On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 02-13-05 (A-2792-05T2), and Hudson County, Municipal Appeal No. 05-28 (A-4144-05T2).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Sapp-Peterson.
These two municipal appeals originating in different counties are consolidated for purposes of this opinion only. Defendant appeals from his drunk-driving related convictions arising out of two incidents. Defendant claims various constitutional and procedural challenges to the convictions. We reject defendant's arguments and affirm the convictions and sentences imposed.
The factual and lengthy procedural histories of these two cases need not be recounted here at length, as they are outlined in detail in the comprehensive oral opinions issued by Judge Harry G. Carroll on December 16, 2005, and Judge Camille M. Kenny on March 17, 2006. We need only recount the portions of those histories that are relevant to our present disposition.
I. The Guttenberg Arrest and Charges
According to the proofs presented at trial, at around 11:30 p.m. on May 20, 2002, Guttenberg Police Officer Juan Barrera (Barrera) was driving in a marked patrol car in the area of the Galaxy Hill complex located near Lydia Drive and River Road in Guttenberg when his patrol car was nearly struck by a Porsche driven by defendant. Barrera, who had received training in estimating vehicle speeds, estimated the Porsche was traveling approximately eighty miles per hour (MPH) in a twenty-five MPH zone.
Barrera immediately activated his lights and attempted to catch up to the speeding Porsche, but defendant was driving at a high rate of speed, making it difficult for Barrera to safely keep up with him. Barrera saw defendant turn into an apartment complex where he pulled into a parking space and shut off the Porsche's lights. As Barrera turned into the parking area, he saw the door of the Porsche open and defendant "almost fell out of the car."
Barrera approached defendant, immediately detecting a strong odor of alcoholic beverage. Defendant was swaying and staggering and Barrera had to assist him in standing upright. Barrera led defendant to the rear of the patrol car and attempted to administer two field sobriety tests. Barrera asked defendant to recite the alphabet, but defendant's speech was "very scrambled," defendant was sluggish and uncooperative, and he was unable to comply with Barrera's request. Barrera also asked defendant to stand on one foot, but defendant was unable to do so.
At this point, Barrera placed defendant under arrest and read him his Miranda*fn1 rights. Upon returning to the police station, a breathalyzer test was administered by Officer Raphael Martinez (Martinez), a certified breathalyzer machine operator. Martinez administered two separate breath tests and obtained a blood alcohol content (BAC) reading of .14 percent each time. Defendant was cited for driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; and speeding, N.J.S.A. 39:4-98, specifically, traveling eighty MPH in a twenty-five MPH zone.
After the charges were lodged against him, defendant sought an investigation into the conduct of the Guttenberg Police. Additionally, defendant commenced a civil lawsuit. During the municipal court trial, the judge refused to permit defense counsel to question Barrera relative to the internal affairs investigation and also refused to permit defense counsel to make a proffer as to the relevancy of the inquiry outside of the presence of Barrera, who was being cross-examined by defense counsel at that point in the trial. Further, the municipal judge rejected defendant's argument that the charges should be dismissed for lack of jurisdiction because the alleged conduct occurred in North Bergen rather than Guttenberg.
The court found that defendant committed the DWI in Guttenberg. On the merits, the judge found that there was probable cause to arrest defendant for the offenses and that the State proved beyond a reasonable doubt that defendant operated his motor vehicle under the influence, both by observation and also as a result of the breathalyzer test, which the court found was properly administered. Defendant was sentenced as a third-time DWI offender.*fn2
On appeal to the Law Division, defendant argued that (1) the municipal court judge precluded him from confronting Barrera regarding an internal affairs investigation into the circumstances surrounding his arrest and the subsequent charges, (2) there was no territorial jurisdiction for lodging the charges against him, (3) the State failed to prove beyond a reasonable doubt that he operated a motor vehicle under the influence based upon observation alone, (4) the breathalyzer test results should not have been admitted because of procedural defects in the test administration, (5) he was prejudiced by lack of discovery regarding the standardized field sobriety tests administered, and (6) he was also prejudiced by the admission of hearsay regarding the breathalyzer operator's checklist.
