May 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES A. DEOLA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. MCA-05-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 9, 2008
Before Judges Lisa and Simonelli.
Defendant, James A. Deola, appeals from his conviction after a trial de novo in the Law Division, see Rule 3:23-8(a), of driving while intoxicated (DWI), N.J.S.A. 39:4-50, for which he was sentenced to seven months loss of driving privileges, twelve hours IDRC, and to pay a $306 fine, $33 costs, $50 VCCB, $200 DWI surcharge, and $75 Safe Neighborhood assessment. Defendant argues:
I. THE MUNICIPAL COURT AS WELL AS THE SUPERIOR COURT ERRED IN FAILING TO DISMISS THE CHARGES AS FILED AGAINST THE DEFENDANT ON FEBRUARY 6, 2007 WHEN THE CHARGING OFFICER FAILED TO APPEAR AT THE SCHEDULED COURT HEARING.
II. THE FINDING OF AFTER ACCIDENT CONSUMPTION OF ALCOHOL BY THE TRIAL COURT PROHIBITED A FINDING OF GUILT WITH RESPECT TO VIOLATION OF N.J.S.A. 39:4-50. IF SUCH A FINDING CAN BE SUSTAINED, THE IMPOSED LICENSE SUSPENSION OF SEVEN MONTHS WAS IMPROPER.
We reject these arguments and affirm.
On August 25, 2006, at about 4:00 p.m., defendant and his friend, Jan Albertson, went to a bar and consumed alcohol. Defendant and Albertson contended they remained in the bar for about one hour and they each consumed about three bottles of beer. They left in defendant's truck. Defendant was driving, intending to take Albertson home. After driving ten or fifteen minutes, a mechanical problem occurred with one of the wheels of the truck, causing defendant to lose control and go off the roadway, making contact with a utility pole. Defendant and Albertson had a friend who lived in the immediate vicinity, about 100 to 200 yards away from the accident scene. Although defendant could not drive the vehicle in a forward direction because of the damage, he was able to drive it in reverse to the friend's house. He backed into the driveway, about fifteen feet off the road.
Using his cell phone, defendant called Vincent Simione, a tow truck operator with whom he was familiar, and requested that he come to remove the vehicle. Defendant and Albertson sat in the truck waiting. Defendant did not report the accident to the police, but someone else called it into the State Police. State Troopers MacNeill and Lowry arrived at the scene between 8:00 and 8:30 p.m. They saw no vehicle, but observed the damage to the pole and followed the gouge marks made on the roadway by the damaged wheel to the friend's house.
When the police arrived, Simione had already loaded defendant's truck onto his flatbed truck. In discussing the incident with defendant, the police detected the odor of alcohol emanating from his breath. They asked whether he consumed any alcohol that evening, and he responded affirmatively. MacNeill specifically asked defendant whether he consumed any alcoholic beverages after the accident, and defendant replied, "No." After field sobriety tests were conducted, defendant was arrested, taken to the station house, and the Alcotest was administered, yielding a reading of .15% BAC.
When MacNeill questioned defendant at the station house, he acknowledged that he consumed a couple of beers at the bar. He was unsure of the timeframe. While being questioned by the troopers, defendant again stated, as he had at the accident scene, that he did not consume any alcohol after the accident. However, after being handed his summonses for various motor vehicle offenses, including DWI, defendant volunteered, for the first time, that he did consume some alcohol after the accident.
At trial, Lowry and MacNeill testified for the State. Defendant testified in his own defense, and he called Albertson and Simione. The Alcotest reading was stipulated, and it was stipulated that defendant operated a motor vehicle and that the police had probable cause to arrest him and administer the Alcotest. The sole issue in dispute was whether or not defendant's intoxication resulted from the consumption of alcohol after the accident.
Defendant testified that upon arriving at the friend's driveway, he was nervous and upset and wished to take Xanax. Needing some liquid for that purpose, he reached in the back of the truck and retrieved a bottle of vodka. Drinking from the bottle, he washed down the Xanax. According to defendant and Albertson, the two then sat there, each taking five or six swigs of vodka directly from the bottle. At some point, the owner of the home came out and talked to the two men. They explained their predicament. The owner gave each of them one bottle of his homemade beer. The two men drank the beer, probably not finishing the entire bottle, and, when the police arrived, they tossed the bottles into a nearby hedgerow. The police did not see defendant and Albertson discard the bottles, and they did not recover the bottles.
Simione said he received the call from defendant at about 6:45 p.m., but it took him about an hour to locate defendant. He saw defendant drinking from a bottle of beer when he arrived, and he saw defendant discard the bottle into the hedgerow when the police arrived.
