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State v. Amador

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 21, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERTO AMADOR, DEFENDANT-APPELLANT.

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).

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 24, 2007

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 erroneous conclusion that the school zone element of the offense was simply a sentencing enhancer.

Additionally, defense counsel argued that police officials engaged in misconduct and bad faith that prejudiced his client in such an egregious manner that it warranted dismissal of the charges. Specifically, defense counsel pointed to the circumstances surrounding, first, the non-production, then the production of a radio transmission tape of his arrest that defense counsel had originally requested in unedited format on the day of defendant's arrest, and the fact that it was not produced until six months later in edited form. Defense counsel urged that Sergeant Joseph Banta (Banta), who was responsible "to a limited capacity" for the maintenance of audio tapes utilized by the Hackensack Police Department at the time of defendant's arrest, "attempted to suppress evidence that would have helped [his] client or at the very least would have been impeachment information that [he] could have used to cross-examine Police Officer Lambois." Defense counsel also urged, for the first time, that defendant's stop was unrelated to speeding or "driving fast or . . . driving in an erratic manner[,]" but was "because he was a white male driving through a predominantly black neighborhood in a Porsche and the officer was conducting a pretextual car stop relating to a possible narcotics buy or something along those lines."

Finally, defense counsel argued the refusal conviction should be vacated and remanded to the municipal court, in light of State v. Cummings, 184 N.J. 84 (2005), decided after the defendant's conviction, which requires the State to prove a refusal offense based upon proof beyond a reasonable doubt rather than proof by the preponderance of the evidence and which was given retroactive application to pipeline cases.*fn3 184 N.J. 96, 99. Defense counsel noted that the question of the burden of proof had been preserved in the municipal court proceeding.

The Law Division judge, based upon a de novo review of the record, concluded (1) that the municipal judge properly denied defendant's motion to dismiss the charges based upon "issues related to the production of the tape in question[,]" (2) there was probable cause to arrest defendant for DWI, (3) the State proved the DWI charge with proof beyond a reasonable doubt, and (4) based upon that same standard of proof, the State proved that defendant knowingly refused to submit to a breathalyzer test. The judge also found defendant guilty of driving the wrong way on a one-way street, but not guilty of the careless driving charge. For sentencing purposes, the court treated defendant as a third-time DWI offender for both the DWI and refusal convictions.

On appeal of his conviction stemming from the Guttenberg incident, defendant raises the following points:

POINT I

THE LOWER COURT ERRED IN CONVICTING APPELLANT IN VIOLATION OF APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL BECAUSE OF THE STATE'S FAILURE TO PROVE THAT THE ALLEGED OFFENSES OCCURRED IN THE JURISDICTION OF GUTTENBERG.

POINT II

THE APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BECAUSE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT APPELLANT WAS UNDER THE INFLUENCE BEYOND A REASONABLE DOUBT.

POINT III

DEFENDANT'S DWI CONVICTION MUST BE REVERSED AS THE TRIAL COURT'S COMPLETE PROHIBITION OF CROSS[-]EXAMINATION CONCERNING STATEMENTS GIVEN BY THE ARRESTING OFFICER AND BREATHALYZER OFFICER TO THE GUTTENBERG POLICE DEPARTMENT INTERNAL AFFAIRS INVESTIGATOR, VIOLATED HIS CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS AND A FAIR TRIAL.

POINT IV

DEFENDANT'S CONSTITUTIONAL RIGHTS OF DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE MUNICIPAL PROSECUTOR SPECIFICALLY INSTRUCTED THE ARRESTING OFFICER NOT TO SPEAK TO COUNSEL BEFORE TRIAL, THEREBY IMPROPERLY WITHHOLDING EVIDENCE FROM THE DEFENSE AND PREVENTING COUNSEL FROM PERFORMING AN ADEQUATE PRE-TRIAL INVESTIGATION, AND WHEN THE MUNICIPAL COURT FAILED TO HOLD A HEARING TO DETERMINE WHETHER THERE WERE ANY INTERNAL AFFAIRS REPORTS GENERATED IN RESPONSE TO DEFENDANT'S INTERNAL AFFAIRS COMPLAINT, AFTER THE STATE REPRESENTED TO THE COURT THAT THE OFFICERS WERE INTERVIEWED BY AN INTERNAL AFFAIRS INVESTIGATOR, AND WHEN THE ATTORNEY GENERAL GUIDELINES REQUIRED SUCH REPORTS.