The Law Division judge rejected defendant's arguments. The judge acknowledged that there was some confusion over the exact street name and location of where defendant was first observed by Barrera, but was persuaded that Barrera was unequivocal in his testimony that the offenses occurred in Guttenberg. Likewise, the judge found that Barrera's testimony relative to his observation of defendant failing to stop and the breathalyzer test results established beyond a reasonable doubt that defendant operated his vehicle under the influence.
Finally, the court concluded that defendant's arguments relative to pretrial discovery, the internal affairs investigation, and limitations placed on the scope of the cross-examination of Barrera were collateral issues that did not impact the weight of the evidence supporting defendant's guilt, which the judge concluded was "pretty strong." The judge sentenced defendant in accordance with the previously-imposed municipal court sentence. However, the judge ordered a stay of sentencing until March 30, 2006.
II. The Hackensack Arrest and Charges
Sometime after 11:00 p.m. on October 31, 2002, Officer Audren Lamboy (Lamboy) of the Hackensack Police Department observed a vehicle, driven by defendant, traveling north on First Street at its intersection with Central Avenue at a high rate of speed. The vehicle proceeded through a red traffic signal and continued north on First. With overhead lights and sirens activated, Lamboy pursued the vehicle, observing at one point that defendant traveled the wrong way down a one-way street. The vehicle eventually stopped, and as the officer spoke with the defendant through the open driver's side window regarding production of his credentials, he detected a strong odor of alcohol emanating from defendant's breath. He also observed that the defendant's eyes were watery and he was rambling, fumbling, and almost stuttering. When Lamboy asked defendant to produce his credentials, defendant indicated that he had misplaced his wallet and could not find his documents. In response to questioning, defendant acknowledged that he had "a couple of drinks[,]" thought he was in Totowa rather than in Hackensack, and exhibited difficulty understanding instructions regarding how to perform certain field sobriety tests, which Lamboy testified defendant failed to perform satisfactorily.
Lamboy arrested defendant and transported him to police headquarters where he requested that defendant submit to a breathalyzer test. He read defendant the standard breath test statement twice and defendant twice refused to submit to the test. Defendant was charged with DWI in a school zone, N.J.S.A. 39:4-50(g); refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; failing to observe a traffic signal, N.J.S.A. 39:4-81; driving the wrong way on a one-way street, N.J.S.A. 39:4-85.1; careless driving, N.J.S.A. 39:4-97; failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f).
He was released from police custody, and several hours later, defendant sought copies of the State Police Emergency Network (SPEN) tapes for radio transmissions occurring at the time of his arrest. After "much litigation" defendant was provided with an edited tape containing radio communications from the night in question. Defendant filed a motion to compel production of an unedited tape, which the municipal judge denied. Defendant appealed to the Law Division judge, who ordered the production of the unedited tape. Defendant was then advised that the original tape no longer existed, but after the Bergen County Prosecutor's Office requested logs detailing the disposition of the tape, defendant was informed that the tape had not been destroyed but corrupted.
Thereafter, defense counsel moved before the Law Division for dismissal of the charges. The Law Division judge declined to dismiss the charges or hold a hearing on defense counsel's allegations of bad faith on the part of the Hackensack Police Department, and remanded the matter to the municipal court for further proceedings.
The municipal court judge heard oral argument on the disposition of the tapes, concluded that there was nothing in the record that evidenced bad faith or that the police deliberately destroyed the tapes, and ordered that the matter proceed to trial on the underlying charges. At the conclusion of the trial, the municipal judge found defendant not guilty of failure to observe a traffic signal and failure to wear a seatbelt, but guilty of the remaining charges, except that the court concluded that the State failed to prove that the DWI occurred within a school zone. Consequently, in sentencing defendant on the DWI, the court did not impose a school zone penalty. The court did, however, over the objection of defense counsel, sentence defendant as a third-time DWI offender. The court, however, ordered a stay of the sentence pending appeal.
Defendant filed an appeal in the Law Division. Defense counsel argued that driving while under the influence within a school zone and driving under the influence are two separate offenses and the municipal judge's finding that the State failed to prove that defendant was within a school zone required a not guilty finding rather than the municipal judge's ...