January 31, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HENRY R. MAREK, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. 80-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges S. L. Reisner and Gilroy.
This is defendant's second appeal from his conviction of refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a.
On May 30, 2004, defendant was issued motor vehicle summonses in Linwood, charging him with violations of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a); refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2;*fn1 reckless driving, N.J.S.A. 39:4-96; and speeding, N.J.S.A. 39:4-98. After trial in the municipal court, defendant was found guilty of DWI and refusing to submit to a breathalyzer test. The remaining charges were dismissed. Defendant was sentenced as a third offender under the DWI statute and as a first offender under the refusal statute. On appeal to the Law Division, defendant was acquitted of DWI and found guilty of the refusal charge.
Because defendant had two prior convictions for DWI, the Law Division sentenced defendant as a third offender under the refusal statute. On appeal, we affirmed. State v. Marek, No. A-3285-04 (App. Div. March 9, 2006). On petition for certification, the Supreme Court reversed and summarily remanded the matter to the municipal court for a new trial, in light of the Court's then-recent decision of State v. Cummings, supra; State v. Marek, 187 N.J. 77 (2006).
On remand, defendant was again found guilty of refusal in the municipal court and sentenced as a third offender under the refusal statute to a revocation of his driving privileges for ten years, subject to a credit of one year and nine months for the period that defendant's driving privileges were suspended during the pendency of the first appeal; a $1,000 fine; and was directed to serve twenty-four hours at an approved Intoxicated Driver Resource Center. All other appropriate penalties and costs were also imposed. On appeal, the matter was tried de novo before Judge Neustadter on February 8, 2007. On February 14, 2007, the trial judge issued a six-page written opinion, determining defendant guilty beyond a reasonable doubt of refusing to submit to a breathalyzer test. He also imposed the same penalties as the municipal court; except, he credited defendant 765 days for the time period when he was suspended during the pendency of his first appeal.
In his opinion, Judge Neustadter stated in relevant part:
Defendant argues that he did not refuse to submit to a breathalyzer test. It is well established that anything other than an unequivocal "yes" to a request by an officer to submit to a breathalyzer test constitutes a refusal in violation of N.J.S.A. 39:4-50.2. State v. Widmaier, 157 N.J. 475 (1999). Even if a defendant verbally assents to the giving of the breath sample, his subsequent defiant attitude and conduct during the test can constitute refusal. State v. Geller, 348 N.J. Super. 359 (Law Div. 2001). Additionally, an initial refusal cannot be "cured" by a subsequent statement by a defendant that he will submit to a breath test. State v. Corrado, 184 N.J. Super. 561, 568 (App. Div. 198).
Here, although defendant verbally agreed to submit to a breathalyzer test, his conduct of feigning blowing into the machine twice was less than an unequivocal "yes" to a request to provide a breath sample and constituted a constructive refusal under State v. Geller. This constructive refusal cannot be cured by defendant's offer to take a third breath test after failing to give a sample on the first two. During his trial in Linwood City Municipal Court, defendant presented former New Jersey State Trooper Francis X. Tobey as an expert on the administration of the breathalyzer test. Mr. Tobey testified it was his opinion the breathalyzer test checklist was filled out incorrectly, and Sgt. Weber needlessly reset the machine before testing defendant a second time. He also testified that if Sgt. Weber failed to turn the knob on the breathalyzer machine to the "take" position before asking defendant to blow into the breathalyzer machine, no breath sample could enter the machine. The [c]court finds testimony of defendant's expert irrelevant because the manner in which the breathalyzer checklist was completed and the officer's act of resetting the machine have no bearing on the issue of whether defendant is guilty of refusal. The [c]court also finds sufficient credible evidence was elicited on the record below to find, and the [c]court does find beyond a reasonable doubt that Officer Weber did turn the knob to the proper "take" position before asking defendant to blow into the machine. Accordingly, the [c]court finds beyond a reasonable doubt that defendant constructively refused to submit to a breath test upon the request of Sgt. Weber.
A confirming order was entered on March 15, 2007.
On appeal, defendant argues:
THE STATE MUST PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT.
BECAUSE THE OFFICER WAS EITHER INCOMPETENT OR INCREDIBLE, AND BECAUSE DEFENDANT NEVER REFUSED TO SUBMIT BREATH SAMPLES, THIS COURT SHOULD FIND REASONABLE DOUBT AND ACQUIT HIM OF THE BREATH TEST REFUSAL CHARGE.
BECAUSE THE EVIDENCE ON WHICH THE OFFICER RELIED TO ARREST DEFENDANT WAS HIGHLY SUBJECTIVE AND ESSENTIALLY INCOMPETENT TO DETERMINE WHETHER DEFENDANT WAS UNDER THE INFLUENCE, THIS COURT SHOULD HOLD THAT THIS EVIDENCE WAS INSUFFICIENT TO ESTABLISH PROBABLE CAUSE AS AN ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT.
IF IT CONVICTS, THIS COURT SHOULD REDUCE DEFENDANT'S DRIVING PRIVILEGE REVOCATION FOR BREATH TEST REFUSAL FROM TEN YEARS TO SEVEN MONTHS BECAUSE, UNDER THE MOST RATIONAL READING OF THE STATUTES, THIS IS DEFENDANT'S FIRST CONVICTION FOR REFUSAL.
IF DEFENDANT IS NOT ACQUITTED, THIS COURT SHOULD VACATE HIS CONVICTION AND REMAND HIS CASE FOR A JURY TRIAL BECAUSE HE FACED SERIOUS QUASI-CRIMINAL AND CIVIL CONSEQUENCES AS A DIRECT RESULT OF THE MUNICIPAL COURT PROCEEDINGS.
An appellate court's scope of review of a trial court's determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.
We have considered defendant's arguments in light of the record and applicable law. We determine that all of the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Neustadter in his cogent, written opinion of February 14, 2007. Nevertheless, we add the following comments.
In Points IV and V, defendant argues that he should only have been sentenced as a first offender under the refusal statute, and that he was entitled to a jury trial on the refusal charge because of the serious quasi-criminal and civil consequences that flow from a conviction. We previously considered each of these arguments and rejected them in our first opinion. Marek, supra, slip. op. at 4-7.*fn2 We again reject the arguments for the same reasons previously stated.