August 18, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JILL DELORENZO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 3-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2009
Before Judges Parker and LeWinn.
Defendant Jill DeLorenzo appeals from the July 14, 2008 order of the Law Division finding her guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, following de novo review. For the reasons that follow, we affirm.
The pertinent factual background may be summarized as follows. On December 28, 2006, defendant was arrested by an officer of the North Bergen Police Department and charged with DWI. At defendant's first court appearance on February 8, 2007, her attorney requested a two-week adjournment to submit a brief on a motion to suppress. On the adjourned date of March 1, 2007, defendant filed a motion to suppress; the court set March 21, 2007, as the date for the hearing on the motion. On that date, however, defense counsel was ill and failed to appear; all other parties were present. The court adjourned the matter to March 28, 2007.
During this interim, a new prosecutor took over the case. The day before the March 28, 2007 court date, the prosecutor received a letter from defense counsel requesting additional discovery, which counsel had requested on March 2, 2007 from the prosecutor previously assigned to the case. The request included: (1) the audio recording of the initial call to the police and the time it was received; (2) police dispatch logs; (3) radio call logs; and (4) the recordings of police radio calls. The court set a new trial date of April 18, 2007 to accommodate defendant who had an upcoming vacation.
On April 18, 2007, defendant moved to dismiss based on the State's failure to provide discovery. The prosecutor contended that he had only been involved in the matter for two weeks and that the discovery sought was beyond the scope of normal discovery requests. The prosecutor represented that the requested discovery was being compiled and would be provided to the defense. The municipal judge denied the motion, set a new trial date of May 9, 2007, and afforded defendant the right to renew her dismissal motion at that time.
On May 9, 2007, defendant claimed that the discovery still had not been received and filed a motion to suppress the results of the breathalyzer tests due to the State's tardy discovery response. The prosecutor stated that he had mailed out the discovery to defense counsel on May 4, 2007; therefore, the judge denied defendant's motion and scheduled a pre-trial conference for May 24, 2007 to discuss any additional discovery issues; the judge also set June 20, 2007, as the new trial date.
Defense counsel did not appear on May 24, 2007; therefore, no pre-trial conference was held. The State's witness, Officer Louis Valez, was not present at the time the matter was called by the judge on June 20; the State was afforded the option of waiting to see if the officer would appear at that time. Defendant, however, indicated to counsel that she did not wish to stay and requested a new trial date. The judge marked the case as "try or dismiss" on July 18, 2007.
Defendant was not available on July 18, 2007, and trial was rescheduled for July 25, 2007. Once again, however, the police officers were unavailable to testify on that date. The trial judge noted that the officers' unavailability had been discovered on the prior court date but after the matter had been scheduled for July 25. For that reason, defendant had not been notified that the officers would be unavailable on July 25.
Trial was rescheduled for August 20, 2007, and again marked as "try or dismiss." On August 14, 2007, defendant's mother passed away and defendant needed to go to Florida to attend to matters related to her mother's death. Therefore, all court dates were adjourned until December 5, 2007. However, defendant failed to appear on that date and a bench warrant was issued for her arrest.
Trial finally commenced on December 19, 2007, and concluded on January 9, 2008.
At the outset of trial, defendant moved to dismiss the charges for failure to afford her a speedy trial. In denying that motion, the judge stated:
The [c]court notes that there were 17 dates given in this particular matter going all the way back to January 25th of 2007 . . . . There were a number issues involved in postponements, and both sides requested time [sic] postponement. And the [c]court does note that [defendant] has been out of state for an extended period of time. Notwithstanding that, she didn't show up the last time, and there was a warrant for her arrest.
So, . . . on the question of speedy trial, I'm going to deny the motion.
Officer Louis Valez of the North Bergen Police Department testified that on December 28, 2006, at approximately 7:05 p.m., he was called to the scene of a motor vehicle accident near 2020 Tonnelle Avenue. When Valez arrived, he observed "two cars up on the side[;] . . . one car was . . . partially up on the side of the road, and the other car was right behind it." One of the cars, later determined to belong to defendant, "had some front end damage."
Valez observed defendant in her vehicle "laying down on . . . the front . . . from the driver's side over to the passenger side." Valez "tried waking [defendant] up. [He] tried to talk to her." He described defendant's condition as follows:
She was . . . it looked like she was sleeping. . . . I was worried that maybe she had been unconscious [be]cause of the accident. It wasn't heavy, heavy damage . . . in my opinion to . . . have enough to . . . knock her out. But she was sleeping. I tried waking her up. She started waking up, and she would talk to me and . . . I was able to tell that . . . something was wrong with her.
Valez attempted to remove defendant from the vehicle. He "tried asking for her hand[,] [but] [s]he wouldn't give [him] her hand." Valez tried to "ask her what she was on, had she been drinking, or where she had come from." Valez succeeded in bringing defendant out of the vehicle by "grabbing . . . her hand and . . . getting under her arm . . . and helping her out of the car . . . little by little very slow."
