Opinion
DOCKET NO. A-4380-12T1
07-25-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. IRENE E. KOERNER, Defendant-Appellant.
David J. Foley, III, attorney for appellant. Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Simonelli. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 12-079. David J. Foley, III, attorney for appellant. Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Irene E. Koerner appeals from the order of the trial court denying her post-conviction relief (PCR) petition, which sought to overturn her guilty plea that constituted her then second conviction for driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50. As an ancillary, yet material part of this appeal, defendant also challenges the trial court's denial of her motion to withdraw her guilty plea under the standards established by the Supreme Court in State v. Slater, 198 N.J. 145 (2009). These issues came before the Law Division as an appeal, under the provisions in Rule 3:23-1, from a similar decision made by the Middletown Township Municipal Court pursuant to Rule 7:10-2.
In response to the court's questions, defendant's counsel conceded that this PCR petition was prompted by defendant's third DWI conviction. As counsel explained, at the time this municipal court appeal came before the Law Division, defendant had been sentenced for her third DWI conviction and had completed the mandatory custodial part of the sentence. N.J.S.A. 39:4-50(a)(3).
Judge Anthony J. Mellaci, Jr. denied defendant's petition after considering the arguments of counsel, as well as the record developed before the municipal court. Specifically, Judge Mellaci rejected defendant's argument attacking the performance of her attorney in connection with the sufficiency of the State's evidence. Judge Mellaci noted that the arresting officer's account of the events that led to the motor vehicle stop, and defendant's conduct thereafter, amply supports the officer's decision to arrest defendant for DWI.
Defendant was driving her car twenty miles under the posted speed limit and was weaving in and out of her lane of traffic; she had a strong odor of an alcoholic beverage on her breath; her eyes were bloodshot; she was incoherent and uncooperative with the officer at the scene. The arresting officer also found an open bottle containing some kind of alcoholic liquid. Finally, while in the process of retrieving the bottle from the car, the officer noticed defendant had failed to put the car in park.
Once at the police station, defendant continued to act in a manner consistent with being in a state of inebriation. Two Breathalyzer tests administered at the station showed defendant's blood alcohol content (BAC) as .15, well over the .08 presumptive level of intoxication under N.J.S.A. 39:4-50(a). Defendant nevertheless claimed her attorney was ineffective in failing to challenge the admissibility of the results of the Breathalyzer tests because: (1) one of the assay certificates regarding the test ampoule was written in French; and (2) the pre-test inspection certificate was thirty-one days old and therefore should have been excluded under State v. Samarel, 231 N.J. Super. 134, 142 (App. Div. 1989).
Judge Mellaci found no legal basis for these arguments. Relying on our Supreme Court decision in State v. Sweet 195 N.J. 357, 360 (2008), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009), Judge Mellaci found the ampoule testing certificates were admissible under the business records exception to the hearsay rule, N.J.R.E. 803(c)(6). The same conclusion applied with respect to the admissibility of the breath-testing instrument inspection certificates. State v. Dorman, 393 N.J. Super. 28, 33 (App. Div. 2007), aff'd, 195 N.J. 357 (2008). Both of these documents were not considered testimonial evidence within the meaning of the Sixth Amendment Confrontation Clause, as construed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Sweet, supra, 195 N.J. at 360.
The assay certificate defendant claimed was written only in French, was also provided by the State in discovery written in English.
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Relying on our holding in State v. Sandstrom, 277 N.J. Super. 354, 358 (App. Div. 1994), Judge Mellaci also rejected defendant's argument attacking the admissibility of the Breathalyzer's pre-test inspection certificate under Samarel, because the certificate was thirty-one days old at the time of the test. As Judge Newman explained in Sandstrom, supra:
Samarel does not, nor did it purport to, establish an absolute outside time limit for the validity of a pre-test inspection certificate. There is no one month limitation on the validity of a pre-test inspection certificate. Admittedly, a pretest inspection certificate done too far in advance of the administered test may run the risk of being labelled stale on a record
which could support such a finding. However, there is nothing of record here to show "inaccurate results" which undermine the validity of a pre-test inspection certificate issued 40, rather then [sic] 30, days prior to the administration of the Breathalyzer test on the defendant.
[277 N.J. Super. at 358.]
Defendant also argued that her defense attorney was ineffective in failing to secure a medical expert to challenge or impeach the State's evidence based on the arresting officer's observations of her physical demeanor and comportment, both at the scene of the motor vehicle stop and later on at the police station. Applying the long-established two-prong test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), Judge Mellaci found no basis to criticize defense counsel's performance in this respect because the medical evidence of the kind suggested by defendant would not have affected the outcome of the case.
After exhausting the arguments cognizable in a PCR petition, defendant also questioned the legal viability of her guilty plea under the factors established by the Court in Slater. Applying the Slater factors, 198 N.J. at 158, Judge Mellaci again found no basis to vacate defendant's plea. In an effort to avoid burdening this decision with unnecessary details, we simply incorporate by reference Judge Mellaci's factual recitation and legal analysis, reflected in his oral opinion delivered from the bench on April 12, 2013.
Against this record, defendant now raises the following arguments.
POINT I
THE DECISION BELOW MUST BE REVERSED BECAUSE THE CONTENTS OF THE PLEA ARE DEFICIENT AS A MATTER OF LAW, BECAUSE PETITIONER IMPLIEDLY PROTESTED HER INNOCENCE, AND BECAUSE SHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, WHEN THE RESULT WOULD HAVE BEEN DIFFERENT HAD SHE BEEN PROPERLY REPRESENTED.
POINT II
THE DECISION BELOW MUST BE REVERSED AND PETITIONER'S PLEA MUST BE VACATED BECAUSE IT WAS NOT MADE UNDER OATH, CONTAINED IMPLIED STATEMENTS OF INNOCENCE, AND LACKED AN ADVISORY OF THE RIGHT TO APPEAL.
POINT III
THE DECISION BELOW MUST BE REVERSED AND PETITIONER'S PLEA MUST BE VACATED BECAUSE THE MIDDLETOWN COURT FOUND REASONABLE DOUBT EXISTED AS TO PETITIONER'S GUILT.
We reject these arguments substantially for the reasons expressed by Judge Mellaci in his April 12, 2013 oral opinion. We add only the following brief comments. As we recently emphasized, a motion to withdraw a plea and a petition for PCR based on ineffective assistance of counsel are two distinct bases for relief that are governed by different rules of court, and must be considered separately. State v. O'Donnell, 435 N.J. Super. 351, 368 (2014). Here, Judge Mellaci properly reviewed and decided defendant's two distinct bases for relief, applying correctly the relevant legal standard to each separate application. We discern no basis to disagree with his decision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION