STATE OF NEW JERSEY v. HENRYK CHROSTOWSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2807-05T22807-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HENRYK CHROSTOWSKI,

Defendant-Appellant.

_______________________________

 

Submitted: October 4, 2006 - Decided November 9, 2006

Before Judges Kestin and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, L-0031-05.

Levow & Associates, attorneys for appellant (Evan M. Levow, of counsel and, with Kevin Leckerman, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from convictions in the Law Division, on de novo on the record appeal from the Hammonton Township Municipal Court pursuant to Rule 3:23-8(a), for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. We affirm.

The initial trial de novo proceeding in the Law Division occurred on September 1, 2005, concluding with an oral recitation by Judge Isman of his findings and conclusions. The confirming order of September 16, 2005 contained a judgment of conviction for DWI and, in the light of recently decided State v. Cummings, 184 N.J. 84 (2005), a limited remand of the refusal charge to the municipal court for "a determination . . . on the existing record[] as to whether or not the State established the defendant's guilt of refusal beyond a reasonable doubt[.]" The Law Division retained jurisdiction, deferring sentencing on the DWI conviction until the completion of the remand and a determination on the refusal charge. At the continued trial on December 22, 2005, Judge Isman concluded the refusal aspect of the matter, convicting defendant of that charge.

The ultimate order in the matter was entered on January 13, 2006. It recited that the municipal court had, on remand, determined the State to have met its heightened burden of proof on the refusal charge. Judge Isman found defendant guilty of that charge, and imposed sentence on both convictions. On the DWI conviction, the recited sentence was:

$1,006.00 fine; $33.00 court costs; $50.00 VCCB penalty; $75.00 SNSF assessment; $200.00 surcharges; ten year suspension of drivers license, commencing April 12, 2005; three year ignition interlock; and 180 days in the county jail, 90 of which may be served in an in-patient rehabilitation program[.]

The stated sentence on the refusal conviction was:

$1,006.00 fine; $33.00 court costs; $100.00 surcharge; ten year suspension of drivers license, consecutive to the ten year suspension ordered . . . above[.]

The custodial feature of the sentence was stayed pending appeal.

On appeal, defendant raises the following issues:

POINT I HENRYK CHROSTOWSKI'S RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSES OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS WERE VIOLATED WHEN THE LAW DIVISION IN VIEW OF THE DECISION IN STATE v. CUMMINGS ORDERED THE MUNICIPAL COURT TO REDETERMINE ON THE EXISTING RECORD WHETHER THE STATE PROVED A VIOLATION OF N.J.S.A. 39:4-50.4 BEYOND A REASONABLE DOUBT.

POINT II THE LAW DIVISION ERRED BY FINDING HENRYK CHROSTOWSKI GUILTY OF VIOLATING N.J.S.A. 39:4-50.4 WHEN APPELLANT PROVED THAT HE COULD NOT UNDERSTAND THE IMPLIED CONSENT WARNINGS.

POINT III THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO PROVE HENRYK CHROSTOWSKI GUILTY BEYOND A REASONABLE DOUBT OF VIOLATING N.J.S.A. 39:4-50.

Our review of the record in the light of the arguments advanced by the parties and prevailing legal standards discloses no basis for a reversal of either conviction.

We begin by observing that the Law Division's findings and conclusions of fact regarding both convictions were supported by substantial, credible evidence and are, therefore, binding on appeal. See State v. Locurto, 157 N.J. 463, 470-72 (1999); State v. Johnson, 42 N.J. 146, 160-62 (1964). There was evidence on both sides regarding defendant's English-language abilities in the context of his capacity to understand the police officer's instructions on the scene regarding performance of the field tests, the Miranda* warnings that were given both on the scene and at police headquarters following arrest, and the standard questions and warnings regarding the breathalyzer test. The evidentiary record provides ample support for the Law Division's conclusion that defendant was sufficiently proficient in the English language to support guilty determinations. And, there was ample testimony in the record to undergird the findings and conclusions that defendant was, indeed, guilty of both the DWI and refusal charges.

We discern no double jeopardy violation in the Law Division's temporary remand of the refusal charge to the municipal court for initial application of the newly declared rule of Cummings, which raised the standard of proof in refusal matters from the preponderance-of-the-evidence level to the beyond-a-reasonable-doubt level. The Law Division was certainly required to apply the newly established standard in its de novo review. There was no lapse of discretion in its determination to allow the lower trial court the first opportunity to pass on the sufficiency of the evidence in the light of the newly established standard. We reject the premise of defendant's double jeopardy argument that the municipal court's initial determination that the State had prevailed by a preponderance of the evidence precluded a later determination that the State had also met the higher beyond-a-reasonable-doubt standard.

The Law Division's de novo review responsibilities were fully discharged on its review of the record after remand. We are in substantial agreement with Judge Isman's decisional rationale in resolving all the related legal and factual issues in his oral opinions of September 1 and December 22, 2005.

Affirmed.

 

* Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-2807-05T2

November 9, 2006