POINT V

THE LOWER COURT ERRED IN SENTENCING APPELLANT IN VIOLATION OF APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED TO CONDUCT AN EVIDENTIARY HEARING TO DETERMINE THE NUMBER OF APPELLANT'S PRIOR D.U.I. CONVICTIONS AND IGNORED THEIR APPELLATE STATUS.

On appeal of his conviction from the Hackensack incident, defendant contends:

POINT I

FAILURE TO DISMISS THE CHARGES BECAUSE OF THE STATE'S RESPONSE TO THE REQUEST FOR THE POLICE RADIO TRANSMISSIONS VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS AND TO A FAIR TRIAL.

POINT II

APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BECAUSE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT APPELLANT WAS UNDER THE INFLUENCE BEYOND A REASONABLE DOUBT.

POINT III

APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL WERE VIOLATED BECAUSE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT APPELLANT REFUSED TO TAKE A BREATHALYZER TEST BEYOND A REASONABLE DOUBT.

POINT IV

THE APPELLANT'S RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL WERE DENIED WHEN HE WAS SENTENCED BASED UPON A CONVICTION THAT WAS NOT FINAL.

We have considered the points raised in light of the record and the applicable law and we reject the arguments in their entirety. We affirm substantially for the reasons expressed in the oral opinions of Judges Carroll and Kenny of December 16, 2005 and March 17, 2006 respectively. We add, however, the following comments.

I.

First, as to the Guttenberg arrest, defendant contends that there is no Bulls Ferry Road in Guttenberg, only in North Bergen, and argues that Barrera's testimony therefore clearly establishes that when he first observed defendant, he was not in Guttenberg and therefore did not have jurisdiction over defendant.

Barrera testified he was "[i]n Guttenberg. It's a complex. That's what it's called, that little roadway. By Lydia Drive, it's a new complex they built down there." When the court asked where the location was, Barrera responded, "It's the Galaxy Hill, which goes down to River Road, is Ferry Road. When you make a left to go inside the complex, it's [Bulls Ferry]. That's what they call that, [Bulls Ferry] Road." He also acknowledged that Bulls Ferry Road in North Bergen was "[u]p further."

There is no dispute that Lydia Drive, River Road, Ferry Road, and Galaxy Hill are in Guttenberg. Barrera's testimony also indicated that he was aware of Bulls Ferry Road in North Bergen, and in his testimony he expressly differentiated it from his initial location by noting that it was "up further." It is evident that Barrera either misspoke when he referred to Bulls Ferry Road in Guttenberg, or perhaps because of the new construction, the "little roadway" in the area of the complex was informally referred to as Bulls Ferry Road. Whatever the case may be, the fact remains that Barrera stated unequivocally that he was within his jurisdiction and that he was near where Galaxy Hill runs down to River Road, an area undisputedly in Guttenberg. The municipal judge found this testimony credible, and the Law Division judge deferred to that determination. We find no basis to do otherwise. State v. Locurto, 157 N.J. 463, 474 (1999).

Second, defendant claims that the administration of the breathalyzer test failed to conform to the Attorney General Guidelines. The guidelines for administering breathalyzer tests are contained in N.J.A.C. 13:51-3.6(a)(2), which states that for any test utilizing a breathalyzer device, "[a] breathalyzer check list shall be used with this approved instrument. The sole purpose of [the] check list is to provide a record of the taking of breath samples . . . consistent with the provisions of N.J.S.A. 39:4-50.2(b)." The referenced statute simply states that a record of the taking of a breath sample must be made, and this record must include the date, time, and result of the test. Ibid. Martinez referred to the checklist during his testimony and repeatedly asserted that he followed the instructions on the checklist. No evidence or testimony was presented to indicate otherwise.

