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State of New Jersey v. Terrence Mccabe

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 to provide discovery in a timely fashion and/or other reasons that are really not chargeable to . . . defendant[.]"

The prosecutor responded that he had never received a written demand for a speedy trial, "a cornerstone of any motion for speedy trial." He urged that a written demand was a prerequisite for a speedy-trial application. As to the May 13, 2009, trial date, the prosecutor pointed out that it was the court that adjourned it without application from the State. He indicated that the State was ready to proceed on that date but, to his recollection, defense counsel wanted to view the videotape from the police car, which he had not previously requested.

The judge denied the motion because he found no prejudice to the defendant and no assertion of the right to a speedy trial.

Bendas then testified to the facts surrounding his initial investigation in defendant's driveway. The judge addressed the portion of defendant's suppression motion dealing with the officer's right to be present in the driveway, the officer's alleged restriction of defendant's movement, and the alleged failure to advise defendant of his Miranda rights before questioning him. Defense counsel urged that the statements made by defendant in his driveway should be excluded because the interrogation was de facto custodial. Defendant conceded that the officer could walk down the driveway and even start talking to him.

The State urged that the officer was conducting an investigation of an anonymous 9-1-1 call and was permitted access to defendant's driveway to conduct that investigation. He urged that the officer had reasonable suspicion to believe that N.J.S.A. 39:4-50 had been violated in that defendant had operated the vehicle while he was under the influence of alcohol. The State asserted that the inquiry by the officer was identical to the inquiry that would have occurred had the officer stopped the vehicle on a highway. The officer did not follow defendant into his home; they both remained in the driveway. He asserted that defendant's movement had not been restricted because, when the officer asked him to lean on the vehicle, it was for defendant's own safety. He was not putting him up against the vehicle to conduct a pat-down and an arrest.

The judge found that State v. Golotta, 178 N.J. 205 (App. Div.), certif. denied, 178 N.J. 30 (2003), controlled the case, and the officer had a right to conduct an investigation and to pull into defendant's driveway. He concluded that State v. Nikola, 359 N.J. Super. 573 (2003), permitted the officer to walk down the driveway and conduct a discussion with defendant. He noted that a driveway had a lessened expectation of privacy and was not within the curtilage. He also concluded that defendant's statements in the driveway were admissible and thatno Miranda warnings were required, citing Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). The judge found that the act of parking the police vehicle in the driveway was not coercive; the officer's instruction to defendant to lean against the car was for defendant's safety because he was having trouble standing and was not coercive; and the scope of the inquiry was typical of any other stop on suspicion of drunk driving. As a consequence, there was no need to advise defendant of his Miranda rights during the discussions in defendant's driveway.

After the prosecutor completed his direct examination of Bendas, the trial was adjourned based on defense counsel's representation that he had some lengthy cross-examination of the officer that would not be completed before the judge's regular calendar began. On October 2, 2009, the Parsippany judge issued a transfer order scheduling the matter for trial on November 6, 2009. The order again stated, "THIS IS A FIRM TRIAL DATE[.] THERE WILL BE NO ADJOURNMENTS."

On November 6, 2009, defendant renewed his speedy-trial motion. He urged that there had been a seventy-two-day delay since August 26, and the case was over 500 days old. He asserted that there was "an issue of fundamental fairness and due process that the cross of a witness, the cross-examination should be reasonably contemporaneous with the direct." The State responded that it had not asked for any adjournments and argued that defense counsel had the benefit of two months to thoroughly prepare his cross-examination, which was not unfair to defendant.

The judge found that the trial was adjourned because defense counsel indicated that he had a very lengthy cross-examination of Bendas and would not be finished before the commencement of the regular calendar. The judge denied the motion, explaining it took over two months to continue the trial because he had a number of transfer cases from other towns and a number of ongoing trials so "it's just a matter of scheduling."

Cross-examination, redirect examination, and re-cross-examination of Bendas were then completed. Afterwards, Levi testified with respect to the Alcotest® he conducted. At the conclusion of his testimony, defendant objected to some of the documents the State offered into evidence. Specifically, he objected to some of the Alcotest® documents, including S-7A through S-7D, because the name of the person signing them was not typed below his or her signature, which he urged was a violation of Rule 1:4-4. He contended that they did not qualify as business records and were thus inadmissible. Defendant also objected to the Drager*fn2 documents, S-7E through S-7I, on the ground that it had not been established that they were authentic business records that were reliable. As such, they were not admissible, creating a foundational problem with the Alcotest® reading.