Valez testified that he "was able to smell alcohol." When he asked defendant about that smell, "she . . . told [him] she was at a restaurant right in North Bergen . . . right beforehand with some friends . . . ."
At this point, another officer was with Valez as he questioned defendant. Valez testified that "[h]e and the other officer were just trying to keep her from falling down." She "kept sliding down from the side of the car. . . . She couldn't even stand up." Valez testified that he observed no injuries on defendant.
As the result of his conversation with defendant, Valez decided to administer field sobriety tests to her. Defendant was unable to complete any tests, however, because "[s]he couldn't even stand up."
Based upon his "experience as a police officer," and his observations of "the odor of alcohol, the slurred speech, the not being able to stand up . . . [,]" Valez arrested defendant for DWI. Defendant was handcuffed, placed in the back of a police vehicle and brought to police headquarters.
Valez further observed defendant in the "processing room" at police headquarters approximately ten minutes later. He described defendant as "wanting to put her head down. She would lay down, and then she would wake up and say that she wanted to call her son and call her boyfriend. . . . [Y]ou could just tell that something . . . was wrong with her. She was impaired."
Officer Bronson Jussino testified that he administered two Breathalyzer tests to defendant in "the evening hours" of December 28, 2006. Jussino stated that the first Breathalyzer machine he prepared for the test was "not functioning properly." Therefore, he had to set up a second machine and it took about twenty minutes to do so. Jussino testified that Breathalyzer tests were administered to defendant at 9:09 and 9:19 p.m.; a blood alcohol level of .15 was recorded on the latter test.
Defendant testified that on the date in question, she left her house at 5:00 p.m. "to meet some friends to go shopping . . . and then just go have some dinner." While she was driving on Tonnelle Avenue her cell phone rang. At the same time, her car started "pulling to the right . . . ." Defendant noticed that her cell phone call was from her babysitter and she was concerned because her "son has asthma." Defendant described what happened next: "[W]hen I went to pick up the cell phone, my car went off the road, and it hit into a pole, and it was not moveable. And I stood there for about ten minutes." Defendant stated that she "lost control of the wheel of the car[,]" and it "just shifted to the right, and it went into the pole."
Defendant then called her boyfriend who told her "to sit tight, that [he would] be there as soon as [he] c[ould] . . . ." Defendant told her boyfriend that "[she] was going to go to the Nile Inn and have a drink to relax."
Defendant then walked to the Nile Inn, which she described as "five minutes from where the accident was." She stated that she had not been drinking before the accident; at the Nile Inn she had two "Cosmopolitans." She called her boyfriend "several times," and told him that she was "going to head back to [her] car, [she] d[id]n't feel that great." Defendant returned to the car and "laid down [be]cause [she] was freezing. It was cold out, and [she] was not feeling well." She described her symptoms as "[l]ike, dizzy sick, not so much drunk sick. . . . Like, nauseous sick." Defendant "put [her] legs up on the driver's seat and had [her] head laying down on the passenger side."
When Valez arrived at her vehicle, defendant "was nervous from everything," and told Valez that "[she] just went and had some drinks." Defendant told Valez she was waiting for her boyfriend and the officer called her boyfriend to see where he was; at that point he was approximately five to ten minutes away. Valez told defendant's boyfriend that defendant would be brought to the police station.
Peter Marolakos, defendant's boyfriend, testified that he spoke to her "[s]everal times" by cell phone after the accident and "[s]he sounded pretty fine." Marolakos also testified that he knew the distance from the site of defendant's accident to the Nile Inn to be "less than an eighth of a mile."
At the conclusion of defendant's testimony, she moved to suppress the Breathalyzer tests, arguing that they had been "administered outside a reasonable time period . . . ." The judge denied this motion at the outset of his decision, based upon Jussino's testimony. The judge found that defendant was transported to the police station between 7:15 and 7:30 p.m. and "it [was] only an hour and 54 minutes or and hour and 39 minutes between the time she g[ot] into the police station and the administrating of the Breathalyzer test." The judge concluded that the police did not "purposefully prolong the administering of the Breathalyzer test[.]" Rather, "[a]s soon as they discovered that the machine wasn't working, they immediately put in the second machine. . . . They had no knowledge of what the reading was going to be . . . . [S]o they did not do this purposefully. They did it reasonably."
