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State of New Jersey v. Joseph L. Morabito

October 24, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH L. MORABITO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-14-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 24, 2012

Before Judges Sabatino and Fasciale.

Defendant Joseph L. Morabito appeals from his convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50; failure to maintain a lane, N.J.S.A. 39:4-88b; and failure to exhibit documents, N.J.S.A. 39:3-29a.*fn1 Defendant argues that the State violated his constitutional right to a speedy trial. We disagree and affirm.

In the late evening of January 15, 2010, a Franklin Lakes patrolman stopped defendant's motor vehicle and, suspecting defendant may have been intoxicated, transported defendant to the police department for breath samples. Because the Franklin Lakes Police Department's Alcotest malfunctioned, the patrolman transported defendant to the Wyckoff Police Department, where the Alcotest operated properly.*fn2 On January 16, 2010, the patrolman arrested defendant and charged him with the offenses.

The Borough of Franklin Lakes lacked a permanent municipal court judge between January 1, 2010 and April 1, 2010, at which point Francis J. Leddy, Jr., became the judge. On January 21, 2010, defendant requested discovery from the municipal prosecutor for, among other things, Alcotest data downloads. On April 8, 2010, defendant appeared in court to set a date for motions and trial. On April 22, 2010, defendant moved to compel discovery. Judge Leddy then ordered the prosecutor to produce the discovery within fifteen days. By letter dated May 6, 2010, the prosecutor advised defendant that the State was unable to provide the materials until mid-May because Franklin Lakes personnel needed more time to get the test results from the Wyckoff Police Department. Defendant agreed to extend the deadline to June 1, 2010, and the prosecutor produced the discovery.

Trial was initially scheduled for October 20, 2010; however, the judge adjourned the date because the State was unable to produce one of its witnesses. On November 8, 2010, defendant moved for the first time to dismiss his charges contending that the State violated his constitutional right to a speedy trial, U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. Defendant also moved to suppress the Alcohol Influence Report (AIR) on grounds that officers should have delivered the AIR at the time of arrest and that officers used an incorrect temperature probe; and he also moved to dismiss on grounds that the police lacked probable cause to arrest him. On November 16, 2010, defendant and the prosecutor were ready to proceed in municipal court. Both parties agreed, however, to an adjournment to brief an issue pertaining to the AIR.

On December 14, 2010, Judge Leddy conducted oral argument and denied defendant's speedy trial motion and his motion to suppress the AIR for failure to deliver the AIR at the time of arrest. Because defendant's expert was absent, the judge adjourned argument on the probable cause and incorrect temperature probe issues.

On March 8, 2011, Judge Leddy conducted oral argument on defendant's adjourned motion to suppress the AIR and his request to reconsider the speedy trial motion to dismiss. The judge denied the reconsideration motion and rejected defendant's contention that officers used a proper temperature probe. Because the State's subpoenaed expert witness was unavailable, the judge adjourned argument on defendant's contention that the State failed to list the serial numbers and probe values of the temperature probes. On March 29, 2011, the judge denied defendant's motion to suppress the AIR and proceeded to try the case.

Judge Leddy dismissed the reckless driving charge, and found defendant guilty of DWI, failure to maintain a lane, and failure to exhibit documents. The judge sentenced defendant to the appropriate fines and penalties, imposed a two-year driver's license suspension,*fn3 a one-year ignition interlock device, and two days in an intoxicated driver resource center program. Defendant appealed to the Law Division and contended that Judge Leddy erred by denying his speedy trial motion.

On October 4, 2011, Judge Edward A. Jerejian, J.S.C., conducted a trial de novo, issued a twelve-page written opinion, and applied the four speedy trial balancing factors enunciated in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972), see also State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999) (applying Barker factors to driving under influence of intoxicants case). Judge Jerejian denied the speedy trial motion and sentenced defendant to the same fines and penalties imposed by Judge Leddy.*fn4 This appeal followed.

On appeal, defendant raises the following point:

THE LAW DIVISION ERRED BY DENYING DEFENDANT'S MOTION TO DISMISS BECAUSE DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED WHEN HE TOOK AFFIRMATIVE STEPS TO BRING HIS MATTER TO TRIAL, BUT DUE TO A COMBINATION OF FACTORS, NONE OF WHICH ARE ATTRIBUTABLE TO DEFENDANT, HIS MATTER DID NOT PROCEED ...


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