STATE OF NEW JERSEY v. STEPHEN RUSH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3153-04T23153-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN J. RUSH,

Defendant-Appellant.

____________________________________________

 

Submitted: December 13, 2006 - Decided December 29, 2006

Before Judges Stern and A. A. Rodr guez.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, MOR-A04-031.

Stephen J. Rush, appellant pro se.

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Stephen J. Rush, appeals from a judgment of the Law Division, that upheld on de novo review, a Roxbury Township Municipal Court conviction of defendant for driving while intoxicated (DWI), N.J.S.A. 39:4-50. The Law Division sentenced defendant to pay a $250 fine, $30 court costs, $50 Violent Crimes Compensation Board (VCCB), $75 Safe Neighborhood Services Fund (SNSF), and $200 DWI fund surcharge. In addition, defendant's driving privilege was suspended for three months and he was required to attend an Intoxicated Driver's Resource Center for forty-eight hours. The sentence was stayed until November 22, 2004. We affirm.

The charges against defendant arose out of the following incident. On April 1, 2004, Roxbury Township Police Officers, Jonathan Edmunds and Eric Henriksen, responded to an accident call on Howard Boulevard. At the scene, Edmunds saw a sports utility vehicle (SUV) rolled over on the driver's side and severely damaged. Edmunds saw tire marks and the high curb that the vehicle struck. Defendant was leaning against the road guardrail, with a small cut on his head. He was belligerent, argumentative and cursed at the officers repeatedly.

Edmunds detected a strong odor of alcohol on defendant and asked him what happened. Defendant continued to curse and babbled that he wanted to speak to an attorney before any questioning, and told Edmunds "to go f--- himself." Other officers at the scene noticed that there was a baby seat in the vehicle. Edmunds asked defendant if there were children in the vehicle. Defendant stated, "No, I was the only person in the car." The officers checked the interior of the vehicle and found a half-empty quart bottle of gin and one empty bottle of Bailey's Irish Cream. The Bailey's bottle was fresh with wet residue.

Defendant could not keep his balance and attempted to lean against the guardrail for support. While the officers were at the scene, defendant vomited three times. The smell of alcohol was so strong that it made Henriksen gag. Defendant's vomit smelled like Bailey's Irish Cream. Defendant required assistance from an officer to keep from falling to the ground. His speech was slurred. He reeked of alcohol and his face was flushed and sweaty.

Edmunds placed defendant under arrest. Defendant attempted to walk away while handcuffed. No field sobriety tests were performed because defendant could not do the tests safely as he could not keep his balance.

The rescue squad treated defendant and transported him to Dover Medical Center. Edmunds accompanied defendant to the hospital in the rescue squad vehicle. After receiving medical treatment, defendant was released to the custody of his wife.

On appeal, defendant contends that the guilty finding should be vacated "due to denial of discovery, lack of evidence, failure to provide Miranda warnings and prosecutorial mishandling." We have carefully considered defendant's contentions against the proofs and determine that the arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

First, we note that there was ample evidence to support findings that defendant was driving the SUV, and that he did so while intoxicated. State v. Locurto, 157 N.J. 463, 470-71 (1999). The absence of field sobriety tests is irrelevant. The officers' testimony based on their observations established the elements of operation and intoxication.

We reject defendant's contention that he was denied procedural due process due to "the initial failure to provide discovery until three days before the original trial date of May 13, 2004." We note that this date was adjourned and the trial in the municipal court was not held until two months later. We find no prejudice to defendant based on the timing of the release of discovery, nor in the granting of the adjournment. Moreover, the State did not introduce evidence of blood or breath alcohol readings because none were taken. Therefore, because the discovery did not contain such reports, there was no discovery violation.

We also reject defendant's Miranda argument. Even if defendant's statement, "No, I was the only person in the car," was to be suppressed, there was ample evidence that defendant was the operator of the SUV.

Lastly, defendant's proffered expert report was properly excluded. Such report was hearsay evidence that did not come within any of the recognized exceptions. N.J.R.E. 802. Furthermore, we note that defendant rejected the municipal court judge's suggestion of a postponement in order to take the testimony of the expert.

If defendant has not already done so, he must surrender his driver's license to the Roxbury Township Municipal Court no later than January 4, 2007.

 
Affirmed.

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

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A-3153-04T2

December 29, 2006