June 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDERIC D. SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 76-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012 --
Before Judges Messano and Yannotti.
Defendant Frederic D. Smith appeals from a final judgment of conviction entered by the Law Division on April 6, 2011, following a municipal court appeal in the Law Division finding him guilty of driving under the influence of intoxicating liquor and other offenses. For the reasons that follow, we affirm.
On February 11, 2010, a police officer from the Spotswood Police Department (SPD) issued five motor vehicle summonses to defendant. He was charged with driving under the influence of intoxicating liquor, N.J.S.A. 39:4-50; driving under the influence of intoxicating liquor in a school zone, N.J.S.A. 39:4-50(g); reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A. 39:4-97; and driving without insurance, N.J.S.A. 39:6B-2. The matter was thereafter tried in the municipal court. *fn1
At trial, Officer Nicholas Mayo (Officer Mayo) of the SPD testified that on the morning of February 11, 2010, he was on patrol and stationed his vehicle on Devoe Avenue because of snowy and icy conditions. At around 9:20 a.m., Officer Mayo witnessed defendant's vehicle collide with the rear end of another vehicle. Officer Mayo observed defendant attempt to exit his vehicle, stumble into the roadway, and almost fall to the ground. As he escorted defendant to the sidewalk, Officer Mayo smelled alcohol emanating from defendant.
According to Officer Mayo, defendant spoke in a slurred and slobbering manner. Officer Mayo said that defendant's eyes were bloodshot, watery, and constricted. He had dried, runny yellow mucous between his upper lip and nose.
While still at the scene of the accident, defendant told Officer Mayo that he had taken Percocet and consumed two alcoholic beverages that morning. Because of the icy conditions on the road, Officer Mayo was only able to administer the horizontal gaze nystagmus test (HGN test)*fn2 to defendant. Based on the results of that test and his observations of defendant, Officer Mayo concluded that defendant had operated a motor vehicle while under the influence of intoxicating liquor. Officer Mayo placed defendant under arrest.
Officers then transported defendant to the Spotswood police headquarters and brought him into a processing room. Officer Mayo advised defendant of his Miranda*fn3 rights and the consequences of refusing to submit to a breath test, as required by N.J.S.A. 39:4-50.2(e). Officer Mayo also read to defendant a standard statement describing the Alcotest. After defendant agreed to submit to the breath test, Officer Mayo administered several sobriety tests to defendant.
Officer Mayo first administered the finger-to-nose test. Officer Mayo instructed defendant on how to perform that test. Defendant missed two attempts to touch his nose with his left hand. He also missed all three attempts to do the same with his right hand. Officer Mayo next instructed defendant on how to perform the heel-to-toe test. As he instructed defendant on how to perform this test, Officer Mayo observed that defendant had a difficult time maintaining his balance. Defendant missed four of his first nine steps. He did not turn around as instructed, and during the nine return steps, he missed six steps.
Officer Mayo then instructed defendant on how to perform the next test, which required defendant to tilt his head back, close his eyes and estimate the passage of thirty seconds. Defendant exhibited leg and eyelid tremors while attempting to accomplish this test. He also estimated that thirty seconds elapsed when only twenty-four seconds had elapsed, and he swayed side to side during the test. Officer Mayo thereafter instructed defendant on how to complete the walk-straight-and-turn test.
Defendant leaned towards his left side from the waist up during this test.
After administering these sobriety tests, Officer Mayo interviewed defendant. Defendant stated he was driving to South River when the accident occurred. Defendant had last eaten at 8:00 p.m. the night before and he slept for only approximately three hours. He claimed that he had two glasses of rum and coke at his residence. He had his first drink at 10:00 p.m. the night before and his last drink at 1:00 a.m. Defendant stated that he had ingested Percocet and Nexium.
While still in the processing room, Officer Mayo sat defendant down on a bench and monitored him for twenty minutes. Defendant did not vomit, burp, or place anything in or near his mouth during this period. Officer Mayo attempted to administer the Alcotest at the conclusion of the twenty-minute observation period, but he could not do so because the machine required a solution change.
