Opinion
DOCKET NO. A-1780-13T4
12-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANNE SHEARMAN, Defendant-Appellant.
Jeff Thakker, attorney for appellant. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-026. Jeff Thakker, attorney for appellant. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). The opinion of the court was delivered by OSTRER, J.A.D.
Defendant Anne K. Shearman appeals from her October 30, 2013 conviction, after a trial de novo, of driving while under the influence of intoxicating liquor (DUI), N.J.S.A. 39:4-50; refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.2; and related motor vehicle violations. Defendant's seven-month license suspension has been stayed pending appeal.
Defendant presents the following points for our review:
I. THE PROSPECT FOR MEANINGFUL APPELLATE REVIEW WAS DESTROYED BY THE FAILURE OF BOTH THE MUNICIPAL COURT AND THE LAW DIVISION TO IDENTIFY WHAT EITHER MEANT BY "S-1"; GIVEN THE IMPORTANCE OF THE VIDEO/AUDIO FOOTAGE RECORDED (INCLUDING ITS USE IN DETERMINING THE CREDIBILITY OF TESTIMONY ON MATTERS WHICH WERE NOT RECORDED), THE COURT SHOULD REVERSE FOR THE DEVELOPMENT OF A REVIEWABLE RECORD.
(INDIRECTLY RAISED BELOW (ISSUE DEVELOPED DURING MOTION TO SETTLE RECORD FILED IN LAW DIVISION)).
II. THE LAW DID NOT REQUIRE MS. SHEARMAN TO USE HER TURN SIGNAL WHEN MAKING A LEFT ONTO TEMPE WICK; AS A MATTER OF LAW, MS. SHEARMAN'S CONVICTION UNDER SUMMONS NO. 72777 SHOULD BE REVERSED.
III. MS. SHEARMAN WAS NOT REQUIRED TO STAY TO THE RIGHT WHERE SHE FOUND IT IMPRACTICABLE; AS A MATTER OF LAW, MS. SHEARMAN'S CONVICTION UNDER SUMMONS NO. 72779 SHOULD HAVE BEEN REVERSED.
IV. LT. ABRUSCI'S EXPRESSED REASON FOR STOPPING MS. SHEARMAN'S VEHICLE (FAILURE TO SIGNAL) WAS NOT A MOTOR VEHICLE OFFENSE; BECAUSE LT. ABRUSCI'S MISTAKE WAS AS A MATTER OF LAW, ALL EVIDENCE RESULTING FROM THE STOP SHOULD HAVE [BEEN] SUPPRESSED, AND ALL OF THE CHARGES SHOULD HAVE BEEN DISMISSED.
V. THE CHARGE UNDER N.J.S.A. 39:4-50.2e/39:4-50.4a (SUMMONS NO. 72778) SHOULD BE DISMISSED.
A. THERE WAS INSUFFICIENT CAUSE/SUSPICION FOR THE STOP AND ARREST.
B. MS. SHEARMAN RESERVES HER RIGHT TO CHALLENGE O'DRISCOLL (AND, IF NECESSARY, DIMINNI); SINCE THE IMPLIED-CONSENT WARNING DID NOT PROPERLY APPRISE MS. SHEARMAN AS TO THE PENALTIES FOR REFUSAL, THE STATE CANNOT ESTABLISH THIS REFUSAL ELEMENT.
C. CONFUSION AND FUTILITY.
VI. THE LAW DIVISION DENIED MS. SHEARMAN DUE PROCESS OF LAW BY REFUSING TO DECIDE THE TRIAL DE NOVO BEFORE STATE V. O'DRISCOLL AND STATE V. DIMINNI.
VII. THERE WAS INSUFFICIENT EVIDENCE THAT MS. SHEARMAN WAS DRIVING WHILE INTOXICATED.
VIII. THE PROCEDURAL AND SUBSTANTIVE ERRORS IN THE MUNICIPAL COURT VIOLATED DENIED MS. SHEARMAN THE RIGHT TO DUE PROCESS AND A FAIR TRIAL, THEREBY INFECTING THE LAW DIVISION'S DE NOVO DETERMINATIONS.
A. THE CROWLEY AFFIDAVITS PRESENTED A POSSIBLE CONFLICT ISSUE WHICH SHOULD HAVE BEEN ADDRESSED.
B. IT WAS IMPROPER TO COLLAPSE THE PROBABLE-CAUSE/SUPPRESSION HEARING WITH THE TRIAL ITSELF; THE MUNICIPAL COURT COULD NOT PROPERLY MAKE CREDIBILITY DETERMINATIONS, AND THE LAW DIVISION THUS DID NOT HAVE A PROPER RECORD FOR TRIAL DE NOVO REVIEW.
C. IT WAS ERRONEOUS FOR THE MUNICIPAL COURT TO DISPENSE WITH THE OPENING STATEMENT REQUIRING THE STATE TO
SET FORTH WHAT IT INTENDED TO PROVE; THE LAW DIVISION DID NOT HAVE A PROPER RECORD FOR TRIAL DE NOVO REVIEW.
D. THE MUNICIPAL COURT'S DECISION TO HEAR THE DEFENSE BEFORE THE PROSECUTION, DESTROYED MS. SHEARMAN'S PRESUMPTION OF INNOCENCE.
E. LT. ABRUSCI SHOULD HAVE BEEN SEQUESTERED, OR HE AT LEAST [SHOULD] HAVE BEEN FORBIDDEN FROM CO-CHAIRING THE PROSECUTOR; WHEN LT. ABRUSCI ASSISTED THE COURT IN ADMINISTERING THE OATH TO MS. SHEARMAN, THE PROCEEDING WAS IMPERMISSIBLY TAINTED.
IX. THE MUNICIPAL COURT CANNOT DECIDE THE CASE ON WITNESS CREDIBILITY, WHILE DENYING THE DISCLOSURE OF DISCOVERY WHICH WOULD HAVE CHALLENGED IF NOT DESTROYED THE CREDIBILITY OF THE STATE'S CHIEF WITNESS; THE DEFENSE SHOULD BE PERMITTED TO INTRODUCE EVIDENCE THAT LT. ABRUSCI WAS IN FACT SPEEDING. MS. SHEARMAN'S CONVICTIONS WERE IN LARGE MEASURE BASED ON THE CREDIBILITY OF LT. ABRUSCI; DISCOVERY REGARDING LT. ABRUSCI'S OPERATION OF HIS VEHICLE WAS HIGHLY RELEVANT AND MS. SHEARMAN SHOULD HAVE BEEN PERMITTED SAME.
X. MS. SHEARMAN WAS DENIED HER RIGHT TO A SPEEDY TRIAL.
(ONLY PARTIALLY RAISED BELOW; OBJECTION TO JULY 17, 2013 STAY MOTION MADE, WITHOUT SPECIFIC MENTION OF SPEEDY-TRIAL ISSUE).
Having considered defendant's numerous substantive and procedural arguments in light of the facts and applicable law, we affirm.
I.
The record reflects that shortly after midnight on June 18, 2011, Mendham Township Police Lieutenant Vito Abrusci observed defendant commit what he believed were multiple motor vehicle violations. Defendant's vehicle repeatedly crossed the center double-yellow lines, and almost crossed the right fog line after taking corrective action when an oncoming car approached. She straddled a turning lane at one intersection, and failed to signal or come to a full stop before making a left turn at a second "T" intersection. Abrusci's mobile video recording device (MVR) captured the failure to signal the left turn, and subsequent failure to keep right.
We will use "MVR" to refer to the audio and/or video recording produced by the device.
Abrusci stopped defendant's vehicle. The MVR captured most of the interaction between Abrusci and defendant. Abrusci testified that he detected a strong odor of alcoholic beverages, which was confirmed by an assisting officer. Abrusci testified that defendant's eyes were glassy. She slurred her words and fumbled as she retrieved her credentials. Defendant stated she drank only one glass of wine. Abrusci testified that defendant did not strictly comply with his request that she recite the alphabet from "d" to "r", as she also recited "s." She also refused to perform a finger dexterity test, stating her arthritis prevented her from doing so.
At that point, Abrusci asked defendant to perform field sobriety tests. Although the tests were performed out of view of the MVR, the recording captured most of the verbal exchange. Defendant was reluctant and at times uncooperative. She stated she suffered from arthritis, a bad knee, and high blood pressure. She said she was afraid to close her eyes for the Romberg balance test. She performed poorly on the horizontal gaze nystagmus (HGN) test and the walk-and-turn test. When defendant refused to attempt any further field sobriety tests, Abrusci arrested defendant, placed her in his patrol car, and administered Miranda warnings.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The MVR continued to capture Abrusci's verbal interactions with defendant at the station-house, where defendant refused to submit to an Alcotest test. Abrusci read to defendant the standard statement, issued April 26, 2004, advising her of the consequences of refusal. The statement did not refer to the mandatory installation of an ignition interlock if convicted. After defendant stated she would not take the test until she talked to an attorney, Abrusci also read a statement advising her that her rights to remain silent, and to seek counsel before answering questions, did not entitle her to refuse to submit to the breath test. She still refused to take the test, writing on the form, "Not until I speak to my attorney."
The form states, in part, "I previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney, do not apply to the taking of breath samples and do not give you a right to refuse to give, or to delay giving, samples of your breath . . . ."
Defendant testified in her own defense and insisted that she consumed only one glass of wine the evening of her arrest. Her assertion was corroborated by her husband and a friend with whom they socialized that evening. She stated she drove in the middle of the roadway to avoid deer, explaining that her daughter had been involved in a serious collision with a deer. She said she was nervous during the traffic stop. She said she paused in providing her identification in the hopes Abrusci would notice a PBA card she had among her papers. She explained she performed poorly on the field sobriety tests because she suffered from arthritis and other conditions affecting her right knee. A medical expert confirmed that she suffered from physical limitations. An expert on field sobriety tests questioned Abrusci's administration of the HGN test, and opined that the physical balance tests were inappropriate in light of defendant's physical limitations.
The municipal court rejected defendant's argument that the police lacked probable cause to arrest. Defendant did not challenge the basis for the traffic stop in municipal court. In the trial de novo, defendant challenged the stop, but not the arrest. The Law Division found that the officer had reasonable and articulable suspicion of motor vehicle violations, justifying the stop.
Consistent with the municipal court's decision, the Law Division found defendant guilty of DUI, N.J.S.A. 39:4-50; and refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.4a. The court grounded its finding of DUI on defendant's erratic driving; defendant's slurred speech and watery eyes; the smell of alcoholic beverages; her antagonistic and argumentative behavior; and her poor performance on field sobriety tests. The court cited State v. Bealor, 187 N.J. 574 (2006), and State v. Tamburro, 68 N.J. 414 (1975), among other authority, in support of its conclusion that these factors established an observational case of DUI.
With respect to the refusal, the court rejected defendant's argument that she was not adequately informed of the consequences of refusal because the officer did not mention the ignition interlock requirement. The court relied on the Supreme Court's decision in State v. O'Driscoll, 215 N.J. 461 (2013), which we discuss below.
The Law Division also rejected procedural challenges to the conviction. The court found no reversible error in the municipal court's denial of a defense motion made mid-trial to sequester Abrusci, who by that time had already testified. The court noted that the decision whether to sequester witnesses is left to the trial court's discretion, citing State v. DiModica, 40 N.J. 404 (1963). Relying on State v. Gibson, 429 N.J. Super. 456 (App. Div. 2013), aff'd in relevant part and rev'd in part on other grounds, 219 N.J. 227 (2014), the Law Division held the municipal court did not err in incorporating the suppression hearing evidence into the trial on the merits, inasmuch as both parties consented.
The court also rejected the argument that the municipal court erred in denying discovery regarding Abrusci's speed on the way back to the stationhouse. Defendant sought the evidence to discredit Abrusci's statement — on the MVR and at trial — that he did not speed. The court concluded the evidence was not relevant. Lastly, the court rejected defendant's argument, raised after the verdict in municipal court, that the municipal judge should have recused himself on his own initiative. While in private practice, the judge and thereafter his law partner represented in a divorce action the father of a witness at defendant's trial. The court noted that the representation took place over twenty years earlier, and the witness was peripheral to the issues in the case. The court concluded there was no showing of prejudice or appearance of impropriety.
The court imposed concurrent license suspension terms of three months, and seven months, respectively; required defendant to install an ignition interlock device for six months after her driving privileges were restored; required her to attend the Intoxicated Driver Resource Center for twelve hours; and imposed mandatory fines and penalties. The court also found defendant guilty of failing to keep right, N.J.S.A. 39:4-82, and failing to use a signal to turn, N.J.S.A. 39:4-126.
Defendant did not seek review of the municipal court conviction of failure to produce a valid registration, N.J.S.A. 39:3-29. The municipal court also found defendant not guilty of reckless driving, N.J.S.A. 39:4-96, and resisting arrest, N.J.S.A. 2C:29-2(a)(1).
II.
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. State v. Johnson, 42 N.J. 146, 162 (1964). Unlike the Law Division, which conducts a trial de novo on the record, Rule 3:23-8(a), 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 (1995)), certif. denied, 209 N.J. 430 (2012). Applying this standard of review, we affirm defendant's convictions substantially for the reasons set forth in the cogent written opinion of the Law Division judge. We add the following comments.
A.
Defendant argues that the record on appeal does not clearly reflect the contents of the MVR, which was marked as S-1 in evidence. Defendant argues a remand is required to develop a reviewable record.
We disagree. Exhibit S-1, included in the record before us, contains two "titles." The first, denominated "Video 22910" and consisting of fifty-five minutes, recorded the events on the road, at the stop, the ride to the stationhouse, and the audio of the refusal. The second title, denominated "Video 22911," consists of additional dialogue, also about fifty-five minutes, between Abrusci and defendant while she waited in the stationhouse for a ride home. It is readily apparent from the comments and decisions of the municipal court and Law Division judges that they reviewed Video 22910. As they do not comment on Video 22911, it is uncertain whether they reviewed it. However, neither expressly relied on it, nor do we.
In response to defense counsel's inquiry, the Criminal Division Manager provided the version of S-1 in the custody of the Law Division; it consisted of 111 minutes, obviously the same two "titles" in the S-1 in the record before us.
Defendant also relies on Rule 1:2-2, which requires "the trial divisions of the Superior Court and in the Tax Court" to transcribe, as well as preserve, video evidence presented to the fact-finder. "Unless a transcript thereof is marked into evidence, a verbatim record shall also be made of the content of an audio or video tape played during the proceedings and the tape itself shall be marked into evidence as a court's exhibit and retained by the court." Ibid. The Law Division judge reviewed the MVR in advance of oral argument in open court. However, we discern no violation of Rule 1:2-2. The municipal appeal involves a trial de novo in the Law Division on the record. R. 3:23-8(a).
The municipal court is governed by Rule 7:8-8 and a subsequent order of the Court, which require sound recordings of proceedings. See also Pressler & Verniero, Current N.J. Court Rules, comment on R. 7:8-8 (2015). Apparently, the municipal court sound recording did not capture the playback of the MVR which the municipal court judge reviewed in open court. Thus, no transcription of the playback was made. However, we discern no prejudice to defendant, as the video evidence was preserved.
