STATE OF NEW JERSEY VS. MICHAEL ARNO(5-15, SOMERSET COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5356-14T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    MICHAEL ARNO,
    Defendant-Appellant.
    _______________________________
    Argued October 26, 2017 – Decided November 14, 2017
    Before Judges Simonelli, Haas and Rothstadt.
    On appeal from Superior Court of New Jersey,
    Law Division, Somerset County, Municipal
    Appeal No. 5-15.
    Timothy P. Kane argued the cause for appellant
    (Abdy & Kane, PC, attorneys; Mr. Kane, on the
    briefs).
    Rory A. Eaton, Assistant Prosecutor, argued
    the   cause  for   respondent  (Michael   H.
    Robertson,   Somerset   County   Prosecutor,
    attorney; Mr. Eaton, of counsel and on the
    brief).
    PER CURIAM
    Defendant appeals from his conviction, after a trial de novo
    in the Law Division, of driving while intoxicated (DWI), N.J.S.A.
    39:4-50; refusal to submit to a chemical breath test, N.J.S.A.
    39:4-50.2; and careless driving, N.J.S.A. 39:4-97.1   We affirm.
    The facts and procedural history of this case are set forth
    at length in Judge Kimarie Rahill's comprehensive twenty-six-page
    written decision and need not be repeated here in the same level
    of detail.
    Officer Ryan Cerro observed defendant driving his car near
    the Somerville Circle at approximately 2:45 a.m.   Defendant veered
    off into the left lane of travel and, although the speed limit was
    forty-fives mile per hour, defendant accelerated to approximately
    sixty miles per hour and then had trouble maintaining his lane.
    After defendant began driving even faster, Officer Cerro activated
    his overhead lights and executed a motor vehicle stop.
    The officer detected the odor of alcohol emanating from
    defendant's car and on his breath.   Defendant's eyes were watery,
    he appeared nervous, and his speech was boisterous in nature.
    1
    Defendant does not challenge his sentence in this appeal.
    Following our April 26, 2016 order granting defendant a limited
    remand to the municipal court for resentencing, the municipal
    court sentenced defendant as a second offender on the DWI
    conviction to a two-year driver's license suspension, forty-eight
    hours at an Intoxicated Drivers Resource Center, the installation
    of an interlock device for one year, and appropriate fines and
    penalties. The Law Division had earlier affirmed the municipal
    court's imposition of a concurrent seven-month driver's license
    suspension for refusal, together with fines and penalties on that
    charge, as well as for the careless driving conviction.
    2                           A-5356-14T4
    Defendant admitted he had been drinking alcohol during the day,
    but believed he was fine to drive.
    Officer Cerro had defendant perform two field sobriety tests,
    which    he   was    unable   to   successfully   complete.2   Defendant's
    performance on these tests was recorded by the officer's mobile
    video recorder (MVR) and this recording was played at defendant's
    trial.    After defendant failed the field sobriety tests, Officer
    Cerro arrested him, placed him in his patrol car, and drove to the
    police station.        At the station, defendant refused to submit to a
    chemical breath test.
    Officer Cerro was the State's only witness at the municipal
    court trial.        After the State rested, defendant called two expert
    medical witnesses.        One of the witnesses, a podiatrist, testified
    that he treated defendant for a "painful left big toe" both before
    and after his arrest and that this condition affected his ability
    to walk normally.          A pulmonologist, who was also defendant's
    brother, testified that he diagnosed defendant with a bronchospasm
    two days before his arrest.          The brother also stated that when he
    2
    On the "walk-and-turn" test, defendant needed to raise his arms
    to maintain his balance and failed to walk heel-to-toe as
    instructed. Defendant was also unable to perform the "one-leg-
    stand" test because he again needed to raise his arms to maintain
    his balance and could not keep his foot six inches off the ground
    for thirty seconds.
    3                          A-5356-14T4
    picked defendant up from the police station, defendant did not
    appear to be under the influence.