Shortly thereafter, Officer Mayo brought defendant to the Helmetta Police Station so that the test could be performed there. Officer Mayo again monitored defendant for twenty minutes. Defendant did not vomit, burp, or place anything in or near his mouth during that time. Officer Mayo administered the Alcotest twice. The results of the tests indicated that defendant had a blood alcohol concentration of 0.08%.
Defendant testified that at 8:15 a.m. on February 11, 2010, he had to drive a friend to Monroe. He admitted to drinking rum and cokes from 10:00 p.m. the night before until 5:00 a.m. on the morning of the accident. He could not, however, recall how many drinks he consumed. Defendant also stated he had taken a Percocet the day before the accident.
Defendant further testified that he suffered from problems with his esophagus and was under the care of Dr. Plumser, who had diagnosed defendant as having Barrett's Esophagus and acid reflux syndrome. Due to these conditions, defendant could silently burp up to twenty times a day, though he noted that he flinches when he burps, which an onlooker could observe. Defendant also reported that he had hammertoes on both feet as well as a crushed big toe that did not heal properly. Defendant said that he failed the sobriety tests because of the problems with his feet.
Gary L. Lage, Ph.D. (Dr. Lage), testified on behalf of defendant. The municipal court judge admitted Dr. Lage as an expert in toxicology, but ruled that Dr. Lage's expertise in that field did not allow him to testify as to how defendant's esophageal conditions would affect the operation of the Alcotest machine.
The municipal court judge issued a decision from the bench. The municipal court judge found both Officer Mayo's testimony and Dr. Lage's testimony to be credible; however, the judge noted that Dr. Lage's testimony was "severely limited in its value." The municipal court judge stated that he was persuaded by defendant's testimony that he had been drinking for a significant period of time the night before the accident.
The municipal court judge additionally stated he was persuaded "by the fact that [defendant] told . . . the truth in regard to his drinking. He [did not] say he had one beer or two beers, [and] he said he [did not] know what he had to drink." The municipal court judge found, however, that the other aspects of defendant's testimony were "suspect."
The municipal court judge determined that the State had established all of the requirements under State v. Chun, 194 N.J. 54 (2008), for admission of the results of the breath tests had been met. Accordingly, the municipal court judge found that the State had proven beyond a reasonable doubt that defendant had operated a motor vehicle while under the influence of an intoxicating liquor based on both the results of the Alcotest and Officer Mayo's observations. The judge also found defendant guilty of driving under the influence of an intoxicating liquor in a school zone, careless driving, and failing to present an insurance card.
The municipal court judge sentenced defendant to a mandatory sentence of 180 days in the Middlesex County jail, and suspended defendant's driving privileges for twenty years. The municipal court judge required defendant to install an interlock device in his car six months prior to the date he would be eligible to regain his license, and required the defendant to use the device for three years. The judge also imposed various monetary penalties. Defendant sought review in the Law Division, which stayed the sentence pending appeal.
Defendant's appeal was heard on April 1, 2011. The Law Division judge found that the State had proven defendant's guilt beyond a reasonable doubt. The Law Division judge stayed the imposition of the 180-day jail term and reduced defendant's loss of driving privileges from twenty years to ten years. The Law Division judge imposed a $1,000 fine, a $100 Drunk Driving Enforcement Fund surcharge, a $100 driving-under-the-influence surcharge, a $6 fee, $33 in court costs, a $75 Safe Neighborhood Services Fund, and a $50 Violent Crimes Compensation Board assessment. The Law Division judge stayed all of the fines imposed, except for the suspension of defendant's driving privileges, pending appeal.
Defendant argues that Officer Mayo did not have probable cause to arrest him. He contends that the happening of a motor vehicle accident, the "mere smell" of alcohol, and the officer's observations were not sufficient, individually or cumulatively, to establish probable cause for an arrest. We do not agree.
The Constitutions of the United States and New Jersey protect citizens from unreasonable searches and seizures. State v. Mann, 203 N.J. 328, 337 (2010)(quoting State v. Amelio, 197 N.J. 207, 211 (2008)). The courts have recognized three types of police-citizen encounters, specifically the field inquiry, an investigative stop, and an arrest. State v. Nishina, 175 N.J. 502, 510-11 (2003). Probable cause is required for an arrest. Id. at 511.
