August 7, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DEMETRIOS V. PETTAS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 25, 2012
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 11-35.
Scott A. Gorman argued the cause for appellant (The Gorman Law Firm, attorneys; Mr. Gorman, of counsel and on the brief).
Annmarie Cozzi, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief).
Before Judges Fuentes, Harris, and Koblitz.
Defendant Demetrios V. Pettas appeals from his July 14, 2011 conviction of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50, after a trial de novo in the Superior Court.
Defendant was stopped at a roadblock and arrested for DWI on August 14, 2010. Defendant argues that the trial court improperly admitted evidence regarding the propriety of the roadblock, that the roadblock itself was invalid, that he was denied a speedy trial, and that there was insufficient evidence to support his conviction. We affirm.
These are the relevant facts. At approximately 3:09 am on August 14, 2010, defendant was stopped at a DWI roadblock established by the County of Bergen and Paramus Police Department on Paramus Road in the Borough of Paramus. Officers of the Paramus Police Department stopped every vehicle that came to the roadblock.
After directing defendant's vehicle to stop at the roadblock, officer Steven Nepola of the Paramus Police Department approached defendant and immediately detected an odor of alcoholic beverage on his breath. At Nepola's instruction, defendant stepped out of his car and submitted to several field sobriety tests.
Nepola first administered the One Leg Raised test, during which defendant was supposed to stand with his feet together and raise one foot approximately six inches off the ground for ten seconds. During his first attempt, defendant lost his balance after four seconds. Defendant completed the test on his second attempt, but, according to Nepola, "swayed from side to side to keep his balance." Nepola then administered the Walk and Turn test, during which defendant was supposed to take nine heel-to-toe steps forward in a straight line, turn, and take nine heel-to-toe steps back. Nepola testified that, despite being instructed to do so, defendant failed to count his steps aloud, that he "was leaning side to side" to maintain his balance, and that he could not walk in a straight line. Nepola also instructed defendant to recite the first half of the alphabet, through the letter "N, " without singing. Defendant twice failed to recite the letters of the alphabet, both times repeating letters out of order and trailing off in a "mumbling" fashion.
Defendant argues that Nepola improperly administered the field sobriety tests, undermining their validity. We disagree. In connection with the field sobriety tests, Nepola made multiple personal observations of defendant which he recorded in a DWI observations report shortly after the incident and filed with the Paramus Police Department. Specifically, Nepola observed: an odor of alcohol on defendant's breath, that his eyes were bloodshot, his face appeared flushed, his speech was whispered and slurred, and he was swaying, staggering, and "continual[ly] leaning for balance."
Nepola arrested defendant and transported him to the Bergen County Police Department. Although defendant was administered an Alcotest, the State proceeded against defendant solely on the arresting officer's observations.
Defendant first appeared before the municipal court on August 16, 2010, only two days after his arrest. On that date, the municipal court judge scheduled the matter for trial on September 13, 2010, to afford defendant an opportunity to retain counsel. Despite this, the case was not heard until October 4, 2010. The municipal court adjourned the trial until October 25, 2010, because the State had not responded to defendant's discovery request. When the State again failed to honor defendant's discovery request by October 25, 2010, defendant filed a motion to compel discovery.
When defendant next appeared before the municipal court on November 22, 2010, the State had provided all discovery except documentation attesting to the Alcotest calibration. The municipal court ordered the State to produce the outstanding discovery by December 31, 2010, and adjourned the matter until January 10, 2011. On that date, the trial was again adjourned, because the State had not provided defense counsel the Alcotest calibration documentation.
Within the discovery that the prosecution did supply was a roadblock justification certification dated August 6, 2010. The certification authorized the establishment of the roadblock on Paramus Road from midnight through 4:00 am on August 14, 2010. It provided as follows: "The purpose of this checkpoint is to detect and apprehend drivers who are under the influence of alcohol and/or drugs as well as to act as a deterrent to other drivers from driving under the influence in the future." The certification set forth the location of the roadblock in great detail and discussed both the population of the surrounding area and the availability of alcohol in the area. It stated that "[t]wo previous sobriety checkpoints conducted at this location have resulted in 5 DWI arrests, and 3 drug related arrests. Since January 1st, 2009 the Bergen County Police Department has made 24 DWI arrest[s] in the vicinity of the proposed checkpoint."
Defendant was tried before the municipal court on March 11, 2011, and April 15, 2011. Unable to comply with defendant's discovery request concerning the calibration of the Alcotest, the State was forced to proceed solely on the arresting officer's observations of defendant's demeanor, both during the initial motor vehicle stop as well as his conduct thereafter. The municipal court judge found defendant guilty of DWI and sentenced him to the minimum penalties applicable to a second offender -- forty-eight hours in the Intoxicated Driver Resource Center programs, two-year suspension of his driving privileges, two-year installation of an ignition interlock device, and the appropriate fines and penalties. N.J.S.A. 39:4-50(a)(2). Following a de novo review pursuant to Rule 3:23-8(a), the Law Division again found defendant guilty of DWI and imposed the same minimum mandatory penalties provided for in N.J.S.A. 39:4-50(a)(2).
Defendant now appeals, raising the following arguments:
THE LOWER COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE STATE FAILED TO PRESENT COMPETENT PROOFS TO ESTABLISH THE VALIDITY OF THE DWI ROADBLOCK AND THE MOTOR VEHICLE STOP AT ISSUE.
