March 31, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MANAF STAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4832.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 5, 2011
Before Judges Cuff and Simonelli.
This appeal has its genesis in a night of drinking at a local bar. Defendant Manaf Stas and Joseph Putz, known to each other as regular patrons of the bar, left together. Defendant offered to drive Putz home. Following an accident, Putz was charged with driving while intoxicated and defendant Stas was charged with allowing another to operate a motor vehicle while under the influence of alcohol, in violation of N.J.S.A. 39:4-50(a). Tried together, both were convicted in municipal court of the charged offenses.
Defendant sought de novo review in the Law Division. The judge found defendant guilty of the charge. We affirm.
This case hinges on conflicting versions of a drive home from a bar. It is undisputed that on April 16, 2008, defendant arrived at Duffy's Tavern (Duffy's) in Paterson after drinking two beers at another location. While at the bar, defendant consumed an additional beer. Also present at Duffy's that night was Putz, who consumed at least six beers over the course of the night. The two men recognized each other from previous nights at Duffy's, and despite having never spoken before April 16, 2008, defendant offered to drive Putz home when the bar closed at approximately three o'clock in the morning. The two men entered the green Dodge van defendant had borrowed from his sister and began the short trip to Putz's home in Hawthorne.
In the municipal court, the responding police officer testified about his observations, his investigation, and statements made to him by co-defendant Putz. At approximately 3:15 a.m. on April 16, 2008, Hawthorne Police Sergeant Jeff Vanderhook was dispatched to Pasadena Place, where a green van rested disabled in the middle of the road. The van had front-end damage to both the passenger side cab and the passenger side front tire. Nearby a red sedan had been pushed onto the apron of the sidewalk. The red sedan had damage along its driver's side, and the green van had visible traces of red paint in its damaged areas.
Vanderhook observed defendant and Putz walking around the disabled green van. At trial, Vanderhook testified that Putz approached him and stated that he had been driving home from Duffy's, and the vehicle had suffered a flat tire. Vanderhook observed that Putz smelled of alcohol and was unsteady on his feet. When asked if he had been drinking, Putz told the officer that he had consumed six beers. Vanderhook administered a battery of field sobriety tests. Because Putz could not safely complete them, he was instructed to sit on the curb. Based on Putz's perceived intoxication and his statement, Vanderhook concluded that Putz had operated the vehicle while intoxicated and arrested him. Meanwhile, other officers had arrived in support and questioned defendant.
Vanderhook transported Putz to the police station. During the trip, Putz elaborated and explained that defendant had initially driven the vehicle after leaving Duffy's. Putz told defendant to pull over so he could operate the van because defendant could not control the vehicle. At the police station, Putz submitted to a breathalyzer. His blood alcohol content registered .14% and .15%. Vanderhook also determined that the green van belonged to defendant's sister.
Both Putz and defendant testified at trial. Their version of the night contradicts Vanderhook's. Putz corroborated that he had been drinking heavily the night of the incident, and that he had accepted a ride home from Duffy's with defendant. However, Putz testified that defendant was the driver. Putz explained that defendant failed to follow some of Putz's directions and hit a parked car. Putz told defendant to pull over, and the police arrived while the two men were assessing the damage. Putz claimed that Vanderhook approached him, and when Vanderhook "assumed that I was driving[,] I kind of went with it." Putz believes he was not acting rationally when he confessed to being the driver and lied to the officer because he had been drinking.
Defendant's testimony corresponded with Putz's. Defendant testified that he was driving from Duffy's, lost control of the van when it suffered a flat tire, and hit the parked, red sedan. Defendant remembered the officer arrived soon after the accident, and the officer initially approached and spoke with Putz. Defendant claims that while Putz was being questioned, he was asked to remain on the other side of the street where he observed Putz's arrest. Defendant did not intervene as Putz was arrested. When auxiliary officers arrived, defendant was questioned and allowed to walk home from the scene.
After hearing this testimony, the municipal court judge found Putz's admission at the scene "unsolicited" and credible. By contrast, she found his recantation at trial eleven months later unreasonable. She also found Vanderhook credible and defendant's testimony not "credible." The judge found defendant guilty of permitting Putz to operate a vehicle that was under defendant's control.
The Law Division judge found defendant guilty as charged. In doing so, the judge discussed defendant's silence at the scene and considered it an admission. The judge also found the testimony of both defendant and Putz lacked credibility because "it's mind boggling to me that two individuals who admittedly did not know each other well would, then, have one individual take the blame . . . ." The Law Division judge found Putz's explanation that he confessed because he was confused illogical, and the judge could not "accept the explanation given by [defendant] at trial that later on he felt some type of moral reason to say that he was driving." Instead, the judge classified defendant's testimony and Putz's recantation as convenient and self-interested because by altering his position months later defendant insulated himself from a drunk-driving charge because the opportunity to conduct a breathalyzer test had long since passed. Ultimately, therefore, the judge affirmed the municipal conviction, finding "[Putz] was driving the vehicle, particularly at the time that it did stop, and that [defendant] [was] the passenger who . . . permitted [Putz] to drive . . . ."
On appeal, defendant raises the following arguments:
The State's Evidence Does Not Support the Finding of Guilt. (Raised below)
The Defendant's Silence Can Not Be Used Against Him to Determine His Guilt or Innocence. (Not raised below).
The Court Committed Plain Error by Admitting the Statement Against Interest by the Co-Offender as That Statement Lacked Reliability. (Raised below in part).
The Cumulative Error Present in this Case Demands Reversal. (Not raised below).
When an appeal is taken from a Law Division judge's review of a municipal court conviction, the appellate court must ensure that there is sufficient credible evidence in the record to uphold the findings of the Law Division, not those of the municipal court. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). However, because neither the appellate court nor the Law Division judge is in a good position to judge credibility, the municipal court's credibility findings are given deference. Locurto, supra, 157 N.J. at 471; State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
Defendant's arguments are inter-related. Defendant's first point essentially alleges that the State's proofs failed to support a finding of guilt because they were anchored by Putz's admission to Vanderhook. Defendant's third point contends that Putz's admission was wrongfully admitted because it was hearsay that did not fall within any exception. Thus, defendant's argument requires a determination of the admissibility of Putz's out-of-court statement to Vanderhook, and whether that statement can be used in the State's case against defendant.
The State's case against defendant depends on Putz's admission that he was driving the van. The testimonial evidence from both defendants that they were together in the van traveling home from Duffy's, the evidence and testimony that defendant had borrowed the van from his sister, and Vanderhook's observation that defendant and Putz were the only people near the van when he approached the accident does not establish which man was the driver. Putz's admission is the critical fact in support of the finding that defendant had control of the car and allowed the intoxicated Putz to drive it.
Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c); see also State v. Savage, 172 N.J. 374, 402 (2002). Hearsay is generally inadmissible because it is "untrustworthy and unreliable . . . ." State v. White, 158 N.J. 230, 238 (1999). Some hearsay, however, is admissible, because "exceptions are created out of necessity and are justified on the ground that 'the circumstances under which the statements were made provide strong indicia of reliability.'" Ibid. (quoting State v. Phelps, 96 N.J. 500, 508 (1984)).
Putz's statement qualifies as admissible hearsay against him under exception N.J.R.E. 803(c)(25), which provides:
A statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability . . . that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true. Such a statement is admissible against an accused in a criminal action only if the accused was the declarant.
On its face, this rule permits Putz's admission that he was driving to be used against him because it directly inculpates him. However, the plain language of the rule provides that the statement is only admissible against him, not against defendant.
In some situations, however, a declarant's out-of-court statement can be used against another defendant. Defendant and Putz were tried together in the same municipal proceeding. Rule 7:8-4 provides for trial of two or more complaints together "if the offenses arose out of the same facts and circumstances . . . ." Severance, however, is always available to a criminal defendant under Rule 3:15-2 because "the admission of the statement of a [non-testifying] co-defendant at a joint trial that implicates [a] defendant without the right of cross-examination constitutes prejudicial error." State v. Roach, 146 N.J. 208, 224, (citing Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L. Ed 2d 476, 479 (1968)), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Such a situation would deprive a defendant of his constitutional right to confront a witness. State v. Bankston, 63 N.J. 263, 269 (1973).
The present case does not implicate the Bruton prohibition because both defendant and Putz testified at their joint trial, thus affording each the opportunity to cross-examine and confront the other's testimony. It is well-settled that when a co-defendant makes an out-of-court statement tending to implicate a defendant, admission of that inculpatory statement is not error so long as the inculpated defendant may avail himself of the opportunity to cross-examine the declarant. State v. Stupi, 231 N.J. Super. 284, 291-92 (App. Div. 1989).
In Stupi, two men robbed a taxicab driver. Id. at 286. The men fled on foot but were tracked to the co-defendant's home, where the police recovered physical evidence of the crime. Id. at 286-87. During trial, the co-defendant testified that the defendant had suggested the plan to rob the driver. Id. at 287. The defendant cited the admission of this evidence as reversible error. Id. at 291. This court rejected the argument because "a defendant's right of confrontation is violated 'only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for full and effective cross-examination.'" Ibid. (quoting Nelson v. O'Neil, 402 U.S. 622, 627, 91 S. Ct. 1723, 1726, 29 L. Ed. 2d 222, 227 (1971)).
Putz's out-of-court statement, relayed through the testimony of Vanderhook, was admissible because Putz testified during the proceeding and was available for cross-examination. Ibid. Furthermore, Putz's out-of-court statement is not tinged with the unreliability that is characteristic of hearsay in general, and statements of co-conspirators specifically.
Accomplice statements are presumptively unreliable because "[t]heir doubtful character follows from the accomplice's or co-defendant's likely motivation 'to inculpate the defendant in order to exonerate him or herself, to gain revenge, or to curry favor with the authorities . . . .'" State v. Colon, 246 N.J. Super. 608, 612 (App. Div. 1991) (quoting State v. Gross, 121 N.J. 1, 14 (1990)); see also Lee v. Illinois, 476 U.S. 530, 541, 106 S. Ct. 2056, 2062, 90 L. Ed. 2d 514, 526 (1986) ("Due to his strong motivation to implicate the defendant and to exonerate himself, a co-defendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence." (quoting Bruton, supra, 391 U.S. at 141, 88 S. Ct. at 1631, 20 L. Ed. 2d at 488 (White, J., dissenting))).
Here, Putz's statements are not characterized by the self- serving taint described in Colon. Instead, the reliability of Putz's statement is bolstered because substantively, it strongly inculpates Putz and it cannot be characterized as an attempt to foist blame onto defendant. Unlike Colon, supra, where the co-defendant's statement "tended to dilute her personal responsibility," 246 N.J. Super. at 612, Putz's statement exposed him to a drunk-driving charge, and only secondarily created a basis for defendant's charge of allowing an intoxicated person to drive the van.
Having resolved that Putz's out-of-court admission was admissible in the joint proceeding against both defendants, the final step in the analysis focuses on the sufficiency of the evidence to support defendant's conviction. Johnson, supra, 42 N.J. at 162. N.J.S.A. 39:4-50(a) provides: a person who . . . permits another person who is under the influence of intoxicating liquor . . . to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more . . . shall be subject [to criminal penalty.]
"[Q]uasi-criminal" offenses such as this one, should be construed strictly "before criminal culpability may attach . . . ." State v. Skillman, 226 N.J. Super. 193, 198 (App. Div. 1988). Based on the record below and on a plain reading of the statute, defendant's conviction must be affirmed.
The evidence in the record supports a clear finding that Putz was intoxicated. Putz registered a 0.15% blood alcohol concentration when he was tested at the police station, and such chemical evidence of a driver's intoxication is admissible against a defendant charged with permitting another person to drive a vehicle under his control. State v. Gormley, 139 N.J. Super. 556, 560 (App. Div. 1976).
The record also supports a finding of defendant's knowledge of Putz's intoxication. "[B]efore a person may be convicted of permitting another person to operate a motor vehicle under the influence [of alcohol] . . . the State must produce evidence from which the trier of fact may reasonably infer, beyond a reasonable doubt, that such owner or custodian knew or reasonably should have known," of the driver's intoxication. Skillman, supra, 226 N.J. Super. at 199-200. The showing of knowledge, however, is an objective test, requiring a demonstration that a reasonable person should have known, from the attendant circumstances, that the driver was intoxicated. State v. Zanger, 370 N.J. Super. 360, 368 (Law Div. 2004).
In Skillman, supra, this court vacated the defendant's conviction pursuant to N.J.S.A. 39:4-50(a) because chemical evidence of the driver's blood alcohol concentration alone was insufficient to satisfy the knowledge element without evidence demonstrating the defendant's objective knowledge of the driver's intoxication. 226 N.J. Super. at 200. Conversely, the knowledge requirement is met when a defendant had been drinking with the driver at a bar and subsequent chemical analysis demonstrated the driver's intoxication. Gormley, supra, 139 N.J. Super. at 559-60.
Here, defendant's knowledge of Putz's intoxication is well-supported. Putz's intoxication is uncontroverted based on his positive breathalyzer. Defendant also spent the evening at the same bar where Putz was drinking, and a reasonable person in defendant's position would have known Putz was probably intoxicated. Furthermore, defendant testified that he knew Putz was being arrested because he was intoxicated, and the record suggests defendant observed Putz fail miserably the field sobriety tests.
Finally, the record supports a finding that the van was within defendant's control when Putz drove it. Defendant testified that the van belonged to his sister and that he had borrowed it for the night. The ownership was confirmed by Vanderhook's investigation and testimony. Similarly, the circumstantial evidence, gleaned from Vanderhook's observation that defendant and Putz were the only individuals near the van, supports an inference that the van was in their control and no one else. Coupled with the judge's credibility determination at trial that Putz was the driver, this observation supports an inference that defendant had control of the van and allowed Putz to drive. In short, the record contained sufficient evidence to allow the Law Division judge to find defendant guilty as charged beyond a reasonable doubt.
Defendant's second point concerning the Law Division judge's invocation of defendant's silence, merits some discussion. In his findings on the record, the Law Division judge stated that defendant's silence while Putz was being arrested amounted to an admission. It is well settled that individuals have a privilege against self-incrimination under the Fifth Amendment of the Constitution of the United States and under the Common Law of this State. State v. Deatore, 70 N.J. 100, 114 (1976). "The practical effect of the privilege to remain silent is, as we held a decade ago, 'that when a defendant expressly refuse[s] to answer, no inference can be drawn against him . . . .'" Id. at 115 (quoting State v. Ripa, 45 N.J. 199, 204 (1965)); see also State v. Muhammad, 182 N.J. 551, 574 (2005). Similarly, an accused is "under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not." Deatore, supra, 70 N.J. at 115. Sometimes, pre-arrest silence may be used for impeachment purposes if the alleged silence significantly preceded the arrest, and did not arise in a custodial or interrogation setting. State v. Brown, 118 N.J. 595, 610 (1990).
Any comment about a defendant's silence at or near the time of arrest should be approached with great caution. Here, we need not decide whether defendant was detained or in a custodial setting at the time Putz was arrested because the record contains more than sufficient evidence to find beyond a reasonable doubt that defendant knew Putz was intoxicated and allowed him to operate the car defendant drove that evening. Accordingly, if the judge erred in referring to defendant's silence, it constituted harmless error. R. 2:10-2.
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