The municipal court judge credited Simione's testimony and, because Simione saw defendant and Albertson drinking beer and discarding the bottles, accepted defendant's and Albertson's testimony that they each drank up to one bottle of beer that was given to them by the homeowner after the accident. However, the judge found incredible and rejected defendant's and Albertson's testimony about the vodka consumption.
The judge noted the significant gap in time between when defendant and Albertson claimed they left the bar and when the accident was called in. He concluded that "the bulk of this drinking took place before the operation of this motor vehicle." He therefore rejected the defense that defendant's intoxication at the time of operation was not proven, and found defendant guilty.
On appeal to the Law Division, Judge Forester gave due but not controlling deference to the municipal court judge's credibility findings, see State v. Locurto, 157 N.J. 463, 472-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964), and reached the same conclusion on the substantive offense. Citing State v. Snyder, 337 N.J. Super. 59 (App. Div. 2001), the judge concluded that the consumption of one bottle of beer after the accident did not preclude a finding of guilt, noting that defendant's consumption of that beer was voluntary and happened in a short duration after the accident. The judge concluded: "To dismiss defendant's charges based upon this finding would lead to the absurd result that anyone wishing to avoid a DWI conviction would merely have to drink alcohol after operation."
Before addressing the substantive issues implicated by the DWI conviction, we address defendant's argument that the municipal court as well as the Superior Court erred in failing to dismiss the charges because the State was not ready to proceed at the scheduled municipal court trial on February 6, 2007. These are the relevant circumstances. The case had been pending for a number of months, and there were various appearances in municipal court during that time, during which discovery issues were addressed and the case was prepared for trial. Apparently, February 6, 2007 was set as a date certain trial listing. Defendant, his witnesses, and his attorney appeared and were ready for trial. The prosecutor had subpoenaed Lowry, but Lowry did not appear. Attempts to reach Lowry by telephone were unsuccessful. The municipal court judge denied without prejudice defendant's motion to dismiss, stating he would consider any explanation given for Lowry's nonappearance at the rescheduled date of March 20, 2007.
On March 20, Lowry explained that at the time of this incident, he was a new State Trooper and, in accordance with State Police policy, during the first three months of his service, he was assigned to Trooper MacNeill in the coach program, in which the new trooper works with a veteran trooper who trains him in the duties of the State Police. Lowry acknowledged that he received notice to be in court on February 6, 2007. His explanation for not attending was that he was aware that MacNeill was not available for court at that time, and he assumed court would be postponed until the veteran officer was available. Actually, the prosecutor had not subpoenaed MacNeill for that court date. However, Lowry did not know that. Lowry did not call the municipal prosecutor, the municipal court, or any supervisory personnel at the State Police. He merely did not attend, assuming there would be a new date scheduled.
The municipal court judge found Lowry's conduct improper. However, recognizing Lowry's inexperience the judge said "it looks as though Trooper Lowry was somewhat unclear, as to the various procedures." Defense counsel candidly acknowledged that he suffered no prejudice because of the rescheduling. Considering the seriousness of the charges, Lowry's lack of experience, and the explanation given for Lowry's nonappearance at the prior listing, the municipal court judge determined that the interests of justice demanded determination on the merits and denied the motion to dismiss.
On de novo review, Judge Forester reached the same conclusion. In a written decision, he stated:
The judge handles the conduct of the trial and it is within the judge's "discretion to grant adjournments before trial and brief recesses or more extended continuances during trial." State v. O'Keefe, 135 N.J. Super. 430, 434 ([Law] Div. 1975). Our Supreme Court in State v. Gallegan, 117 N.J. 345, 355 (1989) made the following observation:
It is true that a delay in completing a prosecution may, depending on the circumstances, violate a defendant's constitutional right to speedy trial. Pollard v. United States, 352 U.S. 354, 361[, 77 S.Ct. 481, 485-86, 1 L.Ed. 2d 393, 399] (1957). A court would balance factors such as the length of the delay, the reasons for the delay, defendant's assertion of his right to speedy trial, and any prejudice to defendant caused by the delay.
Barker v. Wingo, 407 U.S. 514, 530[, 92 S.Ct. 2182, 2191, 33 L.Ed. 2d 101, 117] (1972).
In State v. Farrell, 320 N.J. Super. 425, 447 (App. Div. 1999), the appellate division stated that it has "been loath to sponsor the more severe sanction of dismissal because the demands of justice require adjudications on the merits to the greatest extent possible, [citation omitted] and because of concerns for the integrity of our statutory scheme governing the operation of motor vehicles."