Defendant cites a chain of custody report, produced in a motion filed with the Law Division after its decision, noting that there were two video titles from June 18, 2011, in addition to those already mentioned. Altogether, the four titles are: Video 22910, from 0:14 to 1:10; Video 22911, from 1:10 to 2:06; Video 22912, from 2:06 to 3:02; and Video 22913, from 3:02 to 3:04. Defendant concedes that the last two titles contained nothing of substance.
B.
We also find no merit in defendant's challenge to her convictions for failing to signal and failing to keep right. A person violates N.J.S.A. 39:4-126 when "any other traffic may be affected" by an unsignaled turn. "Other traffic" may include an officer's vehicle. State v. Williamson, 138 N.J. 302, 304 (1994). A potential impact on traffic is enough. State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994). It is of no moment that defendant had to make a turn in one direction or the other when she reached the "T" intersection. "Motorists in the vicinity whose movements may be affected must be made aware of a driver's intentions." Williamson, supra, 138 N.J. at 304. In this case, other traffic consisted of Abrusci, who was following defendant.
The evidence also supported defendant's conviction of failing to stay right, N.J.S.A. 39:4-82. The statute imposes two duties to motorists. First, they "shall drive . . . on the right half of the roadway" if "of sufficient width." Ibid. A roadway is of "sufficient width" if there is adequate room for the motorist's vehicle. See Ceccomancino v. D'Onofrio, 111 N.J.L. 494, 499 (E. & A. 1933) (noting that "ample room on the highway" enabled compliance with a prior version of the statute); see also State v. Hostetler, 518 N.E.2d 56, 58 (Ohio Ct. App. 1987) (road not of "sufficient width" where farm vehicle was wider than the right half of the roadway).
Second, motorists "shall drive . . . as closely as possible to the right-hand edge or curb of the roadway, unless it is impracticable to travel on that side of the roadway." N.J.S.A. 39:4-82. "Impracticable" means not "reasonably capable of being accomplished" or not "feasible." See State v. Regis, 208 N.J. 439, 448 (2011) (construing "practicable" as used in N.J.S.A. 39:4-88 as requiring drivers to maintain their lane if feasible). Thus, a driver need not adhere to the right-hand edge if a pile of leaves, a parked car, or a cyclist or jogger makes it impracticable.
There is no question that the roadways on which defendant travelled were of sufficient width. Also, notwithstanding her fear of a deer's sudden entry onto the roadway, it was not impracticable for her to stay right. Her repeated encroachments of the center lines constituted a violation of the statute.
Defendant's challenge to the stop and subsequent arrest lack sufficient merit to warrant extensive comment. Based on the foregoing discussion of the two motor vehicle violations, it is clear the officer had a reasonable and articulable suspicion that defendant committed the motor vehicle offenses. That was sufficient to justify the stop. State v. Locurto, 157 N.J. 463, 470 (1999). The probable cause to arrest for DUI was based largely on the same evidence that persuaded both the municipal court and the Law Division, beyond a reasonable doubt, that defendant committed the offense. The Law Division's finding is supported by sufficient credible evidence in the record.
We also note that defendant did not challenge probable cause to arrest in the trial de novo. We therefore are not required to reach the issue. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
C.
We also discern no error in the Law Division's finding that defendant refused to submit to a chemical breath test. To sustain a conviction for refusal under N.J.S.A. 39:4-50.4a, the State must prove the following beyond a reasonable doubt:
(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test."[A]nything substantially short of an unqualified, unequivocal assent to an officer's request that the arrested motorist take the [breath] test constitutes a refusal to do so." State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div.), certif. denied, 126 N.J. 323 (1991).
[State v. Marquez, 202 N.J. 485, 503 (2010) (citations omitted).]
Defendant renews her argument that she was not adequately informed of the consequences of refusal because the officer did not mention the ignition interlock requirement. Defendant argues that the ignition interlock is an especially significant consequence for her, because she is a real estate professional who drives clients to property showings, and the necessity to use the device in the presence of clients would undermine her client relationships. We are unpersuaded.