Defendant's specific challenge, however, was that Martinez did not continually observe him for at least twenty minutes before administering the test. In State v. Downie, 117 N.J. 450, 455-56, 469, cert. denied, 498 U.S. 819, 111 S.Ct. 63, 112 L.Ed. 2d 38 (1990), the Supreme Court noted that "for the breathalyzer to give readings that can be used with confidence, the operator must be sure that at least twenty minutes have expired since the last ingestion of alcohol to avoid the presence of 'mouth' alcohol, which can give a falsely high reading." Here, although the breathalyzer operator did not directly observe defendant for at least twenty minutes before administering the test, the record established that after defendant was arrested, he was brought to the police station and placed in an area where multiple officers were present. There is nothing to suggest that defendant ingested more alcohol or had the opportunity to do so. This circumstance was sufficient to eliminate any possibility that defendant managed to taint the results of the test by ingesting more alcohol or placing something in his mouth.

Third, the challenge to the Guttenberg convictions based upon the court's pretrial discovery rulings and evidentiary rulings during trial that limited the scope of his cross-examination implicate the exercise of judicial discretion which we will not overrule absent a finding of an abuse of discretion. State v. Marrero, 148 N.J. 469, 505 (1997). We find no such abuse here and agree, as Judge Kenny concluded, that the issues raised were collateral and "there's no evidence that this would have changed [the arresting officer's] testimony or would've changed the proofs which exi[s]ted prior to the filing of the internal affairs report, which is the breathalyzer at .14, the traveling at the high rate of speed, the officer's observations which he included in his police report and the failure of the field sobriety test."

Fourth, while there was no basis for the prosecutor to preclude defense counsel from questioning Barrera pretrial, we do not find that defendant was deprived of a fair trial. We observe that the questioning which defense counsel sought to undertake related to the internal affairs investigation rather than the stop of defendant's vehicle, defendant's arrest, and the subsequent administration of the breathalyzer tests.

II.

As to the Hackensack offenses, defendant claims that his right to a fair trial was impaired due to the State's failure to preserve the original SPEN tape and that the charges should have been dismissed because of discovery violations and misconduct. The basis of defendant's contention that he was never provided with the original tape stems from the absence on the tape of any radio transmission from Officer Lamboy, who testified during the trial that he "advised Headquarters that [he was] attempting to stop a vehicle traveling at a high rate of speed north on First from Central." In defendant's brief it is urged that "if the officer made this call as the state says he did, and if it is not on the tape which the state, through the police, represents to be accurate; then what else is missing from the tape? Because of the state's conduct, the defendant cannot know."

It is unclear whether the absence of Lamboy's purported statement on the tape has any relationship to the police's failure to provide the original tape to defense counsel despite months of back and forth between police and defense counsel, as well as a number of court proceedings initiated by defense counsel to secure the original tape. It is apparent from the record that the absence of Lamboy's purported radio transmission on the tape fueled defense counsel's argument that there was a possibility that there was something else the tape may have revealed that would have been helpful to the defense. The Law Division judge observed that "defendant fail[ed] to specify why the tapes would be sufficiently material to the defense." Further, when defense counsel took the stand to testify for the limited purpose of rebutting Banta's testimony regarding the handling of defense counsel's discovery request in connection with the SPEN tape, the municipal prosecutor questioned defense counsel as to the relevancy of the tape to the defense, and the following exchange occurred:

Q: What leads you to believe that there is relevant evidence on the audiotape that was not disclosed to you?

A: The extreme steps that the Police Department had taken to withhold this information from me. They have gone to some extreme steps.

Q: But you don't have a particular fact that your client told you that you were waiting to hear on the tape that didn't appear on the tape, did you?

A: I'm not going to disclose attorney/client privileges.