Judge Forester rejected defendant's reliance on State v. Perkins, 219 N.J. Super. 121 (Law Div. 1987), noting that unlike in that case, no statement was made by the court in this case that failure to proceed would result in dismissal. We agree and amplify the judge's decision with the following:
The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and is imposed on the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S.Ct. 988, 993, 18 L.Ed. 2d 1, 7-8 (1967). The test governing one's right to a speedy trial was set forth by the United States Supreme Court in Barker, supra, 407 U.S. at 530-33, 92 S.Ct. at 2192-93, 33 L.Ed. 2d at 116-19, adopted by the New Jersey Supreme Court in State v. Szima, 70 N.J. 196, 200-02, cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed. 2d 180 (1976), and later reaffirmed in State v. Townsend, 186 N.J. 473, 487 (2006). This test applies to delays in municipal court prosecutions. See State v. Berezansky, 386 N.J. Super. 84, 99 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007); State v. Fulford, 349 N.J. Super. 183, 189 (App. Div. 2002); see also Pressler, Current N.J. Court Rules, comment on R. 7:8-5 (2008).
In determining whether a defendant has been deprived of the right to a speedy trial, the court must consider: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant. Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed. 2d at 117. No single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Id. at 533, 92 S.Ct. at 2193, 33 L.Ed. 2d at 118. Rather, each factor is interrelated and must be considered in light of the relevant circumstances of each case. Ibid.
Applying this standard, we find no mistaken exercise of discretion in denying defendant's motion to dismiss. The delay from February 6, 2007 to March 20, 2007 was of short duration. The reason for the delay was an inadvertent misunderstanding by an inexperienced State Trooper, but in no way designed to impede the defense. And, there was no prejudice to the defense. Considering the seriousness of the DWI charge, application of the Barker factors weighs heavily in favor of denial of the dismissal motion and determination of the case on the merits. See State v. Prickett, 240 N.J. Super. 139 (App. Div. 1990) (affirming denial of defendant's motion to dismiss a DWI charge when the State was unprepared to proceed on a peremptory trial date because of the unavailability of a witness).*fn1
We now address the substantive arguments dealing with the DWI conviction. We begin by stating that we are satisfied that Judge Forester's findings of fact are amply supported by sufficient credible evidence in the record as a whole, and we have no occasion to interfere with those findings. See Johnson, supra, 42 N.J. at 162. Thus, these are the relevant facts. Defendant admittedly consumed alcohol in the hours preceding the operation of his truck culminating in a mechanical malfunction that led to an accident. He then operated the truck further by backing it to the friend's driveway. Then, while waiting for a tow truck operator to arrive, he consumed most (or all) of one bottle of beer. His blood alcohol content, ascertained within a reasonable time of operation, was .15%, far above the legal limit imposed by N.J.S.A. 39:4-50(a).
In State v. Lizotte, 272 N.J. Super. 568 (Law Div. 1993), the court rejected a post-operation consumption defense. The defendant claimed to have consumed the remaining contents of an open can of beer as soon as he was pulled over by the police. Id. at 569. The court rejected the defense, resting its decision in large part upon the judicial interpretation of "operation" in DWI cases. The court noted that actual operation is not required, and that a defendant's intention to operate coupled with the ability to do so is sufficient. Id. at 571. Thus, because the defendant was still in control of his vehicle and could have driven away after consuming the beer, his operation had not ended. Ibid.
In Snyder, supra, 337 N.J. Super. at 66, after considering a record in which the defendant claimed he had consumed alcohol after having an accident in the parking lot of a bar, testimony found incredible by the trial court, we said:
Our Supreme Court has not directly addressed the question of further ingestion of alcohol after operation, but the precedents cited suggest it would be unlikely to do so in a case where such ingestion was purely voluntary and in circumstances so closely intertwined with the events immediately surrounding operation of a vehicle and an accident.
In our view, the consumption of one bottle of beer after the accident does not invalidate defendant's conviction. It does not negate the finding that he was intoxicated at the time of operation. First, defendant could be deemed to have still been "operating" his truck until it was placed on the flatbed truck. Although his truck was disabled because of the wheel malfunction, and collision with the pole, defendant was able to back it up 100 to 200 yards to his friend's house. He still had control of the vehicle, and, the possibility existed that he may have attempted to move it again, for example, to position it in a manner that it could be loaded onto the flatbed truck. But even aside from that consideration, we are satisfied that the consumption of one bottle of beer or less, voluntarily and closely intertwined with the events surrounding the operation of the vehicle, cannot stand as a defense to undermine the Alcotest reading, which established an excessive blood alcohol content within a reasonable time of operation.
Defendant's conviction is affirmed and the stay of defendant's sentence is vacated.