A. The Law Division Improperly Relied On The Statements Contained Within The Roadblock Justification Because The State Failed To Lay The Proper Foundation To Have The Document Admitted Into Evidence.
B. The Law Division Improperly Relied On The Statements Contained Within The Roadblock Justification Because The State Failed To Demonstrate The Reliability Of The Statements Contained In That Document.
C. The Law Division Improperly Relied On The Statements Contained Within The Roadblock Justification Because The Admission Of That Document Violated The Confrontation Clause.
D. Even Assuming, Arguendo, That The Law Division Correctly Relied On The Factual Assertions Contained Within The Roadblock Justification, The State Failed To Establish The Validity Of The Roadblock at Issue.
THE LAW DIVISION ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE STATE FAILED TO PRESENT COMPETENT PROOFS TO ESTABLISH THE VALIDITY OF THE DWI ROADBLOCK AND THE MOTOR VEHICLE STOP AT ISSUE.
A. The Continuance Of The Trial Over Defendant's Objection On A Date That Was Nearly Seven Months From The Alleged Offense Date To Allow The State Additional Time To Prepare Its Case Violated Defendant's Right To A Speedy Trial.
B. The Continuance Of The Trial Over Defendant's Objection After Jeopardy Had Attached Violated Defendant's Constitutional Protection To Be Free Of A Subsequent Prosecution For The Same Offense.
THE STATE FAILED TO ESTABLISH THAT DEFENDANT WAS INTOXICATED WHEN HE OPERATED THE MOTOR VEHICLE STOP AT ISSUE.
We are not persuaded by defendant's arguments and affirm his second DWI conviction substantially for the reasons ably expressed by the Law Division.
Our standard of review is well-settled. The trial judge's factual findings will not be disturbed where they are supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). Here, the arresting officer testified that he immediately smelled an odor of alcoholic beverages upon approaching defendant's car and that the odor increased when defendant exited his car. The Law Division judge noted the arresting officer's testimony that defendant was unable to satisfactorily complete any of the field sobriety tests administered, particularly that he "struggled to keep his balance . . . the entire time."
Defendant also challenges the validity of the roadblock itself. Because a DWI roadblock authorizes a police officer to stop and detain a motorist without individualized suspicion, it must be executed in strict adherence to well-established procedural safeguards. State v. Kirk, 202 N.J.Super. 28, 43 (App. Div. 1985). Our Supreme Court has explained that "[i]n order to pass muster under our state constitution, a roadblock or checkpoint must be established for a specific need and to achieve a particular purpose at a specific place." State v. Carty, 170 N.J. 632, 652 (2002) (citing Kirk, supra, 202 N.J.Super. at 37).
Here, the roadblock justification certification explicated the roadblock's intended purpose and described the sizable history of DWI incidents in that area. The roadblock justification certification set forth that "[t]wo previous sobriety checkpoints conducted at this location have resulted in 5 DWI arrests, and 3 drug related arrests. Since January 1st, 2009 the Bergen County Police Department has made 24 DWI arrest[s] in the vicinity of the proposed checkpoint." The roadblock in this matter clearly adhered to the principles established by the Court in Carty.
Defendant's claim that he was denied a speedy trial also fails. In State v. Szima, 70 N.J. 196, 200-02, cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180 (1976), our State Supreme Court adopted the constitutional standard for a speedy trial set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, the Court identified four factors for consideration: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530, 92 S.Ct. at 2191-92, 33 L.Ed.2d at 115-17; accord Szima, supra, 70 N.J. at 200-01.
Here, defendant was initially afforded a month to obtain counsel. However, his trial before the municipal court was then delayed by approximately seven months -- commencing on March 11, 2011, instead of September 13, 2010. This delay was caused by the prosecutor's apparent inability to obtain and provide documentation of the Alcotest system calibration. Defendant objected to the delay and asserted his right to a speedy trial on November 22, 2010, when the municipal court judge indicated that he would grant the State an additional month to obtain the documentation. The record reflects that defendant was not prejudiced by this delay. Indeed, the municipal court sanctioned the State's dilatory behavior in failing to comply with defendant's discovery request by suppressing the Alcotest results and forcing the State to prove its case exclusively on the arresting officer's testimony. Under these circumstances, a seven-month delay does not carry legal consequences.
Defendant's conviction was based on the arresting officer's observations and reports, to which defendant was privy at all times. Although the seven-month length of delay is not insignificant, it is not a violation of defendant's rights. Cf. State v. Misurella, 421 N.J.Super. 538, 544 (App. Div. 2011) (upholding the defendant's DWI conviction despite a twenty-seven month delay between municipal court trial and de novo review by the Law Division).
Finally, we address defendant's argument that the State failed to prove defendant's intoxication. The arresting officer's testimony and supporting reports, completed the night of the arrest, provide ample support for the trial court's finding that defendant was intoxicated when stopped at the roadblock. N.J.S.A. 39:4-50 does not require the use of breathalyzer or Alcotest results to support a conviction. State v. Johnson, 42 N.J. 146, 161 (1964). A conviction for DWI may be based solely on the arresting officer's observations of the defendant's apparent intoxication. State v. Kent, 391 N.J.Super. 352, 384 (App. Div. 2007); N.J.S.A. 39:4-50.
The remainder of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).