    Based upon the testimony presented at trial, the municipal
    court judge found defendant guilty of DWI, refusal, and careless
    driving. The judge made detailed findings of fact, fully crediting
    Officer Cerro's testimony.    The judge rejected the opinions of
    defendant's experts, noting that their claims that defendant's
    performance on the field sobriety tests may have been affected by
    a medical condition were belied by the MVR recording of defendant
    performing the tests.   Based on his review of that recording, the
    judge found that although defendant was unable to maintain his
    balance during the tests, he had no difficulty walking on the
    roadway as he prepared to take the tests.
    Following the trial de novo in the Law Division, Judge Rahill
    made equally detailed findings of fact and conclusions of law in
    her extremely thorough written opinion, and affirmed defendant's
    convictions.   This appeal followed.
    On appeal, defendant raises the following contentions:
    POINT I
    THE TRIAL COURT'S ARBITRARY AND UNREASONABLE
    DENIAL OF AN EXTENSION CONSTITUTED AN ABUSE
    OF DISCRETION AND A VIOLATION OF DEFENDANT['S]
    . . . RIGHT TO COUNSEL MANDATING A REVERSAL
    OF DEFENDANT'S CONVICTIONS.
    4                         A-5356-14T4
    POINT II
    DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT
    AND NEW JERSEY CONSTITUTIONAL RIGHT TO
    EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND HIS
    DUE PROCESS AND STATE RIGHT TO A FAIR TRIAL
    BY JUDGE KELLEHER'S GRANTING THE WITHDRAWAL
    MOTION OF HIS RETAINED ATTORNEY WITHOUT CAUSE,
    AND BY SAID ATTORNEY FAILING TO COMPLY WITH
    THE COURT ORDER AS TO THE REASON FOR FILING
    THE MOTION TO BE RELIEVED, RESULTING IN: 1)
    DEPRIVATION OF DEFENDANT'S COUNSEL OF CHOICE;
    2) TRIAL WITH INSUFFICIENT TIME FOR NEW
    COUNSEL TO PREPARE; 3) A LACK OF DISCOVERY;
    AND 4) A LACK OF THE DEFENSE EXPERT WHICH HAD
    BEEN PAID FOR BY THE DEFENDANT AND WAS
    ESSENTIAL TO HIS DEFENSE.
    POINT III
    THE DEFENDANT'S CONVICTIONS MUST BE REVERSED
    DUE TO THE MUNICIPAL COURT'S STRUCTURAL ERROR
    IN INCORPORATING THE SUPPRESSION MOTION AND
    TRIAL INTO A CONCURRENT PROCEEDING WITHOUT THE
    EXPRESS CONSENT OF THE PARTIES.
    POINT IV
    THE STATE FAILED TO PROVE BEYOND A REASONABLE
    DOUBT THAT THE DEFENDANT . . . OPERATED A MOTOR
    VEHICLE UNDER THE INFLUENCE OF ALCOHOL; THE
    DWI CONVICTION MUST BE REVERSED.
    POINT V
    THE EXISTENCE OF MEDICAL ISSUES AFFECTING
    DEFENDANT'S ABILITY TO PERFORM THE WALK-AND-
    TURN AND ONE-LEG-STAND TESTS RAISES REASONABLE
    DOUBT AS TO THE ELEMENT OF BREATH TEST REFUSAL
    REQUIRING PROBABLE CAUSE TO ARREST HIM FOR
    DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL.
    5                           A-5356-14T4
    POINT VI
    THE CARELESS DRIVING CONVICTION SHOULD BE
    REVERSED AS REASONABLE DOUBT EXISTS AS TO THE
    DEFENDANT['S] . . . GUILT; THERE WAS NO
    EVIDENCE AS TO ANY EFFECT ON OR DANGER TO
    OTHERS FROM THE MANNER IN WHICH [DEFENDANT]
    DROVE.
    POINT VII
    DEFENDANT WAS ENTITLED TO A JURY TRIAL IN
    LIGHT OF THE LEGISLATURE'S SHIFT,    WITH THE
    2004 AMENDMENTS TO N.J.S. 39:4-50, FROM
    REHABILITATION TO PUNISHMENT OF THIRD DWI
    OFFENDERS, COUPLED WITH THE POSSIBILITY OF
    JAIL IN EXCESS OF 180 DAYS AND THE IMPOSITION
    OF OTHER ONEROUS PENALTIES.
    We find insufficient merit in defendant's Points I, IV, V,
    and VI, to warrant discussion in a written opinion. 
    3 R. 2
    :11-
    3(e)(2).   We add the following brief comments concerning these
    contentions.
    3
    At oral argument, defendant's attorney waived defendant's
    argument in Point VII that he was entitled to a jury trial on the
    DWI charge.   See State v. Denelsbeck, 
    225 N.J. 103
    , 107 (2016)
    (holding that third or subsequent DWI offenders under N.J.S.A.
    39:4-50 are not entitled to a jury trial), cert. denied, ___ U.S.
    ___, 
    137 S. Ct. 1063
    , 
    197 L. Ed. 2d 175
     (2017). Therefore, there
    is no need to address this point in this opinion. We also decline
    to consider defendant's contention in Point II that three of the
    attorneys he retained rendered ineffective assistance to him
    during the course of this proceeding. State v. Rambo, 
    401 N.J. Super. 506
    , 525 (App. Div.) (noting that "[c]ontentions of
    ineffective assistance of counsel are more effectively addressed
    through petitions for post-conviction relief, at which point an
    appropriate record may be developed") (citing State v. Preciose,
    
    129 N.J. 451
    , 460 (1992)), certif. denied, 
    197 N.J. 258
     (2008).
    6                          A-5356-14T4
    Contrary to defendant's argument in Point I, the municipal
    court judge exercised his sound discretion in denying defendant's
    last-minute adjournment request on July 29, 2014, the day of trial.
    State v. Hayes, 
    205 N.J. 522
    , 538 (2011).      The matter had been
    pending for ten months, and defendant had already obtained multiple
    adjournments due to his alleged difficulties in retaining counsel.
    Thus, the judge was well within his discretion to deny defendant's
    request for yet another adjournment, this time to obtain an expert
    who defendant's attorney stated was then on vacation.
    Defendant's Points IV, V, and VI also lack merit.    On appeal
    from a Law Division decision, the issue is whether there is
    "sufficient credible evidence present in the record" to uphold the
    findings of the Law Division, not the municipal court.    State v.
    Johnson, 
    42 N.J. 146
    , 162 (1964).    "We do not weigh the evidence,
    assess the credibility of witnesses, or make conclusions about the
    evidence."   State v. Barone, 
    147 N.J. 599
    , 615 (1997).    We give
    due regard to the trial court's credibility findings.     State v.
    Cerefice, 
    335 N.J. Super. 374
    , 383 (App. Div. 2000).
    A DWI conviction may be based upon physical evidence, such
    as symptoms observed by the arresting police officers or failure
    of the defendant to perform adequately on balance and coordination
    tests.   State v. Liberatore, 
    293 N.J. Super. 580
    , 589 (Law Div.
    1995), aff'd o.b., 
    293 N.J. Super. 535
     (App. Div. 1996).            A
    7                          A-5356-14T4
    defendant's demeanor, physical appearance, slurred speech, and
    bloodshot eyes, together with an odor of alcohol or an admission
    of the consumption of alcohol and poor performance on field
    sobriety tests, are sufficient to sustain a DWI conviction.                  State
    v. Bealor, 
    187 N.J. 574
    , 588-89 (2006).
    Here, defendant operated his car erratically, smelled of
    alcohol, had watery eyes, exhibited boisterous behavior, admitted
    to drinking, and failed both field sobriety tests.                   Thus, there
    was   ample    evidence    in    the   record   supporting    defendant's       DWI
    conviction beyond a reasonable doubt.
    Because     there   was    obviously     probable     cause    to    arrest
    defendant for DWI under the totality of circumstances described
    above, and he thereafter refused to submit to a chemical breath
    test, we discern no basis for disturbing defendant's refusal
    conviction under N.J.S.A. 39:4-50.2.             See State v. Marquez, 
    202 N.J. 485
    , 503 (2012) (listing the elements that must be established
    to    uphold   a   refusal      conviction).     Finally,     Officer      Cerro's
    testimony that defendant veered from one lane to another, and
    drove at least fifteen miles over the speed limit, provided more
    than enough credible evidence to support defendant's conviction
    for careless driving under N.J.S.A. 39:4-97.
    We now turn to defendant's Point III, where he asserts that
    the municipal court judge improperly combined the trial on the
    8                                 A-5356-14T4
    charges   and   his   motion    to   suppress          evidence    into   a    single
    proceeding in violation of the principle that a judge should
    conduct these matters separately.                 Judge Rahill rejected this
    argument, finding that defendant's attorney "stipulated that the
    testimony from the motion to suppress [would] be incorporated into
    the trial."     Based on our review of the applicable case law as
    applied to the facts of this case, we also reject defendant's
    contention.
    Since at least 1989, the Municipal Court's Training Guide has
    counselled municipal court judges not to incorporate the evidence
    from a suppression motion into the trial record.                  State v. Gibson,
    
    219 N.J. 227
    , 240-41 (2014) (citing State v. Allan, 
    283 N.J. Super. 622
    , 630 (Law Div. 1995) (holding that the better practice is to
    conduct two separate proceedings unless both sides consent and
    defense counsel is given wide latitude in cross-examining the
    State's   witnesses)).         As   the       Court    explained    in    Gibson,     a
    suppression hearing and a trial are governed by different rules
    and have different purposes.              Id. at 241-42.           For example, a
    suppression hearing determines whether certain evidence may be
    excluded and the State may present hearsay evidence that would
    otherwise be inadmissible at a trial.                 N.J.R.E. 104(a).
    Thus, the Court held that the two proceedings may only be
    combined if both parties consent and the defense is granted the
    9                                   A-5356-14T4
    opportunity to fully cross-examine the State's witnesses on all
    issues raised.        Gibson, supra, 219 N.J. at 248-49.        "Following
    this procedure[,]" the Court found, "underscores the separate
    nature of each proceeding, the limited scope of a suppression
    motion,   and   the    different   standards   of   proof   governing   each
    proceeding."     Id. at 245.        In cases where this rule was not
    followed by the municipal court, the Court ruled that the matter
    should be remanded for a new trial.        Id. at 249.4
    In Allan, defense counsel vehemently objected to having the
    evidence adduced at the motion to suppress proceeding incorporated
    into the trial.       Allan, supra, 283 N.J. Super. at 628.      Moreover,
    the municipal court judge did not permit defense counsel to cross-
    examine a police officer at the trial concerning the officer's
    testimony at the earlier suppression hearing.           Id. at 629.     As a
    result, the Law Division found that the municipal court judge
    4
    The parties each devote a portion of their briefs to a debate
    over whether the Supreme Court's Gibson decision, which was
    rendered less than two months after defendant's trial, should be
    applied retroactively. As noted above, the general rule for over
    twenty-five years has been that the motion to suppress hearing
    should be conducted separately from a DWI or refusal trial. Allan,
    supra, 283 N.J. Super. at 630.     Moreover, prior to defendant's
    trial, we had already issued our decision in State v. Gibson, 
    429 N.J. Super. 456
    , 468 (App. Div. 2013), rev'd on other grounds, 
    219 N.J. 227
     (2014), which also criticized the practice of relying on
    suppression hearing evidence in the trial on the merits of a DWI
    matter without the parties' consent.      Thus, we will apply the
    Gibson decision to the facts of this case.
    10                             A-5356-14T4
    "infringed upon the defendant's constitutional right to confront
    the witness against him" and remanded the matter for a new trial.
    
    Ibid.
    Similarly,   in     Gibson,     a    motion     to   suppress      hearing    was
    conducted prior to the trial.              Gibson, supra, 219 N.J. at 233.
    Immediately after the municipal court judge denied the defendant's
    suppression    motion,    he   began      the    trial    and   incorporated      the
    testimony from the suppression hearing into the trial record.                      Id.
    at 234-35.    In doing so, the judge did not allow the defendant's
    attorney to further cross-examine the police officer who had
    earlier testified for the State at the suppression hearing.                        Id.
    at 235.      Although the defendant's attorney did not object to
    combining the motion to suppress record and the trial, he also did
    not consent to proceeding in this fashion.                      Ibid.     The Court
    therefore concluded that a new trial was necessary.                     Id. at 249.
    The facts of this case are in no way similar to those
    presented in Gibson or Allan.            Here, the parties appeared on July
    29, 2014, for the purpose of conducting a trial on the charges
    pending against defendant. Although, on July 17, 2014, defendant's
    newly-retained    attorney     had       filed   a   motion     to   suppress     "all
    evidence seized as a result of a warrantless search that occurred
    on" the day of defendant's arrest, the attorney did not bring this
    11                                  A-5356-14T4
    motion to the municipal court judge's attention at the beginning
    of the trial.
    Instead, defense counsel asked for an adjournment of the
    trial to permit him to retain an expert to replace the one
    defendant had previously engaged.            When the judge denied this
    motion, the attorneys and the judge discussed the schedule for the
    day.    After the judge confirmed with the court clerk that "[t]he
    whole day" had been set aside for the trial, defendant's attorney
    mentioned that one of his two experts would not be available until
    noon.      At no time did defendant's attorney ask the judge to
    consider a motion to suppress evidence.
    The judge then commenced the trial with the State presenting
    the testimony of Officer Cerro. At the conclusion of the officer's
    direct examination, defendant's attorney thoroughly cross-examined
    him on all issues relating to the charges involved in the trial.
    After   the   State   rested,      defendant's   attorney   presented     the
    testimony of both of his experts.          Again, there was no mention of
    a motion to suppress.
    After defendant rested, the judge asked, "Any motions by
    anyone?"      In   response   to   that    standard   inquiry,   defendant's
    attorney for the first time stated, "Your Honor, I filed a motion
    to suppress which I think was really incorporated within the entire
    trial[.]"     The judge responded by noting that defendant's motion
    12                             A-5356-14T4
    was "really not timely[,]" but he would consider it.                The judge
    then   found      that   Officer   Cerro   had   probable   cause    to   stop
    defendant's car after he observed defendant speeding and driving
    carelessly.       Therefore, the judge denied the motion to suppress
    the evidence of alcohol use the officer observed after the motor
    vehicle stop.
    The judge next asked defense counsel if there was "[a]nything
    else" and the attorney stated, "Not in that regard, Your Honor,
    no."    The judge then proceeded to render his findings on the
    charges.
    Thus, this case is nothing at all like Gibson or Allan, where
    the defendants were forced to have evidence adduced at an earlier
    suppression hearing incorporated into the trial record without
    their consent and without the opportunity to fully cross-examine
    the witnesses on the charges themselves.             Unlike in those cases,
    both parties were fully aware that a trial was going to be
    conducted on July 29, 2014.          Defendant also had the opportunity
    to fully cross-examine Officer Cerro on his reasons for stopping
    defendant's car and the officer's observations after that stop all
    the way through to defendant's refusal to submit to a chemical
    breath test.
    The only reason there was any "combination" of the trial and
    a   motion   to    suppress   here   was   because    defendant's    attorney
    13                              A-5356-14T4
    belatedly asked the judge to consider a motion to suppress at the
    very   end   of    the   trial.   Clearly,   the   judge's   decision    to
    accommodate defendant's late motion did not implicate any of the
    concerns that led the Gibson court to prohibit the use of testimony
    and evidence presented at a pre-trial suppression hearing at a
    later trial on the merits.         Therefore, we reject defendant's
    arguments on this point.
    Affirmed.
    14                             A-5356-14T4