We do not understand how the contents of a radio transmission implicate attorney/client privilege, since any statements broadcast over the radio frequency were certainly not statements between defendant and defense counsel. We agree with Judge Carroll's assessment that "any argument now advanced by the defendant that the tape could have . . . contained potentially exculpatory statements is speculative at best." Although the circumstances surrounding the non-production and subsequent production of the SPEN tape and whether it had been improperly altered were relevant, they were not material to the defense that Lamboy lacked probable cause to stop defendant. The guiding principle of fundamental fairness guaranteed to a criminal defendant requires that the potentially exculpatory evidence be material to the defendant's defense. State v. Sanchez, 143 N.J. 273, 291-95 (1996). Here there was no proffer of the nature of any exculpatory evidence that may have been on the tape. Moreover, assuming the police inadvertently or deliberately altered the tape, that conduct did not alter the fact that Lamboy had probable cause to stop defendant's vehicle because defendant drove the wrong way on a one-way street. Consequently, the Law Division judge correctly determined there was no basis to dismiss the charges for due process violations.

Insofar as defendant's complaints that discovery was improperly handled, dismissal of charges for discovery violations is an extreme remedy. Such a remedy should not be granted in the absence of either "intention inconsistent with fair play" or "egregious carelessness or prosecutorial excess tantamount to suppression." State v. Clark, 347 N.J. Super. 497, 508-509 (App. Div. 2002) (quoting State v. Laganella, 144 N.J. Super. 268, 282 (App. Div. 1976)). There is nothing in the record to indicate that either of these conditions was satisfied and, therefore, the denial of defendant's application to dismiss the charges for discovery violations was also proper.

Nor did the court's finding that the State failed to prove the school zone aspect of the DWI offense warrant reversal of defendant's conviction for DWI. There is no dispute that N.J.S.A. 39:4-50 (a) and (g) create two separate and distinct offenses. See State v. Reiner, 180 N.J. 307, 318-19 (2004) (rejecting the argument that section (g) represents only a sentencing enhancer of the more general section (a) and holding that sections (a) and (g) represent separate and distinct offenses). However, because proof of the school zone charge requires proof of DWI, there was no substantive or procedural due process violations implicated in finding defendant guilty of DWI as a lesser included offense. State v. Muniz, 118 N.J. 319 (1990).

In Muniz, supra, defendant was convicted of death by auto, N.J.S.A. 2C:11-5. Id. at 322-23. His conviction was reversed on appeal because the trial court failed to inform the jury of the lesser included offenses of reckless and careless driving under Title 39 of the motor vehicle statute. Id. at 321. The court noted:

In considering whether reckless driving is a lesser-included offense of death by auto, the Appellate Division observed that "[t]he only real difference between the two offenses is that a defendant's reckless driving must be shown to have caused the death of another to sustain a conviction for death by auto." [State v. Muniz, 228 N.J. Super. 492, 497 (App. Div. 1998)]. Therefore, the court concluded, "the proof required to establish death by auto is also sufficient to establish every element of reckless driving, which makes the latter offense a lesser-included offense of the former." Ibid. The court further determined that careless driving, N.J.S.A. 39:4-97, is a lesser-included offense of reckless driving, and therefore of death by auto, because the former offense "differs from driving recklessly . . . only in that it involves a lesser degree of culpability." [Id. at 498]. We concur in the court's analysis of the inter-relatedness of these several offenses. Under the Code test of N.J.S.A. 2C:1-8[(d)], the motor vehicle offenses of reckless and careless driving would qualify as lesser offenses that are included within the Code crime of death by auto. [Id. at 325.]

Having determined, based upon its de novo review of the record, that the State proved beyond a reasonable doubt that defendant operated a motor vehicle under the influence, the court did not err in rejecting defendant's argument that he was entitled to a complete acquittal because of the State's failure to prove the school zone element of the offense under section (g). Ibid.

Finally, the court rejected defendant's testimony that he was confused about his obligation to submit to the breathalyzer test. The court specifically observed that defendant's contention that, he did not understand or was confused by these instructions simply does not square with the other evidence in this case. When his vehicle was stopped, he was requested to produce his documents and attempted to do so. He was subsequently instructed on how to perform the field sobriety tests which he then attempted to perform. And in his testimony at trial, he indicated that he understood what he was instructed to do in performing these tests. Although he also testified that he was probably very tired, he further stated that he was quote, "fine," end quotes.

