On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 41-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Parker, R. B. Coleman and Lyons.
Defendant Raymond Grimes, Jr. seeks to have his municipal appeal of a drunk driving conviction reinstated in the Law Division. For the reasons that follow, we deny that request and instead affirm the dismissal of his appeal from the municipal judgment.
On October 13, 2004, Raymond Grimes left his law office around 9:30 p.m. He was going to meet his girlfriend at the TGI Friday's in Watchung, at which he arrived around 10:00 p.m. Grimes stayed at that TGI Friday's for about one and a half hours. A credit card receipt indicated Grimes purchased three drinks: one cocktail for his girlfriend and two beers he claimed to have consumed.
In the early morning hours of October 14, 2004, Officer Brad Sporer of the Watchung Police Department was stationed just outside the Blue Star Shopping Center on Route 22. At approximately 12:05 a.m., he observed a Jeep Grand Cherokee run a stop sign near an exit to the shopping center. The stop sign was at the edge of the property, and the officer had no knowledge as to whether the sign was public or private. Officer Sporer was ten to fifteen feet away when he made this observation. He then followed the car and stopped it about one quarter mile down the road. He approached the driver's side of the automobile where he noted a smell of alcohol. When asked where he was coming from, the driver, Raymond Grimes, admitted he was coming from Friday's restaurant. He acknowledged having a couple of beers there. The officer characterized Grimes's ability to retrieve documents and to get out of the car as "a little slower than usual."
Once out of the car, the officer asked defendant to perform certain motor skills tests. These tests were videotaped by a camera in the police cruiser. The officer also testified that defendant was staggering and slurring some of his words. On the walk and turn test, the officer awarded defendant a score of two out of a possible six because defendant made an improper turn. Despite a demonstration of how to properly perform the pivot and turn, defendant did not adequately do it. Defendant also did not perform the requested number of cycles on the finger dexterity test. Defendant could not recite the alphabet accurately either. He did not attempt to balance with a leg raised because of an apparent injury.
After these tests, Officer Sporer placed defendant under arrest. Once at the station, defendant was read his Miranda rights. The officer also prepared the defendant for a breathalyzer test and explained to him the consequences of refusing the test. Officer Jeffrey Skibenes conducted the breathalyzer test and recorded the results. Defendant was in the officer's custody for about ten minutes before the administration of the first test. The defendant did indicate to the officer that he was on Nexium, but the officer had no knowledge of this drug. The first test took place at 12:57 a.m., on October 14, 2004. That test returned a Blood Alcohol Content (BAC) of 0.18 percent. According to protocol, Officer Skibenes conducted a second test at 1:07 a.m. That test yielded a result of 0.19 percent.
Summonses for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96, were issued by the Watchung Police Department. A trial commenced before Judge Richard M. Sasso and was conducted on June 2, 2005 and August 8, 2005 in the Watchung Municipal Court. At the conclusion of the trial, the municipal court judge found defendant not guilty of reckless driving but guilty of DWI. For the DWI conviction, defendant was sentenced to a seven-month suspension of driving privileges, twelve hours in the Intoxicated Driving Resource Center (IDRC), a $506 fine, $33 in costs, $50 Violent Crimes, $75 Safe Neighborhoods and $200 DUI surcharge. The judge instructed defendant that he had twenty days to appeal the conviction and sentence.
Defendant filed a Notice of Appeal with the Superior Court, Law Division, Somerset County, on September 16, 2005. The Somerset County Criminal Case Management Office sent an initial letter to defendant on October 6, 2005 indicating that defendant's appeal brief would be due by November 25, 2005. Defendant failed to submit the brief by that date, but with the State's consent, the time to file the brief was extended to January 9, 2006. Again, defendant did not file a brief by the deadline, and the Law Division further extended the time to file to February 20, 2006. Defendant requested yet another adjournment on March 21, 2006, and defendant's brief was filed on March 22, 2006. The State did not file opposition papers.
On April 4, 2006, the Law Division judge, to whom the matter was assigned, dismissed the appeal because the court had not approved of an extension of time for defendant to file his brief on March 22, 2006. Defendant filed a notice of motion for reconsideration, which was heard on August 8, 2006 and denied. An order to this effect was signed on the same date.
Defendant then filed his notice of appeal with this court on September 22, 2006. On January 5, 2007, the appeal was administratively dismissed for defendant's failure to file a timely brief. Defendant then moved to vacate the dismissal, to reinstate the appeal and to extend the time to file a ...