On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 04-09-R-T13.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2010
Before Judges Lihotz and Baxter.
Following a trial de novo in the Law Division, defendant Pamela Crossan was convicted on May 20, 2009 of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Because this was her third DWI conviction, the Law Division judge sentenced her to a mandatory ten-year suspension of her driving privileges and to a mandatory 180-day custodial term. The Law Division judge issued a twenty-two page written opinion explaining his reasons for finding defendant guilty of DWI. On appeal, defendant does not challenge the findings of fact or conclusions of law that the judge relied upon in finding her guilty. Instead, she argues before us that her DWI conviction should be reversed because trial counsel rendered ineffective assistance by failing to advise her, before she took the stand and testified in municipal court, that the judge could not draw an adverse inference if she exercised her right to remain silent. She frames the issue on appeal in the following terms:
I. THE DEFENDANT HAD INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE FEDERAL CONSTITUTION, DUE TO TRIAL COUNSEL'S FAILURE TO ADEQUATELY INFORM HER OF THE CONSEQUENCES FLOWING FROM A CHOICE WHETHER TO TESTIFY IN HER OWN DEFENSE OR NOT, ENTITLING HER TO AN EVIDENTIARY HEARING IN THE INTERESTS OF JUSTICE TO DETERMINE IF A NEW TRIAL IS WARRANTED. (Not Raised Below)
Because this issue was not raised in the Law Division, the judge had no opportunity to make any factual findings or reach any conclusions about the merits of defendant's ineffective assistance of counsel claim, which she supports with her own certification as well a certification provided by trial counsel. In the absence of a trial record addressing defendant's ineffective assistance of counsel claim, our only method of resolving the issue defendant now presents on appeal is by the exercise of original jurisdiction.
This appeal is not an appropriate candidate for the exercise of such an extraordinary remedy. While we recognize that Rule 2:10-5 does permit us to exercise "such original jurisdiction as is necessary to the complete determination of any matter on review," the exercise of such jurisdiction is not appropriate where issues of credibility are presented or where "the subjective and intuitive evaluations of a trial court" are "require[d]." State v. Sugar, 108 N.J. 151, 159 (1987).
The exercise of original jurisdiction would be particularly inappropriate here where defendant's claim of ineffective assistance of counsel cannot be resolved without a determination of the credibility and believability of the assertion defendant makes in her certification that she would not have testified had she known the judge could not draw an adverse inference from her refusal to do so. Moreover, trial counsel's own certification is equivocal and requires further factfinding, functions an appellate tribunal is ill-suited to perform. Ibid. This is not an instance where we are presented with a purely legal issue, nor have we been presented with factual assertions that could support only one factual conclusion. See AAA Mid-Atlantic Ins. Co. of N.J. v. Prudential Prop. & Cas. Ins. Co., 336 N.J. Super. 71, 78 (App. Div. 2000). We therefore decline to exercise our original jurisdiction.
Without an exercise of our original jurisdiction, we are left with no choice but to dismiss defendant's appeal. The dismissal is without prejudice to defendant's right to file a petition for post-conviction relief, see R. 3:22-1, in the Law Division.
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