For all these reasons, this Court finds beyond a reasonable doubt that the defendant was properly advised of his Miranda rights and was also read the proper implied consent warnings, that he understood them, and that he knowingly refused to take the [b]reathalyzer test.

Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J. 599, 615 (1997) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)) (alteration in original). Only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162. (internal citations omitted). In our view, the findings and conclusions of fact related to the refusal charge were supported by substantial, credible evidence and are, therefore, binding on appeal. See Locurto, supra, 157 N.J. at 470-72 (1999); Johnson, supra, 42 N.J. at 160-62.

III. Sentencing

For sentencing purposes, in both matters defendant was treated as a third-time DWI offender based upon an earlier DWI conviction out of Guttenberg Municipal Court and another such conviction out of Little Falls Municipal Court. Consequently, defendant was subject to a 180-day mandatory custodial term and a ten-year loss of driving privileges, along with additional penalties. While defendant does not dispute an earlier Guttenberg conviction, he argued that the Little Falls conviction was pending appeal and, therefore, he should not have been sentenced by either judge as a third-time DWI offender. Both the municipal court judges as well as both Law Division judges rejected this argument, and we do as well.

In State v. Haliski, 140 N.J. 1 (1995), the Court was called upon to consider the interplay between the literal language of N.J.S.A. 2C:44-4(b), which, for sentencing purposes, permits consideration of a prior conviction "provided that the time to appeal has expired[,]" and the provisions of N.J.S.A. 2C:43-6(c), which calls for the imposition of an extended term upon any person who "has been previously convicted of an offense involving the use or possession of a firearm[.]" There, a jury convicted the defendant of robbery, and following a pre-sentencing hearing before the trial court, the judge found that the robbery was committed while the defendant was armed. Defendant was therefore sentenced to a mandatory extended term pursuant to the Graves Act, N.J.S.A. 2C::43-6(c). Id. at 5. The Court rejected the defendant's argument that he was not subject to a mandatory extended term because the earlier conviction was pending appeal. Id. at 17. The court concluded that there was no bar to considering the defendant's prior conviction that was pending appeal for enhanced sentencing purposes, provided the enhanced sentence is considered "provisional" until the appeal process in connection with the earlier conviction has been exhausted or the time to appeal has expired. Id. at 18. The court noted that,

Under our holding, a defendant is not allowed "to escape the statutorily-required higher penalty because he or she has not yet been convicted, [based on a literal reading of N.J.S.A. 2C:44-4(b)], either because of strategic maneuvering by counsel or because of the vicissitudes of the court docket, [which creates] for defendants a windfall not envisioned by the Legislature." [State v. Hawks, 114 N.J. 359, 366-67 (1989).] "The sentence, as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense." Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822 (1947). We reject that part of the Appellate Division holding that concluded that N.J.S.A. 2C:44-4[(b)] precludes the imposition of a mandatory extended term at the initial sentencing if an appeal is pending on the prior Graves Act conviction or if the time to appeal has not expired. [Id. at 17-18 (alterations in original).]

In a similar vein, the Court has noted that New Jersey's DWI statute is penal in nature, and its primary purpose "is to curb the senseless havoc and destruction caused by intoxicated drivers." State v. Tischio, 107 N.J. 504, 512 (1987). In our view, although the Court in Haliski was dealing with a criminal repeat offender statute, its reasoning applies with equal vigor to enhanced sentencing for those who commit multiple DWI offenses. Defendant should not be allowed to escape the statutorily-mandated higher penalties for third and subsequent DWI offenders "because of strategic maneuvering by counsel or because of the vicissitudes of the court docket." Haliski, supra, 140 N.J. at 17. Thus, defendant was properly sentenced as a third or subsequent offender for both the Guttenberg and Hackensack convictions. Of course, the sentences imposed are "provisional in the sense that if the earlier [Guttenberg DWI conviction] is reversed on appeal, the mandatory extended term [and penalties] must be vacated." Id. at 18.

Affirmed.


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