STATE OF NEW JERSEY v. HENRY MAREK

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3285-04T53285-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HENRY R. MAREK, JR.,

Defendant-Appellant.

_____________________________

 

Argued January 23, 2006 - Decided March 9, 2006

Before Judges Holston, Jr., and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 92-04.

John Menzel argued the cause for appellant.

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

PER CURIAM

Defendant, Henry R. Marek, Jr., appeals from his conviction for refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a, after a trial de novo in the Law Division. We affirm.

On May 30, 2004, defendant was issued motor vehicle summonses in Linwood charging him with violations of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a); refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; reckless driving, N.J.S.A. 39:4-96; and speeding, N.J.S.A. 39:4-98. The case was tried in the Linwood municipal court before Judge Broome on September 27, 2004. Judge Broome found defendant guilty of the charges of DWI and refusing to submit to a breathalyzer test, and dismissed the remaining charges. Defendant was sentenced as a third offender under the DWI statute, and as a first offender under the refusal statute.

On appeal to the Law Division, Judge Garofolo found defendant not guilty of DWI, but found him guilty of refusing to submit to a breathalyzer test, stating that he was "absolutely satisfied beyond a reasonable doubt that [defendant] refused the breathalyzer." Determining that defendant had two prior convictions for DWI, Judge Garofolo sentenced defendant as a third offender under the refusal statute. Defendant was sentenced to a revocation of driving privileges for ten years, a $1,000 fine, and was directed to serve twenty-four hours at an approved Intoxicated Driver Resource Center (IDRC). Other appropriate assessments, penalties and costs were also imposed.

On appeal, defendant argues:

POINT I.

THIS COURT SHOULD REDUCE DEFENDANT'S DRIVING PRIVILEGE REVOCATION FOR BREATH TEST REFUSAL FROM TEN YEARS TO SEVEN MONTHS BECAUSE, UNDER THE MOST RATIONAL READING OF THE STATUTE, THIS IS DEFENDANT'S FIRST CONVICTION FOR REFUSAL.

POINT II.

THIS COURT SHOULD DECLARE THE BREATH TEST REFUSAL STATUTE INVALID BECAUSE THE "PREPONDERANCE OF THE EVIDENCE" BURDEN OF PROOF PRESCRIBED FOR SUCH REFUSAL VIOLATES DUE PROCESS AND IS, THUS, UNCONSTITUTIONAL (NOT RAISED BELOW).

POINT III.

IF DEFENDANT IS NOT ACQUITTED, THIS COURT SHOULD VACATE HIS CONVICTION AND REMAND HIS CASE FOR A JURY TRIAL BECAUSE HE FACED SERIOUS QUASI-CRIMINAL AND CIVIL CONSEQUENCES AS A DIRECT RESULT OF THE MUNICIPAL COURT PROCEEDINGS (NOT RAISED BELOW).

Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J 599, 615 (1997) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. 162. (internal citations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have considered the contentions raised in light of the record and the applicable law. We are convinced they are of insufficient merit to warrant full discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following.

Under Point I, defendant argues that Judge Garofolo should not have used his prior DWI convictions under N.J.S.A. 39:4-50(a), to enhance the penalties when sentencing him on his conviction of refusing to take a breathalyzer test under N.J.S.A. 39:4-50.4a, when this was his first conviction for refusal. Defendant cites State v. DiSomma, 262 N.J. Super. 375, 378 (App. Div. 1993), where this court stated that "we do not necessarily agree with that interpretation," referencing other decisions that held if a defendant had a prior conviction for DWI, a subsequent refusal conviction would lead to second offender status. We conclude that DiSomma provides little support for defendant's contention. DiSomma involved the opposite side of the coin, i.e., whether a defendant with a prior conviction for refusal may be sentenced as a second offender under the DWI statute. DiSomma, supra, 262 N.J. Super. at 377. That portion of DiSomma referenced by defendant is only dicta. Contrary to defendant's contention is our holding in State v. Lucci, 310 N.J. Super. 58 (App. Div.), cert. denied, 156 N.J. 386 (1998).

In Lucci, defendant was convicted of both DWI and refusing to submit to a breathalyzer test. He had two prior DWI convictions, and one prior refusal conviction. On appeal to this court, the DWI conviction was reversed and vacated, and the refusal conviction affirmed. This court vacated the sentence on the refusal conviction, and sentenced the defendant as a third offender because of his prior DWI convictions. In so doing, we stated: "We have consistently held that prior DWI convictions are 'subsequent offense[s] under this section.'" Id. at 60 (alteration in original). See also State v. Fielding, 290 N.J. Super. 191, 193 (App. Div. 1996); State v. Tekel, 281 N.J. Super. 508, 510 (App. Div. 1995).

As to defendant's argument under Point II concerning the burden of proof required for a conviction under the refusal statute, the issue has been rendered moot by the Court's recent opinion in State v. Cummings, 184 N.J. 84, 96 (2005), where the Court held that "for prosecutions under N.J.S.A. 39:4-50.4a, the State must prove the statutory elements of a defendant's refusal to submit to a breathalyzer test beyond a reasonable doubt." In light of the decision in Cummings, increasing the burden of proof for breathalyzer refusal prosecutions, and the Court giving "pipeline retroactivity" to the new rule, at oral argument, defendant requested that we reverse and remand for a new trial. Id. at 99. If defendant had been convicted by the Law Division judge applying the preponderance of the evidence standard, or if defendant had been convicted by way of a retraxit guilty plea, we would remand under Cummings because of the change in the burden of proof. Here, however, defendant was convicted after a full trial, and the Law Division judge found him guilty "beyond a reasonable doubt." Accordingly, we reject defendant's contention that the matter must be reversed and remanded.

Concerning defendant's last argument that because he was subject to the penalties as a third offender on the charge of refusing to submit to a breathalyzer test, he was entitled to a jury trial below, we reject the argument. The penalties for a third offender under the refusal statute do not include incarceration. The Court in State v. Hamm, 121 N.J. 109, 111 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991), held that although a defendant charged as a third offender under DWI statute is subject to incarceration, he or she is not entitled to a jury trial. Accordingly, defendant is not entitled to one under the refusal statute.

 
Affirmed.

The traffic summons issued to defendant charged him with refusing to submit to a breathalyzer test, citing N.J.S.A. 39:4-50.2. The statute cited, however, is the statute pursuant to which all operators of motor vehicles "shall be deemed to have given his [or her] consent to the taking of samples of his [or her] breath for the purpose of making chemical tests to determine the content of alcohol in his [or her] blood." The penalty provision for refusing to submit to a breathalyzer test is set forth in N.J.S.A. 39:4-50.4a.

We note that defendant did not raise the issues presented under Points II and III to the courts below. "Normally, we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ." Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). However, because the issues were thoroughly briefed by the parties, we entertain the issues raised.

Under "pipeline retroactivity," the new rule "applies in [Cummings], in future cases, and in any case still on direct appeal" at the time Cummings was decided. Id. at 99.

See N.J.S.A. 39:4-50.4a(a), for general penalties for refusing to submit to a chemical test, and Section (b), for penalties if the offense occurs within 1,000 feet of school property.

N.J.S.A. 39:4-50(a)(1),(2), and (3).

(continued)

(continued)

7

A-3285-04T5

March 9, 2006

 


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