Opinion
DOCKET NO. A-5805-13T4
03-31-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SAMUEL RODRIGUEZ, Defendant-Appellant.
Matthew Whalen Reisig argued the cause for appellant (Reisig & Associates, LLC, attorneys; Mr. Reisig, of counsel; Jeffrey Zajac, on the brief). Stephen Anton Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2014-001. Matthew Whalen Reisig argued the cause for appellant (Reisig & Associates, LLC, attorneys; Mr. Reisig, of counsel; Jeffrey Zajac, on the brief). Stephen Anton Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, of counsel and on the brief). PER CURIAM
Defendant Samuel Rodriguez appeals his conviction, following a trial de novo, of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a chemical breath test (refusal), N.J.S.A. 39:4-50.2. Having considered defendant's arguments in light of the facts and applicable law, we affirm substantially for the reasons set forth in the Law Division judge's written opinion.
On July 27, 2013, defendant was charged by Bloomfield Police with DWI and refusal. The matter proceeded to trial before a municipal court judge. The trial took place on November 6, 13, and 25, 2013. Despite being informed on the record on November 6, 2013 of the next court date, defendant was not present at the start of proceedings on November 13, 2013. Counsel for defendant consented to commencing his cross-examination of the police officer who conducted the field sobriety tests without defendant being present. Defendant was not present during cross-examination.
Three Mobile Video Recorders (MVR) were activated at the scene of the incident, but only two were played at trial. There was some discrepancy as to whether a third video depicting field sobriety testing of defendant existed, and whether defendant had been provided in discovery with the requisite "core" documents identified in State v. Chun, 194 N.J. 54 (2008) and State v. Holland, 422 N.J. Super. 185, 190 (App. Div. 2011). Defendant objected to proceeding with the trial without the video, which was overruled. Defendant also moved to suppress the field sobriety evidence on the second day of trial on spoliation grounds. The judge denied the motion and the trial continued. On the third day of trial, defendant moved to dismiss the charges on the same grounds. The judge denied the motion, and also declined to permit an adverse inference based on the unavailability of the third video.
On December 18, 2013, the judge found defendant guilty on both charges. Defendant was sentenced to a seven-month loss of driver's license on the refusal conviction, a three-month loss of driver's license on the DWI conviction (to run concurrent to the loss of license on the refusal conviction), twenty-four hours participation in the Intoxicated Driver Resource Center, installation of an interlock device for six months following restoration of driving privileges, and additional fines and costs. Defendant was granted a stay of his sentence pending a municipal appeal to the Law Division filed on January 6, 2014.
On April 11 and June 16, 2014, a trial de novo was held before a Law Division judge. Following the April 11, 2014 proceeding, the third MVR was discovered and subsequently reviewed by that judge. The judge issued a written decision on June 30, 2014, finding defendant guilty on both charges and reimposing defendant's sentence. The judge granted defendant's application for a stay of the sentence pending an appeal. A notice of appeal was filed on August 14, 2014.
We discern the following facts from the municipal court trial record. In the early morning hours of July 27, 2013, defendant was involved in a one-car motor vehicle accident near the intersection of Broad Street and Bellevue Avenue in Bloomfield. Bloomfield Police Officer Gerald Trapp responded to the scene and observed defendant with two other companions near the car. Defendant informed Trapp that he fell asleep while driving and had not been drinking. Trapp smelled alcohol on defendant's breath, and called Officer Jonathon Donker to the scene to administer field sobriety tests to defendant.
Upon his arrival, Donker observed defendant was slurring his speech, swaying back and forth, and his eyes were watery and bloodshot. Donker also smelled alcohol on defendant's breath. Defendant informed Donker that he had "a few drinks" at a bar in Brooklyn. Donker administered three field sobriety tests: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. The flashing strobe lights on Donker's police car, as well as the responding EMS vehicle, were activated during the tests. Based upon his training, Donker concluded that defendant failed each of the tests. Defendant was placed under arrest and transported to the Bloomfield police station for submission to an Alcotest.
Donker administered the Alcotest following the requisite twenty-minute observation period. The first test reported "interference[,]" ostensibly as a result of the machine's detection of a foreign substance. Donker administered the test to defendant four more times. Each time, defendant failed to blow adequate volume of air required by the machine to register an accurate result. Donker concluded defendant had stopped blowing before being instructed to stop, and defendant was charged with refusal. Due to the seriousness of the accident, defendant was advised to report to a hospital for medical treatment. At the hospital, defendant asked a doctor to administer a blood test for alcohol, but the doctor refused.
Defendant's mother, Naomi Rodriguez, testified that defendant has "flat feet" and has always had speech problems. In addition, she smelled alcohol on defendant and observed vomit on the back of his shirt at the hospital. However, when the shirt was removed, defendant no longer smelled of alcohol. She also testified that the vomit was not defendant's. Defendant's work records were entered into evidence, showing that defendant worked for eight-to-ten hours per day for ten straight days prior to the accident.
Defendant raises the following arguments on appeal:
POINT I
BY UNILATERALLY PROCEEDING TO TRIAL IN THE DEFENDANT'S ABSENCE ON THE SECOND DAY OF TRIAL, THE MUNICIPAL COURT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO BE PRESENT AT TRIAL, WARRANTING THE VACATING OF HIS CONVICTIONS AND THE GRANTING OF A NEW TRIAL
POINT II
AS A RESULT OF THE TRIAL COURT'S BIAS AND PARTIALITY BELOW, THE DEFENDANT IS ENTITLED TO A REMAND TO THE BLOOMFIELD MUNICIPAL COURT, WITH TRIAL PRESIDED OVER BY A JUDGE HAVING NO KNOWLEDGE OR CONNECTION TO THIS CASE.
POINT A
THE MUNICIPAL COURT'S INSTANCES OF HOSTILITY, DERISION, AND MISPLACED HUMOR DIRECTED AT DEFENSE COUNSEL WERE REPEATEDLY DISPLAYED AT PRETRIAL CONFERENCES AND AT TRIAL.
POINT B
POINT III
THE FAILURE TO PRESERVE THE MOBILE VIDEO RECORDER OF CAR [FIVE] ENTITLED THE DEFENDANT TO A DISMISSAL OF ALL CHARGES, OR IN THE ALTERNATIVE, AN ADVERSE INFERENCE IN FAVOR OF THE DEFENDANT WITH RESPECT TO HIS PERFORMANCE OF THE FIELD SOBRIETY TESTS.
POINT IV
THE TWIN RELIANCE OF THE MUNICIPAL COURT AND PROSECUTOR'S OFFICE UPON A "LIAISON OFFICER" TO PROVIDE DISCOVERY VIOLATES THE CONSTITUTIONAL SEPARATION OF POWERS PROVISION, AND WARRANTS A NEW TRIAL. [(Not raised below)]
POINT V
THE TRIAL COURT ERRED BY NOT ADVISING THE DEFENDANT OF HIS RIGHT TO TESTIFY AT TRIAL. [(Not raised below)]
POINT VI
THE AGGREGATE LEGAL ERRORS AT TRIAL HAD THE CUMULATIVE EFFECT OF DENYING THE DEFENDANT HIS RIGHT TO A FAIR TRIAL.
Defendant's argument in Point B mirrors the argument set forth in Point II.
At the Law Division proceedings, defendant argued that the State failed to prove beyond a reasonable doubt that defendant was guilty of DWI and refusal and that the municipal court judge was biased and therefore could not properly assess the evidence or credibility of the witnesses. Additionally, defendant argued that the State failed to provide full discovery as requested, including (but not limited to) the third MVR, as well as video evidence of defendant's alleged failure to blow an adequate volume of air into the Alcotest. Defendant also challenged the validity of the Alcotest readings. Defendant did not argue during his municipal appeal that his constitutional right to be present at trial was violated, nor did he challenge the use of a "liaison officer" to provide discovery or the municipal court judge's purported failure to advise defendant of his right to testify.
In her written opinion, the Law Division judge found there was sufficient evidence in the record to support defendant's DWI conviction based upon observational evidence. The judge noted that the municipal court judge disregarded the field sobriety tests but relied, as did she, on the observations by both Trapp and Donker at the scene of the crash, the damage the crash caused, and the fact that defendant "ran through a traffic sign and a fence before coming to a rest by colliding with a tree." The Law Division judge also pointed out that "Trapp testified that he smelled alcohol emanating from the defendant[,]" and "Donker testified that the defendant's speech was slurred, his eyes were watery and bloodshot, and that he smelled of alcohol." As to the refusal conviction, the Law Division judge found that the State provided the requisite core documents and adequately demonstrated that the Alcotest was properly administered and the machine was properly functioning.
With respect to defendant's argument as to the municipal court judge's alleged bias, the Law Division judge held that the purportedly biased treatment — which included an audiotape of the municipal court judge stating that defense counsel was "just throwing shit against the wall to see what sticks[]" — were "colloquial and not dispositive of bias." The judge further held, "[t]he municipal court judge did not disqualify himself, but he was not required to do so. This was not an error by the court."
