Laurick challenge in Passaic Municipal Court.
In a written opinion on June 26, 2006, Judge Subryan denied defendant's de novo appeal, finding that he was not entitled to PCR from the 1992 Passaic Municipal Court conviction. Judge Subryan did not consider defendant's Laurick challenge, noting that defendant did not raise the issue before the Passaic Municipal Court. Defendant obtained new counsel and, on July 17, 2006, appealed Judge Subryan's order denying PCR. We granted defendant's motion for temporary remand to the Law Division to consider his challenge under Laurick. On remand, defendant withdrew his Laurick challenge after conceding that he had indeed been represented by counsel at his 1992 plea. On February 6, 2007, defendant voluntarily withdrew his July 17, 2006, appeal before us.
Meanwhile, defendant moved unsuccessfully before the Clifton Municipal Court to withdraw his March 17, 2006, plea. His jail sentence was imposed*fn1 and defendant filed a de novo appeal asserting that his plea should be vacated because the Clifton Municipal judge denied his Laurick application, thus violating his plea agreement, which indicated that defendant would be "entitled to make a Laurick application." He also claimed that he received ineffective assistance of counsel because counsel advised him that a Laurick hearing would be held and, Stanley Broskey, Ph.D., an acquaintance he made after his plea, told him that alcohol itself has no smell, that the smell comes from the additives that remains on one breath after the alcohol has dissipated, and his handling of painting chemicals for years could easily give a false reading on the breathalyzer. Finally, he contended that he was entitled to a plenary hearing because the Municipal Court judge was biased. On January 16, 2007, Judge Subryan issued his written opinion denying defendant's de novo appeal.
On appeal, defendant asserts that his plea bargain was violated because he was not afforded a Laurick hearing and, thus, his plea was not voluntarily entered with an understanding of the nature of its consequences as required by R. 7:6-2(a)(1).
In his written decision, Judge Subryan, noted that the record revealed that defendant voluntarily and knowingly, with full knowledge of the consequences, entered into the plea agreement. He found, contrary to defendant's assertion, that a successful Laurick challenge was not a condition of the plea but instead involved an issue arising at sentencing following the plea. The judge also found that the Municipal Court judge's stay of defendant's jail sentence afforded him the opportunity, as specified in the plea form, to challenge his first conviction under Laurick. He further noted that defendant's later withdrawal of that challenge, after conceding that he was represented by counsel in 1992, renders his contention moot.
We concur with Judge Subryan's findings. Simply stated, defendant was afforded his opportunity, in compliance with the plea agreement, to make an application under Laurick before the Municipal Court determined the jail term to be imposed. Thus, he received the benefit of his bargain and, consequently, effective assistance of counsel.
Defendant next asserts, for the first time on appeal, that he pled guilty because his counsel "did not advise him that he would probably lose his municipal appeal of the denial of his attempt to vacate the [1992 DWI] conviction." "Normally, we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ." Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). We decline consideration of defendant's contention. Moreover, defendant's voluntary withdrawal of his appeal of the de novo denial of his PCR application in the Passaic Municipal Court renders his contention moot.
Defendant next asserts, also for the first time on appeal, that counsel was ineffective for not attempting to find out what caused abnormal results in the breathalyzer machine, thus depriving defendant of "a plausible defense." Defendant relies on the "Remarks" section of the June 8, 2005, New Jersey State Police Breath Testing Instrument Inspection Certificate, noting that complaints had been received concerning abnormal results from the breathalyzer. However, that same report noted that the six tests performed were within acceptable limits and the "[i]nspection revealed the instrument to be in proper working order." Here, the relevant test results found that the machine was indeed working satisfactorily. There is nothing to indicate, other than defendant's conclusory statements, that complaints of abnormal results were actually verified or that counsel's failure to investigate would have caused a different result. Accordingly, we will not consider it. Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983).
Defendant finally asserts that he received ineffective assistance of counsel because his "breathalyzer readings were likely rendered unreliable due to [his] long term and recent handling of chemicals" and, thus, he should have been afforded an evidentiary hearing. Judge Subryan correctly found that the information received by defendant from an acquaintance could not result in ineffective assistance of counsel because the alleged information was received by defendant after he had pled and thus was not available to counsel at the time of the plea.
Additionally, we note that defendant did not provide a certification from any expert as to the effects his alleged chemical exposure would have had on the breathalyzer test results. Instead, he relies on his own certification, which incorporated incompetent hearsay information from an alleged acquaintance. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring certifications or affidavits with specific facts from the witnesses relied upon), certif. denied, 162 N.J. 199 (1999). Where a "defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). On the record before us, we are satisfied that defendant's application, based upon unsubstantiated hearsay allegations was devoid of factual assertions establishing a prima facie case warranting an evidentiary hearing.