On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0007-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Nugent.
Defendant Vivian Rivera appeals from a judgment of conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. She was sentenced to twelve hours of Intoxicated Driver Resource Center classes and her driving privileges were revoked for seven months. Appropriate fines and penalties were imposed, and two other traffic offenses were dismissed. Defendant raises the following arguments on appeal:
A. THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE MUNICIPAL COURT IN DENYING A MISTRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.
B. THE TRIAL COURT ERRED IN AFFIRMING THE DEFENDANT GUILTY OF THE OFFENSE CHARGED SINCE THE EVIDENCE PRESENTED FAILED TO ESTABLISH DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT.
C. THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE MUNICIPAL COURT IN DENYING THE MOTION FOR A MISTRIAL, AND THEREFORE, THE STANDARD OF REVIEW SHOULD BE CONSIDERED HARMFUL ERROR.
The sole issue at trial was whether defendant was driving on the morning she was arrested. Defendant admitted she was intoxicated and stipulated to her Alcotest reading of .10%. She denied operation of the vehicle, claiming that when the policeman stopped the car, her ex-boyfriend, Paulino DeJesus, threatened her and forced her to switch seats because his driving privileges were suspended.
Due to adjournments to permit defendant to notify or subpoena witnesses, the municipal court trial took place over five days in June, July, August and December, 2009. We summarize the relevant testimony.
On October 12, 2008, at 3:00 a.m., Sergeant Patrick Muller was on routine patrol in Hamilton Township, Atlantic County, when he observed a white Cadillac exiting the entrance drive of a Wawa market. The entrance was clearly marked "Do Not Enter" for exiting traffic. Muller followed the car and pulled it over after observing the driver make a left-hand turn against a red traffic signal.
Muller could not see into the vehicle before approaching it on foot because the rear windshield was tinted, but he had no doubt defendant was the driver because after stopping the car he "went right up to the passenger-side window." He did not see the car move after it stopped and he noticed nothing unusual as he approached on foot. Defendant was in the driver's seat, the owner of the car, DeJesus, was in the passenger seat, and two passengers were in the rear seat. ...