On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court, and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). In reviewing a trial court's decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the Law Division's decision. Id. at 162. Unlike the Law Division, which conducts a trial de novo on the record, Rule 3:23-8(a)(2), we do not independently assess the evidence. State v. Locurto, 157 N.J. 463, 471 (1999). In addition, under the two-court rule, only "a very obvious and exceptional showing of error" will support setting aside the Law Division and municipal court's "concurrent findings of facts." Id. at 474. However, where issues on appeal turn on purely legal determinations, our review is plenary. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 209 N.J. 430 (2012).
Applying this standard of review, we affirm defendant's conviction substantially for the reasons set forth in the comprehensive and well-reasoned written opinion of the Law Division judge. We add only the following.
We first address defendant's contention that the municipal court judge violated defendant's right to be present at trial. Rule 7:8-7(a) states, in pertinent part:
We emphasize that the Law Division conducts a trial de novo on the record. R. 3:23-8(a)(2). As defendant appeals the Law Division decision, the purpose of our review is to determine whether sufficient credible evidence in the record supports that decision. Johnson, supra, 42 N.J. at 162. Our ability to conduct a review is hampered when an issue is before us that was not raised before the Law Division. We nevertheless address this issue raised by defendant under the plain error standard. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
[T]he defendant shall be present, either in person, or by means of a video link . . . at every stage of the proceeding and at the imposition of sentence. If, however, defendant is voluntarily absent after the proceeding has begun in the defendant's presence or the defendant fails to appear at the proceeding after having been informed in open court of the time and place of the proceeding, the proceeding may continue to and including entry of judgment.
[(emphasis added).]
Here, the record is clear that defendant was present on November 6, 2013, when the State, defense counsel, and the municipal court judge explicitly agreed to adjourn the matter until November 13, 2013, at 5:00 p.m. We are satisfied that proceeding with the trial was in accord with Rule 7:8-7(a).
Moreover, counsel for defendant consented to beginning his cross-examination of Donker without defendant being present:
Your Honor, my client is not here at the moment. He was tied up in traffic on his way from Jersey City. His mother just spoke to him, and he's on his way. So we apologize [for] that. I know that [Donker] came in on his off day in order to do this. I would not be opposed to beginning my cross-examination of [Donker] without my client here. And then when my client gets here, we could begin his testimony and his witness's testimony.Under the doctrine of invited error, a disappointed litigant may not argue "on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (citation and internal quotation marks omitted); see also State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (likewise applying the invited error doctrine where a defendant convinced the trial court "to take a course of action" that ultimately proved erroneous).
Even if the municipal court judge's decision to proceed without defendant was error, any error was harmless given that the municipal court judge disregarded the principal focus of Donker's testimony, i.e., the results of the field sobriety tests.
We next address whether the failure to preserve the third MVR entitled defendant to a dismissal of the charges or an adverse inference in favor of defendant. Although there was some discrepancy during trial whether the third MVR ever existed, the municipal court judge ultimately declined to dismiss the charges or permit an adverse inference due to spoliation.
By the time of the hearing before the Law Division, the missing tape was discovered and produced. The Law Division judge viewed the third MVR and concluded that "Donker had probable cause that the defendant was in physical control of a motor vehicle while under the influence by the statements made by the defendant to the responding officer, the observations at the scene of Officers Trapp and Donker of the vehicle, damage caused, and the defendant's demeanor." The judge further noted that defendant admitted he was the driver and that he was at a bar in Brooklyn the night before. As such, the third MVR inculpated rather than exculpated defendant and provided additional evidence upon which the judge could reach a de novo finding of guilt. In sum, we conclude the Law Division's decision is founded in substantial credible evidence in the record. Johnson, supra, 42 N.J. at 162.
Upon review of the record, we conclude defendant's remaining arguments lack sufficient merit to warrant an extended discussion in a written opinion. R. 2:11-3(e)(2). We only note in closing that while we do not condone the municipal court judge's criticisms of defense counsel at trial, we agree with the Law Division judge that the municipal court judge did not exhibit bias requiring disqualification.
We further note that defendant's argument as to disqualification is untimely since he did not raise the issue during trial. Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App. Div.) ("[W]e are of the view that the [disqualification] issue is inappropriately raised on this appeal because plaintiff never moved to challenge the judge himself, as would have been the proper practice."), certif. denied, 77 N.J. 468 (1978). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION