June 19, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ROBERT SHIELDS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2013
On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 22-10.
Edward J. Crisonino, attorney for appellant.
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the brief).
Before Judges Hayden and Hoffman.
Following a trial de novo in the Law Division, defendant Robert Shields appeals his convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a); and for refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a. We affirm.
On August 23, 2009, Officer James Hartwell of the Delaware River Port Authority police arrested defendant and issued him summonses for DWI; refusing to submit to a breathalyzer test; and failing to drive within a single lane, N.J.S.A. 39:4-88(b). On May 7, 2010, after trial in the Camden City Municipal Court, defendant was convicted of all three charges.
At sentencing, the municipal court merged the conviction of failure to maintain lanes with the DWI conviction. On the DWI conviction, the court suspended defendant's driving privileges for three months. On the refusal conviction, the court suspended defendant's driving privileges for seven months, concurrent with the suspension imposed on the DWI conviction.
On June 9, 2011, the Law Division again found defendant guilty of all three charges, and imposed the same sentence as the municipal court.
The following facts are derived from the trial record. Defendant was pulled over on August 23, 2009 at 2:40 a.m. after crossing the Ben Franklin Bridge into Camden. While crossing the bridge, Officer Hartwell observed him swerve out of his lane about "[a] half a dozen times or so." The officer detected an odor of alcohol and observed defendant to have blood shot eyes, slurred speech, a staggering walk, an inability to stand straight, and that he was grabbing for balance. After defendant failed field sobriety tests, he was transported to police headquarters for the Alcotest. Defendant failed to provide adequate breath samples on the first four attempts to administer the Alcotest. Nevertheless, the officer offered to allow him to take a fifth test, at which time defendant refused to provide any more breath samples, stating "I'm not doing this anymore." Defendant did not testify. Officer Hartwell testified that defendant did not make a good faith attempt to provide an adequate breath sample. The judge specifically found the testimony of Officer Hartwell to be credible in explaining the basis for his decision.
Before the Law Division, defense counsel submitted a letter brief asserting two claims of error:
POINT ONE: THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT REFUSED TO GIVE AN ADEQUATE SAMPLE.
POINT TWO: WITHOUT A BREATHALYZER READING THERE IS INSUFFICIENT EVIDENCE OF INTOXICATION.
Defendant's letter brief consisted of a one-page "statement of facts" and a half-page "legal argument." Significantly, the letter brief included no citation or discussion of any cases and otherwise failed to meaningfully discuss or review the evidential record.
Based upon the minimal brief from defense counsel, it appears the Law Division judge assumed that counsel was submitting the case for decision without argument. After the court called the case, and both counsel entered their appearances, the judge stated, "The Court has had an opportunity to review the trial transcript at the Municipal Court level, as well as the briefs submitted by counsel with respect to this appeal. And the Court is prepared to render its decision." At that point, counsel failed to note an objection or otherwise inform the court of his desire to present oral argument.
Before us, defense counsel asserts the following claim of error:
THE DEFENDANT'S APPEAL WAS HEARD IN A PRO FORMA MANNER IN VIOLATION OF THE NEW JERSEY COURT RULES.
Defendant's appellate brief contains one page of legal argument in support of the argument that the proceeding in the Law Division was a "meaningless formality." Counsel cites no authority to support his contention. He also fails to acknowledge or address that he failed to object or otherwise alert the Law Division that he wanted the opportunity to present oral argument.
Appeals from the municipal court to the Law Division are de novo. R. 3:23-8. The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The Law Division judge must make his or her "own findings of fact." State v. Ross, 189 N.J.Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983).
Our scope of review is limited. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the Law Division] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J. 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] should appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162.
We long ago emphasized the importance "that the trial judge be made aware of the reasons for objection to judicial action or conduct and that the record reflect this if the matter is to be adequately preserved on appeal." State v. Melton, 136 N.J.Super. 378, 381 (App. Div. 1975). "Parties are at liberty at any time to bring a substantial objection to the attention of the court, but . . . objections must be timely." Bray v. Gross, 16 N.J. 382, 387-88 (1954) (internal quotation marks and citations omitted).
Under Rule 1:7-2, in order to preserve a question for appeal, "a party, at the time the ruling or order is made or sought, shall make known to the court specifically . . . the party's objection to the action taken and the grounds therefor." The objection must be made in understandable legal terms in order to preserve the issue for appellate review. Kurak v. A.P. Green Refractories Co., 298 N.J.Super. 304, 328 (App. Div.), certif. denied, 152 N.J. 10 (1997).
In State v. Williamson, 125 N.J.Super. 218, 219 (App. Div. 1973), the defendant appealed his convictions of motor vehicle violations in the municipal court following a trial de novo on the record in the county court. We found no abuse of discretion where the court limited counsel to a fifteen-minute argument "inasmuch as the judge indicated that he had already read the transcript. Moreover, counsel failed to object to the time limit imposed by the judge." Ibid.
While we expect the Law Division to allow argument on a trial de novo, the record does not indicate that the trial judge refused to allow argument; instead, the record indicates at worst a misunderstanding. Given the overwhelming evidence of defendant's guilt, and the limited brief submitted by defendant, we do not discern any mistaken exercise of discretion in the manner the judge conducted the trial de novo.
Because defendant did not raise this issue before the trial judge, we apply the plain error standard, which requires reversal only if the error was "clearly capable of producing an unjust result[.]" R. 2:10-2. Defendant does not point to any error in the judge's findings or conclusions, any inaccuracies or any specific violation of a statute or rule. Even if there were error in not hearing argument, defendant does not show how the lack of argument led the court to reach a verdict it might not otherwise have reached.
Having reviewed defendant's arguments on appeal in light of the record before us, we find them to be without merit and not warranting extended discussion in a written opinion R 2:11-3(e)(2) We affirm for the reasons set forth in the Law Division judge's oral opinion We add only the following
Where there is no blood alcohol reading proof of a driver's intoxication typically consists of proof through the testimony of a police officer with respect to his or her observations of the defendant State v. Weber, 220 N.J.Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987). A police officer is permitted to give lay opinion testimony as to whether a defendant was under the influence of alcohol State v. Bealor, 187 N.J. 574, 585 (2006) (holding that "because sobriety and intoxication are matters of common observation and knowledge New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication") Here the testimony of Officer Hartwell including the results of the field sobriety tests clearly supported the findings made by the Law Division judge