As did the Law Division, we recognize that the standard statement that Abrusci used did not refer to imposition of the ignition interlock requirement upon conviction. The requirement was adopted as a mandatory consequence of a refusal conviction in 2010. L. 2009, c. 201, §§ 2, 5 (Jan. 14, 2010). Yet, the standard statement promulgated by the Attorney General was not revised to incorporate mention of the ignition interlock consequence until 2012. See N.J. Office of Att'y Gen., Standard Statement for Motor Vehicle Operators (July 1, 2012), http://www.nj.gov/oag/dcj/njpdresources/dui/pdfs/english1.pdf.
O'Driscoll, supra, discussed when a deviation from the standard statement requires reversal of a refusal conviction. The Court addressed the closely related issue of an officer's reading of an outdated standard form that failed to incorporate various enhancements of the license suspension period and potential fines. 215 N.J. at 468-69, 473-74. The Court held the error in reading a superseded or outdated standard statement was subject to a materiality test. "Courts should consider whether an error in the reading of the standard statement is material in light of the statutory purpose to inform motorists and impel compliance." Id. at 466. The Court stated that neither prior case law nor the "language of the implied consent statute . . . require absolute precision." Id. at 476, 478.
In making the materiality finding, courts must "examine whether a defendant reasonably would have made a different choice and submitted to a breath test had the officer not made an error in reciting the statement." O'Driscoll, supra, 215 N.J. at 466. Under this approach, "discrepancies that would not have influenced a reasonable driver's choice to submit to a breath test would not" be deemed material and thus would not warrant reversal. Id. at 477-78. "On the other hand, substantive errors that do not adequately inform motorists of the consequences of refusal and would affect a reasonable person's decision-making would be problematic." Id. at 478. The evaluation of a deviation's materiality "requires a case-by-case evaluation of the facts." Ibid. In O'Driscoll's case, the Court found the officer's misstatements about the revocation period and minimum fines "were inconsequential." Id. at 478-79.
We note that O'Driscoll was decided after the Municipal Court trial, but before the trial de novo was completed. The evidentiary record contains no testimony or other competent evidence that mandated use of an ignition interlock device for six months would have deterred defendant from refusing. We note that the prospect of a license suspension for as long as a year obviously did not. Moreover, the MVR and Abrusci's testimony reflect that defendant was intent upon impeding testing, both at the roadside and at the stationhouse. She insisted she would not submit to a chemical breath test until she spoke to an attorney, despite Abrusci's advice that her right to seek legal advice did not empower her to refuse.
We discuss below defendant's argument that her due process and speedy trial rights were violated by the Law Division's decision to await the Court's decision in O'Driscoll and our court's decision in another appeal before resolving defendant's municipal appeal.
We are also unpersuaded by defendant's argument that she was confused by the apparent inconsistency of the Miranda warning, which advised her of the right to remain silent, and the standard statement, which informed her that she was obliged to provide a breath sample. We recognize it is sometimes "difficult to impart to a suspected inebriate in a station house the subtle legal distinctions that make it constitutionally permissible to extract a person's blood or breath but not his or her words." State v. Leavitt, 107 N.J. 534, 539 (1987). However, "a defendant bear[s] the burden of persuasion if he [or she] wishes to establish a confusion claim." Id. at 542. "[I]n most cases the defendant makes a more practical rather than legal judgment about exercising the statutory right to refuse a blood-alcohol test in light of the generally known consequences." Ibid.
Although the Law Division judge did not expressly address the confusion claim in his written opinion, we are satisfied that he was unpersuaded, based on his comments during the trial de novo, and his ultimate finding of guilt for refusal. Defendant was not entitled first to retain and then confer with an attorney before submitting to the test. Id. at 541-42. The record supported the court's conclusion that defendant understood that she was obliged to provide a sample, but refused.
D.