The judge overruled the objections to the documents and admitted everything into evidence. He found that the State had met its burden under State v. Chun, 194 N.J. 54, cert. denied, __ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), and under the business records exception with reference to the foundational documents. Defendant then moved for a defense verdict, which was denied. After closing arguments were made, the judge found defendant guilty of driving while under the influence, and he summarized the evidence in support of that conclusion. He found that the State had proven operation beyond a reasonable doubt and then sentenced defendant as a second-time offender, imposing various fines, assessments, and a DWI surcharge. He ordered defendant to serve thirty days of community service and forty-eight hours in the IDRC. He also imposed a two-year mandatory loss of driving privileges and a three-year interlock requirement thereafter. Defendant appealed his conviction and sentence to the Law Division.

Argument was heard on May 11, 2010, and Judge David H. Ironson issued a lengthy and thorough opinion deciding the case completely anew on the record made in the municipal court. The judge carefully reviewed all of the evidence and made his findings of fact.

First he addressed the speedy-trial issue and applied the four factors courts are to consider in deciding speedy-trial issues as identified in State v. Szima, 70 N.J. 196, 201, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976). The judge found as follows:

Defendant was arrested on June 11, 2008 and the trial began August 26, 2009 and concluded on November 6, 2009. While there was a delay, the [c]court finds the postponement attributable to a transfer between municipal courts, as well as congestion on the courts' calendar. Although the adjournments due to an overcrowded calendar are weighed against the State, the [c]court does not find the State engaged in purposeful delay tactics, nor was the State unprepared at any juncture. In fact, on August 26, 2009, the Prosecutor advised the [c]court that the State's witnesses were present. . . . In light of the above, the [c]court finds that . . .

[d]efendant was not unfairly prejudiced by the delay. Although [d]efendant may have suffered anxiety during this time and was required to expend the cost of an attorney, he was not incarcerated during this period, his driving privileges remained intact, he suffered no penalties in the interim, and his defense was not impaired. As the Tsetsekas [c]court noted, in "the administration of justice, dismissal must be a recourse of last resort." [State v. Tsetsekas, 411 N.J. Super. 1, 14 (App. Div. 2009)] (citations omitted). Weighing the four Szima factors, including the reasons for the delay and its effect on [d]efendant, the strong governmental interest in prosecuting matters involving Driving While Intoxicated outweigh the minimal prejudice to defendant. Accordingly, the [c]court finds . . . [d]efendant's right to a speed[y] trial was not violated.

The judge next addressed the constitutionality of Bendas's encounter with defendant in the driveway of his home, relying on Golotta, supra, 178 N.J. 205. The judge found:

In this case, the intrusion involved a stop of [d]efendant in his driveway, and the officer was informed the vehicle was being operated erratically, implicating reduced expectations of privacy and safety concerns. "[W]hen the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment." State v. Johnson, 171 N.J. 192, 209 (2002) (citations omitted). Accordingly, Fourth Amendment protections were not triggered[,] and Officer Bendas'[s] presence on [d]efendant's property was lawful. "Moreover, the caller's information unmistakably conveyed a sense that he personally had witnessed an offense in progress and had reported it close in time to his first-hand observations." G[o]lotta, supra, 178 N.J. at 223. The [c]court considers the fact that the police located [d]efendant's vehicle in his driveway at Lakeshore Drive, with the [d]efendant 10-15 feet from the vehicle, to support the "inference that the caller reported the vehicle's whereabouts soon after his original observations." [Ibid.]

Thus, the "remaining question is whether the caller described the vehicle with sufficient specificity to permit the officers reasonably to conclude that [[d]efendant's vehicle] was, in fact, the suspected vehicle." [Ibid.] Here, the answer is yes. As in Golotta, the 9-1-1 caller in this case described the vehicle's color, the type of vehicle, the vehicle's license plate number, and location. See [ibid.] As such, the [c]court finds this matter to fall "within that narrow band of cases in which a 9-1-1 call carries sufficient reliability to sustain a motor vehicle stop when the purpose of that stop is to prevent imminent harm to the vehicle's driver or to the public." Id. at 228.

Based on the above, the [c]court finds that Officer Bendas'[s] stop of [d]efendant was lawful as was Officer Bendas'[s] entrance onto [d]efendant's property to conduct a DWI investigation.

The judge then addressed defendant's claim that his conviction was based on illegally seized evidence, which violated his constitutional right against self-incrimination, the right to be protected against unreasonable search and seizure, and the right to be Mirandized. The judge found as follows:

Case law clearly rejects each of

[d]efendant's assertions. As discussed above, Officer Bendas "did not need a warrant to walk down defendant's driveway" to conduct a DWI investigation because what "a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection."

[Nikola, supra, 359 N.J. Super. at 581-82] (citing United States v. Santana, 427 U.S. 38, 42, [96 S. Ct. 2406, 2409, 49 L. Ed. 2d 300, 305] (1976)). In Nikola, the Appellate Division concluded that the officer lawfully walked down defendant's driveway to her garage to investigate a report of erratic driving as a person has a reduced expectation of privacy in the area beyond the bounds of their home and c[u]rtilage. [Id.] at 582 (citing Johnson, supra, 171 N.J. at 209). Thus, the [c]court finds ample support for Officer Bendas'[s] presence on [d]efendant's property to conduct an investigation of a report of erratic driving.

Having rejected defendant's claim that the officer had no right to be present on his property, the judge thoroughly addressed his claim of a Miranda violation.

Further, the [c]court finds that

[d]efendant did not have a right to be [Mirandized] before performing field sobriety tests, thus his right against self-incrimination was not violated. The Appellate Division addressed this very issue in State v. Ebert, noting that Miranda warnings are required only when a person is subject to "custodial interrogation." 377 N.J. Super. 1, 9 (App. Div. 2005) (citing Miranda, supra, 384 U.S. at 444[, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706]). "'General on the scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process' is not subject to Miranda warnings." Ebert, supra, 377 N.J. Super. at 9 (citing Miranda, supra, 384 U.S. at 477[, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725)]; see also State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (finding that Miranda does not apply during initial investigative procedures), certif. denied, 153 N.J. 216 (1998). As the Ebert panel observed, the Appellate Division has held that "a DWI suspect is not entitled to Miranda warnings prior to the administration of field sobriety tests." [Ebert, supra,] 377 N.J. Super. at 9 (citing State v. Green, 209 N.J. Super. 347, 350 (App. Div. 1986); State v. Weber, 220 N.J. Super. 420, 424 (App. Div.), certif. denied, 109 N.J. 39 (1987)). Moreover, in [Green], the Appellate Division observed that evidence relating to defendant's field sobriety and breathalyzer tests are admissible in the absence of Miranda warnings because they are non-testimonial in nature. [Green, supra,] 209 N.J. Super. at 352.

In [Berkemer], the United States Supreme Court held that a police officer asking a defendant a modest number of questions and requesting the defendant perform a field sobriety test in a public place "cannot fairly be characterized as the functional equivalent of a formal arrest." [Berkemer, supra, 468 U.S. at 442, 104 S. Ct. at 3151, 82 L. Ed. 2d at 336]. Although the Berkemer Court acknowledged that stopping "an automobile and detaining its occupants constitute a 'seizure' within the meaning of" the Fourth Amendment, the Court concluded that "roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute custodial interrogation that must be preceded by [Miranda] warnings." [Id. at 436-40, 104 S. Ct. at 3148-50, 82 L. Ed. 2d at 332-35] (internal quotations and citations omitted). Berkemer distinguished a motor vehicle stop from a custodial interrogation, pointing to "[t]wo features of an ordinary traffic stop [that] mitigate the danger that a person questioned will be induced [']to speak where he would not otherwise do so freely.'" Id. at 437[, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333] (quoting Miranda, supra, 384 U.S. at467[, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719]).

First detention of a motorist pursuant to a traffic stop is presumptively temporary and brief . . . [and therefore] questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek. Second . . . the typical traffic stop is public, at least to some degree[,] . . . [which] reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse.

Id. at 437[-38, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333-34]. Relying on the aforementioned reasoning, the Appellate Division in State v. Hickman concluded that the "brief questioning of defendant after a valid stop of the car . . . did not violate any of the constitutional provisions relied upon by defendant. The arguments that Officer Thomas was required to give [Miranda] warnings before questioning defendant and that defendant's admission that he was in possession of cocaine was involuntary, are clearly without merit." 335 N.J. Super. 623, 629 (App. Div. 2000).

Here [d]fendant characterizes the encounter not as a motor vehicle stop, but rather as a custodial interrogation requiring [Miranda] warnings. Defendant relies on the testimony of Officer Bendas, wherein he stated [d]efendant was "not free to leave" because he "had not finished [his] investigation," to support his assertion that the situation was a custodial interrogation. . . . However, the [c]court finds [d]efendant's characterization inappropriate. Rather, the [c]court concludes that Officer Bendas'[s] statements demonstrate the encounter was a motor vehicle detention for the purpose of conducting a DWI investigation. The encounter between [d]efendant and Officer Bendas comported with the description of a motor vehicle stop as described by the Berkemer Court. The encounter was relatively brief--certainly the stop was not "prolonged" such that [d]efendant could have reasonably believed that "questioning [would] continue until he provide[d] his interrogator[] the answers" he sought. Berkemer, supra, 468 U.S. at [438, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333]. Further, the stop was made in [d]efendant's driveway, a location held to be a public area. See Johnson, supra, 171 N.J. at 209.

Based on the above, the [c]court concludes that [d]efendant was not required to be administered his [Miranda] rights prior to performing field sobriety tests, and therefore he did not suffer an infringement on his right against self-incrimination. First, the [c]court finds that Officer Bendas was lawfully in

[d]efendant's driveway to conduct a DWI investigation. See Nikola, supra, 359 N.J. Super. at 581. Second, based upon the reasoning enunciated in Ebert, Berkemer, Green, and Hickman, [Miranda] rights were not required prior to conducting an investigation pursuant to a motor vehicle stop, nor to conducting field sobriety tests. As such, the [c]court concludes that the evidence obtained as a result of Officer Bendas'[s] encounter with [d]efendant was acquired lawfully and thus need not be suppressed under fruit of the poisonous tree doctrine.

The judge also rejected defendant's assertion that his statement at the police station, "I have driven a lot worse than this, and I will probably fail the test," should be suppressed. The judge found that the statement was voluntary, unsolicited, and not the product of police interrogation. He also noted that even without that statement "there [was] ample evidence of

[d]efendant's intoxicated operation of the motor vehicle." He found that the State had proven beyond a reasonable doubt that defendant operated his motor vehicle while intoxicated in violation of N.J.S.A. 39:4-50. The judge based his finding of intoxication on the Alcotest® reading of 0.25%, making defendant per se guilty. He rejected defendant's argument that the proffered foundational documents should have been excluded from evidence. He specifically found that the Drager technician's hard-to-read signature did not invalidate the veracity of the certification and that a proper foundation was laid under Chun, supra, 194 N.J. 54.

The judge also found that, even if the Alcotest® readings were inadmissible, the State had proven intoxicated operation beyond a reasonable doubt based on the testimony of Bendas respecting his observations of defendant. The parties stipulated that the conviction constituted a second offense, andthe Law Division judge imposed the same sentence that had been imposed by the municipal court judge. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I - THE RIGHT TO A SPEEDY TRIAL AND/OR TRIAL WITHIN 60 DAYS WAS UNREASONABLY DENIED.

POINT II - THE CONVICTION OF [DEFENDANT] WAS BASED ON ILLEGALLY-OBTAINED EVIDENCE WHICH WAS THE POISONOUS FRUIT OF THE POLICE'S VIOLATIONS OF [DEFENDANT'S] RIGHT AGAINST SELF-INCRIMINATION; RIGHT TO BE PROTECTED AGAINST UNREASONABLE SEARCHES AND SEIZURES;

AND RIGHT TO BE MIRANDIZED.

POINT III - THE ALCOTEST READINGS SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE AS UNRELIABLE AND NOT PROPERLY SUPPORTED BY THE PROFFERED "FOUNDATIONAL DOCUMENTS."

We note that the scope of our appellate review in this case is limited. Municipal court decisions are appealed first to the Law Division. R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division conducts a trial de novo on the record developed in the municipal court, pursuant to Rule 3:23-8. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). The Law Division judge is bound to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted); accord State v. Locurto, 157 N.J. 463, 472-74 (1999). The Law Division judge then finds the facts anew and reaches his or her own independent conclusions. Johnson, supra, 42 N.J. at 157. If the judge finds the defendant guilty, he determines the aggravating and mitigating factors and imposes sentence anew. State v. Moran, 202 N.J. 311, 325 (2010).

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Ironson in his written opinion of May 17, 2010. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Locurto, supra, 157 N.J. at 471. We add only the following comments.

We have elected not to reach the issue of defendant's concern about the foundational documents for the Alcotest® results inasmuch as the officer's field observations were more than sufficient to support a finding beyond a reasonable doubt that defendant operated his vehicle while intoxicated, as the Law Division judge quite properly found. Any error in the foundational documents is, thus, immaterial.

Additionally, we are more than satisfied that the Law Division judge correctly applied Szima, supra, 70 N.J. 196, to the procedural history of this case and correctly concluded that defendant had not been denied his right to a speedy trial. The delay was simply not constitutionally excessive. See State v. Berezanksy, 386 N.J. Super. 84, 99 (App. Div. 2006) (delay in excess of four months not excessive), appeal dismissed, 196 N.J. 82 (2008); State v. Fulford, 349 N.J. Super. 183, 190, 194-196 (App. Div. 2002) (delay of thirty-two months not excessive); State v. Prickett, 240 N.J. Super. 139, 141-48 (App. Div. 1990) (delay in excess of six months not excessive).

Finally, we are satisfied that this case is analogous to Golotta, supra, 178 N.J. 205, and the police officer was entitled to intrude on defendant's driveway and conduct an investigation.

Affirmed.


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