"'Probable cause exists if at the time of the police action there is a well-grounded suspicion that a crime has been or is being committed.'" Id. at 515 (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). That "may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion." State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985) (citing State v. Davis, 50 N.J. 16, 23-24 (1967), cert. denied, 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968); State v. Burnett, 42 N.J. 377, 386-87 (1964)).
Accordingly, the "yardstick for making the arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer 'had reasonable grounds to believe' that the driver was operating a motor vehicle" while under the influence of intoxicating liquor. Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967).
Defendant maintains that the Law Division erred by relying upon N.J.S.A. 39:4-50(a)(3) as a basis for finding that Officer Mayor had probable cause to make the arrest. The statute provides:
Whenever an operator of a motor vehicle has been involved in an accident resulting in death, bodily injury or property damage, a police officer shall consider that fact along with all other facts and circumstances in determining whether there are reasonable grounds to believe that person was operating a motor vehicle in violation of this section.
However, in finding that Officer Mayo had probable cause for the arrest, the Law Division judge did not rely solely upon the fact that defendant had been involved in a motor vehicle accident.
The judge noted that under N.J.S.A. 39:4-50(a)(3), the fact that an operator of a motor vehicle has been involved in an auto accident does not alone establish probable cause for an arrest.
Rather, the judge correctly stated that involvement in an accident was merely one factor to be considered as part of the totality of circumstances in determining whether defendant had been operating a motor vehicle in violation of N.J.S.A. 39:4-50.
The Law Division judge noted that defendant smelled of alcohol. Defendant told the officer he had consumed alcohol, and he failed the HGN test. Defendant spoke in a slurred and slobbering manner. His eyes were bloodshot, and watery. He also had dried, runny yellow mucous between his upper lip and nose.
We are satisfied that Officer Mayo's observations, along with the fact that defendant had been involved in an automobile accident, were sufficient to provide him with a well-grounded suspicion that defendant had been operating his vehicle under the influence of intoxicating liquor. The Law Division correctly determined that the officer had probable cause for the arrest.
Defendant argues that the fact that Officer Mayor detected the smell of alcohol emanating from his body was insufficient to establish probable cause for an arrest. Defendant also argues that the officer's observations were too limited in scope to support a finding of probable cause. Whether these factors alone would have been sufficient to establish probable cause is beside the point.
The officer detected the smell of alcohol emanating from defendant's body. Defendant spoke in a slurred and slobbering manner. His eyes were bloodshot and watery. He had yellow mucous struck between his nose and upper lip. We are satisfied that, when these facts are viewed in the totality of the circumstances, Officer Mayo had probable cause to arrest defendant.
Next, defendant argues that he was denied the effective assistance of trial counsel. He maintains that his attorney was deficient because he did not:
1) move to suppress evidence based on the alleged lack of probable cause for the arrest;
2) retain defense expert Gilbert Snowden to support a motion to suppress evidence based on the lack of probable cause for an arrest and to raise reasonable doubt as to whether he could be convicted based on physical observations alone;
3) present medical reports of his prior foot injuries;
4) retain a defense medical expert to challenge the physical observations and raise reasonable doubt as to those observations;
5) object to the introduction of the Alcotest foundational documents since the Spotswood police officer allegedly could not authenticate them; and
6) ask defendant if he burped, belched or aspirated prior to or during the administration of the Alcotest.
To establish a prima facie case for ineffective assistance of counsel, a defendant must show a reasonable likelihood of success under the two-part test first articulated by the Supreme Court of United States in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), which our Supreme Court later adopted in State v. Fritz, 105 N.J. 42, 58 (1987).
The Strickland/Fritz test requires the defendant to show
(1) that the representation by his attorney fell below an objective standard of reasonableness and (2) that, but for counsel's errors, the results of the proceeding would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 58.
"Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). We are convinced that defendant's claims of ineffective assistance of counsel should be raised in a petition for post-conviction relief, particularly where, as here, defendant is relying upon evidence and facts that lie outside the trial record. Accordingly, we will defer consideration of defendant's ineffective-assistance-of-counsel claims.