Defendant argues for the first time that the case against her should be dismissed because she was denied a speedy trial. The court, on its own initiative, determined at the initial hearing on the trial de novo on June 13, 2013 to delay resolution until mid-July, in anticipation of the decision in O'Driscoll, supra, which had been argued, and another case pending in our court that addressed the omission of the ignition interlock requirement, State v. Diminni, No. A-0624-12 (App. Div. Oct. 2, 2013). With those appellate cases still undecided a month later, the Law Division on July 17, 2013, granted the State's contested motion to extend the stay. The total delay amounted to less than five months. O'Driscoll was decided September 18, 2013. The appellate panel decided Diminni on October 2, 2013. The Law Division heard argument and decided the municipal appeal on October 30, 2013.
Although defendant objected to the State's motion for a stay of decision, she did not seek dismissal on speedy trial grounds. We therefore view her argument before us under a plain error standard. State v. Reldan, 185 N.J. Super. 494, 506 certif. denied, 91 N.J. 543 (1982). We discern no error, let alone plain error.
The Court in State v. Cahill, 213 N.J. 253, 257 (2013), concluded that the four-factor test in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), governs speedy trial rights in quasi-criminal cases, such as prosecutions for DUI and refusal to submit to a chemical breath test. The four factors are: length of delay; reason for delay; assertion of the right to a speedy trial; and prejudice. Cahill, supra, 213 N.J. at 272-75.
Defendant notes that over two years elapsed between arrest and the trial de novo. However, this calculation of time ignores the fact that defendant received two trials in that time. Proceedings in municipal court began in earnest in January 9, 2012 and concluded September 28, 2012, with intervening trial days in February, May and August. The Law Division heard initial oral argument in June 2013.
The Cahill Court measured the length of delay in that case from the time of filing of charges to the date of notice of trial in municipal court. 213 N.J. at 272. We have also considered speedy trial claims regarding the delay between the municipal trial and the trial de novo. State v. Misurella, 421 N.J. Super. 538, 543-44 (App. Div. 2011).
Turning to the second factor, the record does not reflect the reason for delays in commencing trial or scheduling trial days in municipal court; or in scheduling the initial hearing in the Law Division. As defendant did not seek dismissal on speedy trial grounds before the Law Division, the State was not provided an opportunity to present evidence on the reasons for those delays, or whether they were due to defendant's actions.
On the other hand, the Law Division expressed the reason for the stay of decision from June to October 2013: to await imminent decisions in O'Driscoll and Diminni. The court's decision was reasonable. Our court's decision in O'Driscoll concluded that the error in the statement justified reversal of the conviction. State v. O'Driscoll, No. A-4341-10 (App. Div. Mar. 1, 2012). If the Law Division had followed that decision, Abrusci's omission of the ignition interlock requirement from the statement would have justified similar relief. However, the judge recognized that the Supreme Court's ultimate decision might compel a different result in defendant's case, which it ultimately did. As the State argued, had the Law Division proceeded to decision in advance of the Court's decision in O'Driscoll, the State would have been precluded by double jeopardy principles from revisiting the issue following the Supreme Court's decision.
The decision in Diminni was unpublished, although the Law Division found it determinative.
With respect to the third factor, we have already noted that defendant did not seek dismissal on speedy trial grounds, although she objected to the stay of the Law Division's decision.
Finally, with respect to prejudice, we do not minimize the anxiety triggered by an unresolved charge that carries the threat of license suspension. See Cahill, supra, 213 N.J. at 275. However, defendant has continued to drive while her case has been pending, as both the municipal court and Law Division granted stays of the license suspension. Consequently, the delays in some respects worked in her favor.
Neither court provided a statement of reasons for staying the suspension. Cf. State v. Robertson, 438 N.J. Super. 47, 75-76 (App. Div. 2014) (stating that a license suspension stay should not be automatic and defining the applicable standard), certif. granted, 221 N.J. 287 (2015). --------
Balancing these factors in light of the facts in the record, we cannot conclude the State violated defendant's right to a speedy trial.
E.
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The stay of defendant's license suspension is vacated. She shall forthwith surrender her driver's license to the Law Division.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION