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State of New Jersey v. Glenn Vanderkooy

September 5, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GLENN VANDERKOOY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-083.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 17, 2011

Before Judges A. A. Rodriguez and Fasciale.

Defendant, Glenn Vanderkooy, was convicted of three motor vehicle violations in the Law Division at a trial de novo based on the record developed in the Municipal Court of Lincoln Park Borough. These were: driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to take a breathalzyer test, N.J.S.A. 39:4- 50.2; and speeding, N.J.S.A. 39:4-98. Judge Philip J. Maenza imposed the following sentence on the DWI conviction: a $250 fine, $33 in costs, a $50 V.C.C.A. penalty, a $75 Safe Neighborhood fine, $200 in DWI surcharges, $6 in fines, a three month driver's license suspension, and twelve hours attendance at an Intoxicated Driver Resource Center program. For the refusal charge, the judge imposed a $300 fine, $33 in costs, and a seven month license suspension to run concurrent to the DWI suspension. For the speeding charge, defendant was sentenced to a $114 fine, $33 in costs, and a $6 fine. We affirm the convictions and sentence.

These are the salient facts. On March 13, 2009, Lincoln Park Borough Patrolman Russell Ruggerio was traveling southbound on Route 202 when his vehicle's Stalker Dual SL model radar detection device flashed, which typically indicates that a vehicle is approaching faster than other traffic. Ruggerio observed defendant driving towards him and estimated defendant's speed to be about sixty-two miles per hour. The speed limit on Route 202 is forty-five miles per hour.

Ruggerio turned around to travel northbound on Route 202 towards defendant's car. The officer maintained a visual of the vehicle and activated his overhead lights behind the defendant on Ryerson Road. He saw that it took a long time for defendant to pull over. After he approached defendant's car and asked for his credentials, the officer noted that defendant's speech was slurred, he was slow to respond and was fumbling with his documents. He recognized that defendant's eyes were "bloodshot." While approaching the car, Ruggerio recognized an odor of alcohol, and that the vehicle's front windows were down. The officer also noticed that the zipper on defendant's pants was undone and his pants were wet surrounding his crotch. Defendant denied ingesting any alcohol. Defendant first said he was coming from a restaurant in Boonton, but then claimed he had just left a restaurant in Towaco.

Ruggerio asked defendant to recite the alphabet. Defendant recited half of the alphabet, during which his speech was slurred. He stopped in the middle of the alphabet and asked Ruggerio if he should keep going. Ruggerio responded yes, and allowed defendant to begin from the beginning. When defendant reached the middle of the alphabet, his recitation began to get jumbled. Ruggerio concluded defendant did not successfully complete the recitation.

Ruggerio asked defendant to step out of his car so he could administer field sobriety tests. The officer used his flashlight to provide additional lighting. Ruggerio asked defendant to complete the walk-and-turn test. Ruggerio told defendant not to start until he was prompted. Defendant, however, started the test before being instructed to do so. He walked with his hands in his pockets, not with his arms at his sides as instructed. Defendant also did not walk heel-to-toe as instructed. He walked nine steps forward, turned around and took nine steps back while looking down at the sidewalk.

Ruggerio next administered the one-leg stand test. Ruggerio instructed defendant to stand with his hands at his sides with his feet together. Defendant was told to raise his foot six inches and count to thirty seconds by the thousands,

i.e., one-one thousand, two-one thousand. Ruggerio took into account that defendant weighed about 300 pounds. Defendant raised his foot for about two seconds and did not count as instructed.

Ruggerio then administered a third test because of defendant's weight. He asked defendant to complete the tilt test by tilting his head back and looking up. Defendant, however, solely looked up with his eyes. Ruggerio concluded that defendant was intoxicated based on his speeding, the length of time it took defendant to pull over, his movements in the vehicle, the odor of alcohol, his bloodshot eyes, their conversation, the fact that he appeared to have urinated on himself, and the results of the field sobriety tests. Ruggerio arrested defendant for driving while intoxicated and transported him to the police station.

At police headquarters, Ruggerio noted that defendant still had bloodshot eyes, slurred speech and was moving slowly. Twice, defendant refused to take a breathalyzer test.

Leading up to trial in the municipal court, defendant made numerous discovery requests for the production of information on the radar device Ruggerio used. On December 17, 2009, the municipal court held a Frye hearing*fn1 at which the State's expert witness, Steven Hocker,*fn2 testified about the radar device used. The municipal court judge concluded that the Stalker Dual Radar was scientifically reliable.

On appeal, defendant contends:

THE STATE UNREASONABLY AND UNJUSTIFIABLY DELAYED PROSECUTION OF THIS MATTER AND THE DEFENDANT IS ENTITLED TO DISMISSAL OF ALL CHARGES FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL.

We disagree.

A trial court's finding whether a defendant was denied the right to a speedy trial should not be overturned unless it is "clearly erroneous." State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).

The Sixth Amendment of the United States Constitution guarantees the right to a speedy trial and is applied to the states through the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7-8 (1967). The right to a speedy trial attaches when a defendant is arrested. State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009). The New Jersey Supreme Court identified four elements, previously spelled out by the United States Supreme Court, to be balanced when determining whether a speedy trial violation occurred. State v. Szima, 70 N.J. 196, 200-01, cert. denied sub nom. Szima v. New Jersey, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976); Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The factors are the length of the delay, the reason for the delay, if the defendant asserted his right to a speedy trial, and the accrued prejudice against defendant due to the delay. Szima, supra, 70 N.J. at 201. We ...


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