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State of New Jersey v. Terrence Mccabe

March 2, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRENCE MCCABE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-043.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 31, 2011 -- Decided: Before Judges A.A. Rodriguez and C.L. Miniman.

Defendant Terrence McCabe appeals from his conviction for driving while intoxicated, contrary to N.J.S.A. 39:4-50, and asserts that he was denied his right to a speedy trial; his conviction was based on illegally seized evidence; and the Alcotest® readings should have been excluded from evidence because they lacked a proper foundation. We find no merit to these contentions and affirm.

On June 11, 2008, the Parsippany-Troy Hills police dispatcher placed a radio call to Patrol Sergeant Daniel S. Bendas, reporting that the dispatcher had received a 9-1-1 call from a motorist who reported a suspected drunk driver. The motorist stated that he was following a vehicle that was being operated erratically. He described the vehicle as a white Buick with a specified New Jersey license plate number. The motorist further advised that the vehicle pulled into a driveway on Lakeshore Drive. The dispatcher instructed Bendas, who was in the vicinity, to proceed to that address. The dispatcher also advised Bendas that it was the residence of defendant, who was the registered owner of the vehicle in question.

Upon arriving at that address, Bendas observed defendant walking from his vehicle, which he had backed into the driveway, toward the front door of the home. At the time of this observation, defendant was fifteen feet away from his vehicle. The vehicle matched the description given by the motorist and bore the reported license plate.

Bendas pulled his vehicle into defendant's driveway and exited his vehicle. He asked defendant to walk toward him so Bendas could speak with him. As defendant approached, Bendas walked between the two vehicles and touched the hood of the Buick, which was hot. Bendas also heard "tingling sounds" from the car, which indicated that the vehicle had just been driven. Bendas then asked defendant for his name, and he responded, "Terry." Being satisfied that he was speaking with the owner of the vehicle, Bendas asked defendant to produce his driver's license, and defendant complied.

At this point, defendant became upset, stating that he had made it home; Bendas had no right to be talking to him or asking him questions; and he should not be getting in trouble. This led Bendas to conclude that defendant had operated the Buick, which still had a key in the ignition, although the car was locked.

Bendas continued to converse with defendant, during which time he detected an odor of alcohol emanating from defendant's breath. Defendant's eyes were bloodshot, his speech was slurred, and he appeared to be having trouble standing. Defendant claimed that he was coming home from work, but soon admitted that he was coming home from Tiffany's. When asked how many drinks defendant had consumed, he replied, "A couple."

When Bendas asked how many drinks were "a couple," defendant admitted that he had three or four drinks. From his own observations, Bendas believed that was still an understatement.

During the conversation, defendant's mood swung from "standoffish" to "abrupt" to "apologetic." He repeatedly told Bendas that he had lived in his home for fifty-five years, although Bendas knew that defendant was only fifty-three years old. Defendant repeatedly asked Bendas to "give [him] a break." When asked to clarify this request, defendant did not respond. When advised that an anonymous caller had reported his vehicle being driven erratically, defendant responded, "erotically." Defendant never denied having driven his car.

Officer Paul Levi arrived on the scene and made independent observations of defendant's inebriation. Levi observed that defendant was having a difficult time standing, was swaying, had poor balance, and slurred his words. Levi also detected an odor of alcohol emanating from defendant's breath. Defendant "continuously stated" his age incorrectly. Levi concluded that defendant was under the influence of alcohol.

After concluding that defendant was intoxicated, Bendas instructed him to perform field sobriety tests. Defendant twice attempted the one-legged-stand test, with no success. He almost fell over both times. Bendas terminated the field sobrietytests out of concern that defendant would injure himself and placed defendant under arrest for driving while intoxicated. A pat-down search of defendant's person produced another set of keys to the Buick. Defendant was not advised of his Miranda*fn1

rights during this investigation.

Defendant was transported to police headquarters and was then advised of his Miranda rights. While in the processing room awaiting an Alcotest®, defendant spontaneously said, "I have driven a lot worse than this and will probably fail the test." After waiting for twenty minutes, defendant provided two adequate breath samples. The Alcohol Influence Report indicated a blood alcohol level of 0.25%. Defendant was then issued a citation for driving while intoxicated.

The procedural history of this matter is relevant to defendant's speedy-trial issue. The summons issued to defendant scheduled a court appearance for June 17, 2008. On June 13, the Parsippany municipal court judge rescheduled the initial court appearance for June 24. There were multiple adjournments thereafter until January 30, 2009, when the Parsippany judge transferred the matter to Madison. Defendant does not base his speedy-trial claim on any of these early delays.

When the Parsippany judge transferred this matter to Madison, the Parsippany municipal court administrator advised the Madison court administrator that the matter was ready to proceed to trial. However, the Madison municipal court judge wanted the matter scheduled for a case management conference for February 18, 2009. A transfer order was entered that day by the Parsippany judge, who scheduled the matter as requested. On February 18, the Parsippany judge issued a new transfer order that rescheduled the case management conference for February 25. We do not have the record of the proceedings on February 25, although defense counsel subsequently represented to the judge that he had indicated on February 25 that the next date would be try or dismiss. However, on April 21, another transfer order was entered by the Parsippany judge scheduling the matter for a trial date of May 13 without a try-or-dismiss designation. Although we have no transcript of the proceedings on May 13, the prosecutor subsequently advised the judge that this date was carried by the court because there was not sufficient time to begin the case before the five o'clock calendar began. Thereafter, on May 21, the Parsippany judge entered yet another transfer order scheduling the matter for trial on June 10 before the Madison judge.

Early on the morning of June 10, the Madison court administrator adjourned the June 10 trial "due to some last minute happenings out of the court's control." This led the Parsippany judge to issue another transfer order scheduling trial for August 26 before the Madison judge. The order noted "THIS IS A FIRM TRIAL DATE[.] THERE WILL BE NO ADJOURNMENTS." On August 21, defense counsel advised the Madison judge that he intended to argue the suppression motion, which had not yet been heard, and to make a speedy-trial motion prior to the commencement of trial. Defendant had never served a written demand for a speedy trial before this date.

Defendant's motions were heard on August 26. The speedy-trial motion was heard first, and the suppression motion was heard as the evidence was presented. Defense counsel recited the procedural history of the case and focused his argument on the delay that took place after the initial transfer on January 30, 2009. He concluded, "My client has come for 10 or 12 court appearances. Virtually all of them [were] either because of the State's . . . failure ...


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