In finding defendant guilty of DWI, the judge reviewed the evidence and concluded:
Now, what do we have here? We have an automobile accident on [Tonnelle] Avenue, very busy. Yes. Officer responds relatively quickly. He's there. . . . [I]s it credible that a person who is involved in an accident would get out of the accident and walk a quarter of a mile, it's an eighth going and an eighth coming back, drink two Cosmopolitans, and blow a .15? . . . [A]ny way I look at the facts . . . or hear the testimony of [defendant], I just can't believe it. It's not credible that a person would have an accident and get drunk afterwards. That's what she's trying to tell the [c]court. Judge, I wasn't drunk at the accident, I was drunk after the accident. I can't accept that because it doesn't have . . . any credibility to it. And, of course, as [the prosecutor] has pointed out, the reason why she's giving us that testimony is because she has much to lose.
So, therefore, I find as a finding of fact that [defendant] was the operator of the vehicle, and I find as a finding of fact that she was driving while under the influence prior to the accident and at the time of the accident. The State has proven its case that, in fact, she was DWI.
So, therefore, beyond a reasonable doubt, the . . . State has proven its case, and I find the defendant guilty as charged.
The judge thereupon sentenced defendant to a two-year suspension of her license, and imposed a $500 fine; $33 court costs; and $50, $75 and $200 in surcharges.
Defendant appealed to the Law Division. Following de novo review on July 14, 2008, Judge Sheila Venable rendered a lengthy decision from the bench; on July 16, 2008, the judge issued a written decision memorializing her oral decision.
The judge rejected defendant's argument that she was denied her right to a speedy trial, finding that five of the delays in scheduling trial "were chargeable to the defense[,]" namely, February 8, March 21, May 24, August 14 and December 5, 2007. The judge found that the "remaining postponements" were "reasonable or justified." The judge found that the State's delay in providing additional requested discovery was immaterial, as defendant had timely received initial discovery and the additional discovery requested was "beyond that which is ordinarily requested in this type of case[,]" namely police dispatch logs, patrol logs, and police car radio transmissions. The judge further found that defendant "claim[ed] no impairment of her ability to defend . . . ." Therefore, "because no substantial prejudice occurred, and because the defense was responsible for several delays," the judge denied defendant's motion to dismiss on speedy trial grounds.
The judge noted that she was obligated to accord "deference to the municipal court's credibility findings[,]" adding:
Under N.J.S.A. 39:4-50, operating a motor vehicle with a blood alcohol level of 0.08% or higher is prohibited. Here, [defendant] was observed by Officer Valez as having unstable movement, and an odor of alcohol. On the basis of these observations, Officer Valez attempted to administer field sobriety tests, but [defendant] was unable to comply. Additionally, as a result of breathalyzer tests, [defendant] had a blood alcohol reading of 0.15%. Furthermore, the defense has stipulated to the fact that [defendant] was intoxicated. These considerations clearly show that [defendant] was under the influence of alcohol.
Judge Venable concluded: "The municipal court clearly articulated that it found [defendant's] story incredible, thus eliminating reasonable doubt." The judge found defendant guilty of DWI and required her to pay "all mandatory fines and penalties detailed on the record of proceedings for January 9, 2008."
On appeal, defendant presents the following arguments for our consideration:
POINT I THE COURT BELOW ERRED IN NOT DISMISSING THE COMPLAINT AGAINST DEFENDANT BASED ON THE STATE'S DENIAL OF DEFENDANT'S RIGHT TO A SPEE[D]Y TRIAL.
POINT II THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT OPERATED HER VEHICLE WHILE INTOXICATED OVER THE LEGAL LIMIT[.]
Having reviewed these contentions in light of the record and the controlling legal principles, we find them to be without merit. We affirm substantially for the reasons stated by Judge Venable in her decision from the bench on July 14, 2008 and in her written decision of July 16, 2008. We add only the following brief comments.
Regarding her speedy trial issue, defendant argues that the State "was responsible for at least six adjournments of [her] matter." As Judge Venable noted, however, defendant was responsible for another five postponements of trial. "Any delay that defendant caused or requested would not weigh in favor of finding a speedy trial violation." State v. Gallegan, 117 N.J. 345, 355 (1989). Moreover, as the judge further observed, defendant failed to demonstrate any prejudice in her ability to present her defense as a result of these adjournments. We are satisfied that this issue lacks "sufficient merit" to warrant further discussion in this opinion. R. 2:11-3(e)(2).
Defendant's second argument, that the State failed to prove the DWI charge beyond a reasonable doubt, is premised upon defendant's continuing assertion that she consumed alcohol after the accident, not before. The municipal judge rejected this testimony as incredible. The Law Division judge deferred to that credibility finding.
Although the Law Division [judge] did not engage in [her] own credibility determinations separate and apart from the Municipal Court, [she] described on the record the evidence and testimony presented before the Municipal Court that persuaded [her] to "accede" to the Municipal Court's credibility determinations. Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error. [State v. Locurto, 157 N.J. 463, 474 (1999) (citations omitted).]
We are satisfied that defendant has failed to make "a very obvious and exceptional showing of error." Ibid. Therefore, we find no basis on which to "alter" the factfindings and credibility determinations of the two lower courts in this case.
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