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State of New Jersey v. Glenn Vanderkooy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 recently analyzed this test in a DWI conviction in Tsetsekas and noted that no single element of the Barker test is a "necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Tsetsekas, supra, 411 N.J. Super. at 10.

Although there is no fixed length of time that automatically triggers an excessive delay, municipal courts must "strive to assure prompt prosecution of DWI matters." Id. at 11. We recognize that each case involves its own unique circumstances concerning the length of delay. State v. Smith, 131 N.J. Super. 354, 362 (App. Div. 1974) aff'd o.b., 70 N.J. 213 (1976).

Delays in prosecution will be given different weight depending on the exact reason for the delay. Barker, supra, 407 U.S. at 530-31, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Intentional delays for the purpose of gaining a tactical advantage over a defendant weigh heavily against the state. Ibid. Neutral reasons, such as over crowdedness or a missing witness, weigh less heavily on the state but should still be considered. Ibid. Moreover, a defendant's requests or conduct that results in a delay typically will not support a speedy trial violation claim. State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999).

Here, the municipal court judge denied defendant's motion to dismiss for a speedy trial violation on February 17, 2010. He noted that both parties had scheduling issues, the court had to conduct a Frye hearing (a hearing that the judge had never previously conducted because prior speeding cases were based on the K-55 radar system), the State had to fly their expert to New Jersey from Texas, and the Frye hearing was heard immediately before the holidays, which postponed subsequent hearings until the next year. He further acknowledged that although defendant experienced late requests or late production, such delays are common in municipal court. None of the State's delays appear to be intentional or for the purpose of gaining a tactical advantage over defendant. Moreover, the State was not solely responsible for the delays. Defendant requested schedule changes and did not inquire about a Frye hearing until July, four months after he was charged.

In the Law Division, Judge Philip J. Maenza concluded that the State was unprepared on four occasions and therefore responsible for the adjournments. However, he emphasized the unusual circumstances of the case in that our courts had not yet established the scientific reliability of the radar device at issue. Although the State was responsible for the four adjournments, the entirety of the circumstances indicate that neither party is wholly to blame for the overall delay.

Pursuant to the Barker test, a defendant may be prejudiced by loss of employment, humiliation and anxiety, and costs of continued representation. Tsetsekas, supra, 411 N.J. Super. at 13. Actual trial prejudice is not required for a speedy trial violation. Merlino, supra, 153 N.J. Super. at 17.

Here, although defendant drives for a living, he has not yet lost his driving privileges. There is no indication that defendant experienced employment repercussions as a result of the delay. Defendant argues that he has suffered psychologically due to stress, and financially because he has had to produce and pay his expert for two hearing dates in July 2009, but we are not persuaded. Both parties are responsible for various delays, whether due to scheduling conflicts, discovery delays, or requesting the Frye hearing. The amount of time elapsed is mostly due to the Frye hearing, and defendant did not prove prejudice sufficient to warrant a speedy trial violation.

Defendant also contends:

THE DEFENDANT WAS IMPROPERLY DENIED DISCOVERY PRIOR TO THE HEARING ON THE ADMISSION OF THE RADAR EVIDENCE.

We disagree.

Defendant argues that the State did not provide him with his requested discovery. On September 2, 2009, defendant asked for information on the radar's repairs, recalls, and the manufacturer's technical service bulletins. On December 2, 2009, the State alerted defendant that Stalker never had a recall, and that the State was still waiting to hear if there were documents beyond the manual. The State told defendant that Lincoln Park does not keep a repair log, and further, that Lincoln Park does not possess any other documents pertaining to defendant's request.

Defendant also challenges the State's radar gun expert Steven Hocker's testimony. Pursuant to Rule 7:7-7(b)(11), the State must provide a defendant with: the names and addresses of each person whom the prosecuting attorney expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of the expert witness, or if no report was prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Defendant contends that the State did not provide such information, and he was therefore unable to properly prepare and cross-examine the expert. Not only did the State provide Hocker's resume and qualifications, but also a summary of what Hocker planned to discuss and rely on. A review of the record shows that the State acted in accordance with Rule 7:7-7(b)(11), and defendant did not experience an unfair trial due to these alleged discovery non-compliances.

Defendant also contends:

INSUFFICIENT PROOF OF THE SCIENTIFIC RELIABILITY OF THE RADAR DEVICE WAS PRESENTED BY THE STATE.

Defendant argues that the Frye hearing failed to demonstrate the radar gun's reliability. We disagree.

In a criminal case, a proponent must establish general acceptance, and thereby reliability, of scientific testimony either by:

(1) expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis;

(2) authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and

(3) by judicial opinions that indicate the expert's premises have gained general acceptance. [State v. Kelly, 97 N.J. 178, 210 (1984) (citing State v. Cavallo, 88 N.J. 508, 521 (1982)).]

Here, Hocker gave extensive testimony regarding the Stalker Dual SL radar device. Hocker has testified in forty-three states as a qualified police radar expert over one hundred thirty times. The unit is sold in forty-nine states, overseas and in Canada. Hocker stated that the Stalker device used is on the Conforming Products List (CPL), a list of independently tested and reviewed products on which police radar experts rely. He relied on Dr. Alan Katz's study conducted for the New Jersey Department of Transportation. Although Dr. Katz studied the Stalker DSR 2x, it is essentially the same unit as the Stalker Dual SL with an added feature of a direction sensor. Dr. Katz concluded that the radar devices adhered to the National Highway and Traffic Safety Administration standards. Dr. Katz's report is regularly relied upon by those in Hocker's field.

Additionally, Hocker spent over two hundred hours field and bench testing the Stalker Dual SL radar unit. He examined the actual unit used by Ruggerio and concluded it worked correctly. Hocker stated that Ruggerio properly demonstrated how he tested the device's tuning forks. The record provides adequate, sufficient and credible evidence to support the finding that the Stalker Dual SL is scientifically reliable.

Defendant also contends:

THE RADAR READING SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE DUE TO LACK OF PROOF THAT THE RADAR OPERATOR WAS PROPERLY TRAINED AND LACK OF FOUNDATIONAL EVIDENCE OF THE PROPER OPERATION OF THE RADAR UNIT.

We disagree.

Defendant argues that Ruggerio was not trained on the Stalker radar gun and therefore the radar readings cannot be relied upon. In State v. Wojtkowiak, 174 N.J. Super. 460, 463 (App. Div. 1980), we set forth the foundation necessary to admit radar readings. The State must present "(1) the specific training and extent of experience of the officer operating the radar, (2) the calibration of the machine in which at least two external tuning forks both single and in combination should be employed, and (3) the calibration of the speedometer of the patrol car." Ibid.

Here, Ruggerio was a thirteen-year veteran of the Lincoln Park Police Department. He trained for at least eighty hours to achieve his radar certification, including visual speed operation training, and is re-certified every two years. He received training specifically for operating the Stalker Dual SL device from an instructor in Lincoln Park.

On the day of defendant's arrest, Ruggerio was certified by New Jersey to operate radar devices. At the beginning of his shift the night of defendant's arrest, Ruggerio tested the tuning forks in both stationary and moving mode, and ran a self-test on the device. He ran the same tests at the end of his shift. The device passed the test both times.

Defendant argues that the radar device could not have accurately detected his speed due to the distance between the cars. The State's expert testified that if defendant's car was outside of the radar's range, it would not have even picked up a signal or reading. Here, the device first alerted Ruggerio that something was traveling faster than objects around it and then gave a speed reading. Because the radar gun registered defendant's car and provided a speed reading, the vehicle was clearly within the radar device's range.

Defendant also challenges the fact that at trial Ruggerio refreshed his memory of a testing log. Defendant argues that the State refreshed Ruggerio's memory as to whether he tested the radar device that evening using a document that may not have been prepared contemporaneously with the testing. However, the transcript of the hearing reveals that Ruggerio was refreshing his memory as to the device and the tuning fork's serial numbers, not whether he actually tested the radar device as defendant contends. Ruggerio stated that he routinely executes the same sequence of actions in testing his radar device every time he begins and ends a shift. The officer did not need to be refreshed on such information. Defendant cannot argue that in refreshing Ruggerio's memory on the serial numbers, the State violated the rules of evidence with regards to Ruggerio's testimony about testing the radar device.

Defendant also argues that the Calibration Certification was wrongly admitted to evidence pursuant to N.J.R.E. 803(c). The rule states that a writing or other record of events made contemporaneously or soon after the actual events occur, based on one's actual knowledge or information supplied by someone with actual knowledge in the regular course of business, is an exception to hearsay. N.J.R.E. 803(c).

At trial, Officer Ronald Wenzel testified that it is his responsibility to file and maintain the police station's business records, such as the calibration certificate. He stated that R&R Radar would come to department headquarters, calibrate the radar devices, and provide the department with calibration certificates, which Wenzel would then file. Ruggerio's device was calibrated and certified on January 21, 2009. Wenzel's testimony provided sufficient information to admit the certificate.

Defendant also contends:

THE OFFICER'S TESTIMONY OFFERED IN THE PROBABLE CAUSE HEARING WAS NOT CREDIBLE AND THEREFORE SHOULD BE DISREGARDED.

We are not persuaded.

Appellate courts should defer to the trial judge's credibility determinations because the judge has a unique opportunity to observe the witness. State v. Locurto, 157 N.J. 463, 474 (1999). Where the municipal court and Law Division conclude on factual issues, we generally refrain from disrupting the factual and credibility findings, absent clear and obvious error. Ibid.

Here, both the municipal and trial judge found Ruggerio credible. Defendant cannot establish that the judges erred or that Ruggerio's testimony was so obviously and exceptionally unbelievable.

Lastly, defendant argues:

THE OFFICER DID NOT HAVE PROBABLE CAUSE TO ARREST THE DEFENDANT FOR A VIOLATION OF THE DRIVING WHILE INTOXICATED STATUTE AND THE CHARGE OF REFUSAL TO TAKE A [BREATHALYZER] TEST SHOULD BE DISMISSED.

THERE WAS INSUFFICIENT EVIDENCE THAT THE DEFENDANT WAS GUILTY OF A VIOLATION OF N.J.S.A. 39:4-50.

We reject these arguments.

N.J.S.A. 39:4-50 states that:

(a) Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operating a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood . . . shall be subject:

(1) For the first offense, to a fine of not less than $250.00 nor more than $400.00 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours a day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this state for a period of not less than six months nor more than one year.

Arresting someone for this violation requires probable cause. Conviction for violation of this statute is quasi-criminal and requires proof of guilt beyond a reasonable doubt. State v. DiSomma, 262 N.J. Super. 375 (App. Div. 1993). There can be sufficient evidence of proof beyond a reasonable doubt, even without a blood alcohol analysis, based on the arresting officer's observations. State v. Oliveri, 336 N.J. Super. 244 (App. Div. 2001) overruled on other grounds by State v. Clancaglini, 411 N.J. Super. 280 (App. Div. 2010).

Based on Ruggerio's observations and defendant's conduct, it is clear that probable cause to arrest existed, and the State established beyond a reasonable doubt that defendant is guilty of DWI. Ruggerio first noticed that defendant took longer than normal to pull over. Defendant's slurred speech, bloodshot eyes, odor of alcohol, wet stain, and slow movements were immediately obvious to Ruggerio. Upon further questioning, defendant denied drinking any alcohol, and when asked twice where he was coming from, defendant responded with two different answers. Defendant next failed to accurately recite the alphabet.

Although defendant argues that the field sobriety tests cannot be fully relied on because of defendant's weight, they clearly contributed to Ruggerio's already founded suspicion that defendant was intoxicated. Unrelated to defendant's weight, he kept putting his hands in his pockets even though Ruggerio instructed him to keep his arms at his side. Ruggerio instructed defendant not to begin the test until given permission; however, defendant began walking immediately after that. Defendant did not follow Ruggerio's instructions on how to count during the one-leg stand test, which is also unrelated to his weight. When asked to tilt his head back, defendant simply gazed upwards. Defendant's actions, along with his physical appearance, gave Ruggerio probable cause to believe that defendant was driving while intoxicated.

Affirmed. Defendant must appear at the Morris County criminal case manager's office no later than September 14, 2012, in order to make arrangements to surrender his driver's license and serve any other part of the sentence that was stayed.


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