STATE OF NEW JERSEY v. PATRICK D. MACMENAMIN, II

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4604-06T24604-06T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK D. MACMENAMIN, II,

Defendant-Appellant.

________________________________________________________________

 

Argued March 10, 2008 - Decided

Before Judges S.L. Reisner, Gilroy and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Appeal No. 80-06.

John Menzel argued the cause for appellant.

Peter J. Gallagher, Assistant Prosecutor, argued the cause for respondent (Theodore F.L. Housel, Atlantic County Prosecutor, attorney; Mr. Gallagher, on the brief).

PER CURIAM

Defendant Patrick D. MacMenamin appeals from his May 4, 2007 conviction at a trial de novo in which the Law Division found him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breathalyzer examination, N.J.S.A. 39:4-50.2. On the DWI conviction, the Law Division imposed appropriate monetary fines and penalties and suspended defendant's driving privileges for a period of ten years because of his two prior DWI convictions. The judge also imposed a mandatory jail term of 180 days. On the refusal charge, the Law Division imposed appropriate monetary fines and penalties as well as a ten-year suspension of defendant's driving privileges, to run consecutive to the ten-year suspension imposed on the DWI conviction. We affirm.

I.

Defendant argued in the municipal court, and the Law Division and again argues before us on appeal, that he was not the driver of the vehicle on the night in question. Much of the trial testimony is not in dispute. We confine our review of the record to the evidence that pertains to the question of whether the State proved beyond a reasonable doubt that defendant was the operator of the vehicle.

At approximately 9:00 p.m. on July 30, 2006, three Absecon police officers, Robert Ketschek, Detective Robert Ponzetti and Patrolman Gorham were dispatched to an accident scene at the corner of Haddon Avenue and Route 30 in Absecon. Upon arrival, they discovered a Ford Explorer that had driven off the road and was resting against some trees. The vehicle had no occupants. Patrolman Gorham located defendant standing approximately 150 feet from the scene of the accident in front of a Budget Inn. Defendant was the only pedestrian in the area.

Detective Ponzetti testified that when he asked defendant whether he was the driver, defendant replied, "I f***ed up. Yes." Once defendant spoke, Ponzetti noticed defendant smelled of alcohol. Ponzetti also observed that defendant's eyes were bloodshot and his words were slightly slurred. When Ponzetti asked him if he had been drinking, defendant replied that he had been drinking at a friend's house. Consequently, Ponzetti asked him to perform three sobriety tests, all of which defendant failed. According to Ponzetti, defendant was apologetic and kept asking Ponzetti not to take him to the police station because "it would ruin his life." Ponzetti then placed defendant under arrest and transported him to the DWI processing room in the police station.

In the processing room, a videotape was running. The tape shows defendant as emotionally upset and constantly repeating "I'll never do it again." He also sobbed that his life was ruined. Detective Ponzetti testified that defendant offered police $10,000 "to make this all go away." Officer Ketschek administered Miranda warnings to defendant and then read him the first part of the standard request to submit a breath sample. When asked whether he would submit a breath sample, defendant replied "not sure yet." When asked for a second time whether he would submit a breath sample, defendant replied "I don't know."

Never during the entire evening, either at the roadside or in the DWI processing room at police headquarters, did defendant ever say he was not the driver. Nor did he volunteer any information about another person having been in the car.

The first time defendant claimed he was not the driver was at trial. He testified that he called his friend Walter Hauck to ask him to come to the Musket Tavern to pick him up because he had been drinking. According to defendant, Hauck's father dropped Walter off at the tavern and defendant gave Walter his car keys so that Walter could drive him home. According to defendant, he was sitting in the passenger seat while Walter drove and got into an accident. When defendant climbed out of the car, Walter was already gone and he did not see where Walter went.

Defendant testified that when Detective Ponzetti asked him whether he had been driving the car, defendant thought he was being asked whether he owned the vehicle. He insisted that when he said "this is f***ed up," he was referring to the situation itself and not to being the driver. Specifically, defendant stated, "I thought I was saying I wasn't the driver, and that the driver ran, and that everything just kind of happened so fast, next thing you know I was arrested for DWI, and I thought that's what was happening." When asked on cross-examination whether he ever told the officers that he was not the driver, defendant responded that he was confused at the time and did not know what was going on.

