STATE OF NEW JERSEY v. WALTER ZALEWSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0511-02T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER S. ZALEWSKI,

Defendant-Appellant.

________________________________________________________________

 

Argued February 28, 2006 - Decided March 24, 2006

Before Judges Lefelt and R. B.

Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Morris

County, Indictment No. 01-138.

Appellant, Walter S. Zalewski,

argued the cause pro se.

Paula Jordao, Assistant Prosecutor,

argued the cause for respondent

(Michael M. Rubbinaccio, Morris

County Prosecutor, attorney; Ms.

Jordao, on the brief).

PER CURIAM

Defendant Walter Zalewski appeals from his convictions for driving while intoxicated, N.J.S.A. 39:4-50, and refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. Defendant claims error in the police stop of his vehicle, failure to permit inspection of his alleged flat tire, failure to provide discovery and a speedy trial, and prosecutorial and judicial misconduct.

We briefly summarize the pertinent facts leading to defendant's arrest and prosecution. Defendant was stopped by the Morristown police allegedly for driving about forty miles per hour on a flat tire. According to the police, defendant's actions and physical condition after the stop provided probable cause to arrest defendant for drunk driving. Later at police headquarters defendant refused a breath test.

Defendant strongly disagrees with the State's position and, at his municipal court trial, presented over one dozen witnesses supporting a conspiracy theory. According to defendant, the police deflated his tire to justify stopping his vehicle and arresting him for drunk driving. Defendant claimed to have had only one drink and to have performed all field tests flawlessly. He rejected the breathalyzer test because the officer mumbled the rights and warning instructions and defendant did not trust the officer in any event.

Upon appeal from his conviction after a trial de novo in the Law Division before Judge Langlois, defendant first argues that the police lacked reasonable suspicion to stop his vehicle. This argument, as are many advanced by defendant in this appeal, is based upon defendant's view that the evidence presented by his witnesses was more believable than the State's evidence. Generally, however, "it is the trial court in which we repose the ultimate responsibility for determining whether a witness is truthful." State v. Segars, 172 N.J. 481, 501 (2002). We will not "alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999). No such error has been demonstrated here as both Judge Langlois and Municipal Court Judge Noonan carefully, thoroughly, and persuasively explained why they rejected defendant's defense.

We find no violation of defendant's constitutional rights when the police refused to allow defendant to view the flat tire at the scene of the stop on heavily traveled Route 287. The tow truck driver testified that the tire was flat when he arrived and the arresting officer explained that safety concerns caused the officer to deny defendant's request to view the tire. The only reason to question this testimony would be if we accepted defendant's conspiracy theory. On this record, however, we are bound by and find no reason to disagree with the rejection of defendant's factual theory by both the Law Division as well as the municipal court. Ibid.

As defendant points out, the prosecution "lasted slightly short of three years." The State conceded that defendant's prosecution was unduly delayed. Over one year and four months passed between defendant's arrest and the beginning of his trial in municipal court, and the exact causes which delayed the start of trial are not quite clear because of ambiguity and gaps in the record supplied on appeal. In any event, after trial began, defendant presented a lengthy and thorough defense. Due to scheduling difficulties in accommodating over a dozen defense witnesses and many exhibits, the trial stretched over almost eighteen months.

Although, at oral argument, defendant claimed his July 1999 letter, when considered in context, was a request for a speedy trial, we disagree. The letter merely discussed a possible start date for an August trial session and contemplated beginning the defense case at a later date. Although defendant and some of his witnesses undoubtedly were inconvenienced, at least financially and emotionally, by the delays, defendant's ability to defend the charges was not impaired. In addition, defendant retained his driving license throughout this period, and there is no showing that the State deliberately acted to hinder the progression of defendant's prosecution. Accordingly, we agree with Judge Langlois that the lengthy prosecution did not violate defendant's right to a speedy trial. See State v. Fulford, 349 N.J. Super. 183, 189 (App. Div. 2002); State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999).

Defendant further contends "[t]here was a total lack of co-operation with the State in respect to providing the identity of two Morristown Police Officers." Defendant asserts the "State did not honor discovery requests." In addition, defendant argues "prosecutor error" occurred when the prosecutor failed to show the arresting officer a sketch of the officer defendant claims was shining a light into his vehicle before defendant entered the car and drove toward the scene of the stop. Defendant has made no showing that the identities of all the officers who were present at any time before or during the stop of his vehicle were not provided to him or his attorney. Again, defendant's misconduct argument is dependent upon acceptance of the conspiracy theory, and we are bound by Judge Langlois's finding to the contrary. Locurto, supra, 157 N.J. at 474.

Moreover, after careful evaluation of defendant's plethora of assertions of error and misconduct by the prosecutor, we have concluded they are all without merit. In our opinion, defendant received a fair trial. See State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied sub nom., 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993) (explaining that prosecutorial misconduct will not justify reversal unless the conduct was so egregious as to deprive defendant of a fair trial).

Defendant also contends that judicial misconduct occurred in the municipal court. He takes issue with the municipal court judge's reference to defendant as a "drunk driver" and contends that it demonstrated the judge's assumption that defendant was guilty even before the trial had concluded. We agree that the judge should have referred to defendant as an alleged drunk driver, but whatever prejudicial prejudgment might be inferred from the comment was cured by Judge Langlois's trial de novo on the municipal court record. Upon appeal to this court, we review whether there was 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, 157, 162-64 (1964).

Defendant makes other allegations of municipal court judge misconduct, including the court's failure to: ensure defendant's presence at one of the trial dates, allow defendant to make a statement at sentencing, take judicial notice, recognize the unfairness of asking defendant to perform a one leg balance test on top of acorn-size rocks, recognize that cruel and unusual punishment was inflicted on defendant, find that a professor who testified for defendant was not speculating, and advise defendant of his right to appeal. We have reviewed each of these allegations in light of the record and the pertinent law and find them to be without merit. The allegations are either not supported by the record; harmless, if error; or cured by Judge Langlois's trial de novo. Upon appeal from the municipal court to the Law Division, the Law Division judge makes a new decision, "giving due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." Johnson, supra, 42 N.J. at 157.

To the extent we have not specifically mentioned any other arguments advanced by defendant, it is only because they had insufficient merit to warrant discussion in a written decision, R. 2:11-3(e)(2), and were not set forth in separate point headings as required by R. 2:6-2(a)(5).

 
Affirmed.

(continued)

(continued)

5

A-0511-02T3

March 24, 2006