June 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAYMOND GRIMES, JR., DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 corrected brief, and that motion was granted by order dated February 23, 2007.
In his appellate brief, defendant asserts the following points of argument:
POINT I: THE STATE FAILED TO PRODUCE DOCUMENTATION AND DISCOVERY SHOWING THAT THE STOP SIGN THAT WAS ALLEGEDLY GONE THROUGH WAS PROPERLY ORDAINED BY THE BOROUGH OF WATCHUNG. (ARGUMENT NOT PRESENTED TO THE COURT ON THE MOTION FOR RECONSIDERATION BUT IS ARGUED ON THE MUNICPAL APPEAL).
POINT II: THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT FAILED THE PHYSICAL TESTS WHICH WOULD PROVE BEYOND A REASONABLE DOUBT THAT HE WAS INTOXICATED. (ARGUED ON MUNICIPAL APPEAL BUT NOT ON MOTION FOR RECONSIDERATION).
POINT III: THE DEFENDANT/APPELLANT WAS DENIED AN OPPORTUNITY TO TESTIFY AS TO HIS ACID REFLUX AND HIS INGESTION OF NEXIUM, DESPITE THE FACT THAT IT WAS IN THE POLICE REPORT, AND WAS ALSO DENIED THE OPPORTUNITY TO HAVE HIS EXPERT TESTIFY AT TRIAL REGARDING THE NEXIUM ISSUE AND THE BREATHALYZER RESULTS. (ARGUED ON MUNICIPAL APPEAL BUT NOT ON MOTION FOR RECONSIDERATION).
POINT IV: THE STATE FAILED TO SHOW THAT THE TWENTY MINUTE GESTATION PERIOD TOOK PLACE PRIOR TO SAMPLES BEING EXTRACTED FROM MR. GRIMES AND THE BREATHALYZER READING SHOULD THEREFORE NOT HAVE BEEN ALLOWED INTO EVIDENCE. (ARGUED ON MUNICIPAL APPEAL BUT NOT ON MOTION FOR RECONSIDERATION)
POINT V: APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AS WELL AS HIS RIGHTS UNDER ARTICLE I, SECTION 10, OF THE NEW JERSEY CONSTITUTION IN BEING DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S REFUSAL TO ALLOW APPELLANT TO PRESENT EXPERT TESTIMONY AT TRIAL.
POINT VI: APPELLANT IS ENTITLED TO HAVE HIS APPEAL REINSTATED BASED ON THE FACTS AND CIRCUMSTANCES SUBMITTED TO THE LOWER COURT ON HIS MOTION AND MOTION FOR RECONSIDERATION.
The State contends the Law Division judge was well within his discretion to dismiss defendant's municipal appeal and to deny defendant's motion for reconsideration of the dismissal. After a careful review of the pertinent facts and applicable law, we affirm. We do not reach the merits of defendant's substantive arguments.
Defendant appeals from the Law Division's order denying his motion for reconsideration of the dismissal of his appeal from the municipal court's judgment. In general, a decision on whether to deny a motion for reconsideration is addressed to the judge's discretion. Fusco v. Newark Bd. of Ed., 349 N.J. Super. 455, 462 (App. Div. 2002); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997); Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative competent evidence . . . . [Cummings, supra, 295 N.J. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
At the August 8, 2006 oral argument, defendant suggested that the Somerset County Prosecutor's Office suffered no prejudice as a result of the late filing of his brief. He indicated that personal constraints and professional commitments for clients had prevented him from filing the brief on time. In its ruling, the Law Division dismissed the municipal appeal because of the unauthorized late filing of defendant's brief. The Law Division explained:
[Y]ou know, we got these Rules. Obviously under 1:1-2, rules, you know, can be relaxed. That's what I'm looking at here. To make simplicity in procedure, fairness in administration, eliminate unjustifiable expense and delay, a Rule may be relaxed or dispensed with when its adherence would result in an injustice.
Now I got to weigh that based upon --and I appreciate the fact that you were very forthcoming in your certification. You are a busy guy.
You are busy with your practice and busy with your personal activities. But I need to tell you that my understanding of the Rule, that does not give rise to the criteria that the Court should relax the Rule.
So I am going to deny your application for reconsideration.
While we affirm the result of the Law Division's ruling, we affirm for a different reason. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); Bryant v. Atlantic City, 309 N.J. Super. 596, 629 (App. Div. 1993).
The Law Division clearly refused to exercise its presumed discretion to vacate its earlier dismissal of defendant's municipal appeal because it had granted several extensions for defendant to file his brief, and defendant had not complied with the court's timetable. The brief was eventually filed beyond the time period allowed by the court. The late filing was not opposed by the State, but it was not approved by the court. Under our view of the case, the briefing schedule is of no moment. The Law Division was obliged to dismiss defendant's municipal appeal and it had no discretion in the matter.
Defendant was required to perfect his appeal from the judgment of the municipal court within twenty to twenty-five days of the judgment:
The defendant . . . if aggrieved by a final post-judgment order entered by a court of limited jurisdiction shall appeal therefrom by filing a notice of appeal with the clerk of the court below within 20 days after the entry of judgment. Within five days after the filing of the notice of appeal, . . . one copy thereof shall be filed with the Criminal Division Manager's office . . . . On failure to comply with each of the foregoing requirements, the appeal shall be dismissed by the Superior Court, Law Division without further notice or hearing.
The municipal court found defendant guilty of DWI on August 8, 2005. Defendant's submissions to the Law Division establish and he concedes that he filed his notice of appeal on September 16, 2005. This is clearly beyond the twenty to twenty-five day limit established in Rule 3:23-2. Although defendant argues for a relaxation of this time limit, as Rule 1:1-2 indicates, certain rules may not be relaxed:
The rules . . . shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. [emphasis added.]
The time period in question is one of those rules "otherwise stated." Ibid. Rule 1:3-4(c) provides, in pertinent part, that "[n]either the parties nor the court may . . . enlarge the time specified by . . . R. 3:23-2 (appeals to the Law Division from judgments of conviction in courts of limited criminal jurisdiction). . . ." Defendant does not contend that the dates are inaccurate; so, his appeal from the municipal court ruling was clearly filed out of time. The Law Division was required to dismiss the appeal on that basis.
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