Hauck's testimony corroborated defendant's. He maintained that he almost missed a jug handle turn and consequently took the turn too sharply, causing the accident. According to Hauck, the Explorer was on its side when he climbed out and "took off running" because he did not have a driver's license. He maintained that he ran approximately one mile up the road to a grocery store where he called his friend Eugene Martz to come pick him up. Martz testified that he picked Hauck up at a grocery store in Absecon at approximately 9:30 or 10:00 p.m. on the night in question. According to Martz, he did not ask Hauck any questions, nor did Hauck offer any information or say that he had been in an accident that night. At the conclusion of the testimony, the municipal court judge found defendant guilty of DWI and refusal. Defendant filed an appeal to the Law Division.

In a written opinion issued at the conclusion of the trial de novo, the Law Division made detailed findings of fact in support of its finding that defendant was the operator of the vehicle and that the State proved both charges beyond a reasonable doubt. Additionally, the judge rejected the following arguments made by defendant: his drunken state prevented him from understanding Detective Ponzetti's instructions to provide a breath sample; it is unconstitutional to shift the burden to a defendant to affirmatively establish a defense of "confusion over his legal rights" in relation to the decision whether to submit breath samples; and he was entitled to a trial by jury in the municipal court. He also argued that his prior convictions did not warrant treating him as a third-time offender for purposes of sentencing on his conviction for refusal.

On appeal, defendant presents the same arguments that he presented in the Law Division, and adds one additional claim: the Law Division applied an improper standard of review when it evaluated the evidence in the record. Specifically, defendant argues that the Law Division improperly gave deference to the factual findings of the municipal court judge, thereby "blindly defer[ring]" to those findings rather than conducting a trial de novo on the record. We disagree with all of these contentions and affirm.

II.

We turn first to defendant's arguments concerning the standard of review applied by the Law Division. The judge described the role of the Law Division in a trial de novo as determining "whether the findings made [in the municipal court] could reasonably have been reached on sufficient credible evidence present in the record." The judge relied upon State v. Locurto, 157 N.J. 463, 471 (1999), for that proposition.

We agree with defendant's argument that the judge misstated the applicable standard of review. The standard of review the Law Division judge recited is actually the standard of review used by this Court in evaluating the findings of fact made by a trial judge. In contrast, in a trial de novo, the Law Division is obliged to disregard the findings of fact made by the municipal court judge and evaluate the evidence anew. State v. Joas, 34 N.J. 179, 189 (1961). In the context of a trial de novo, the Law Division "does not affirm or reverse what occurred in the municipal court. Rather, the . . . judge reviews the transcript and makes an independent determination of the sufficiency of the evidence presented, giving appropriate deference to any credibility assessments that the municipal court judge may have made." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004).

We have carefully reviewed the written opinion of the Law Division judge and are satisfied that he applied the standard that is demanded by both Joas and Kashi. Nowhere in his written opinion does the judge even refer to the factual findings made by the municipal court judge. Instead, the judge made his own findings of fact, all of which are extremely detailed. Defendant conceded at argument that the Law Division judge is an experienced judge who has handled many municipal appeals and knows the correct standard of review. Under these circumstances, we are satisfied that the correct legal standard was applied.

III.

In Point II of defendant's brief, he argues that the Law Division committed reversible error when it refused to permit him to reopen the record for the purpose of introducing a towing receipt from the company that towed his vehicle on the night in question. According to defendant, the towing receipt specifies that his vehicle was on its side at the time the towing company arrived. Defendant argues that the Law Division should have exercised its discretion to admit the document because the document would have bolstered Hauck's credibility. Specifically, Hauck's account of whether the vehicle was on its side or resting on all four wheels differed from the testimony of Detective Ponzetti whom the municipal court found credible. Defendant maintained that if the towing receipt had been admitted in evidence, one of the bases for rejecting Hauck's credibility and disregarding Hauck's testimony that he was the driver would have disappeared.

The State argues that even if the Law Division erred by not admitting the towing receipt, any such error was harmless. In particular, the State argues that there were many other reasons to find Hauck's testimony not worthy of belief, over and above the discrepancy between Hauck's testimony and Ponzetti's on whether the vehicle was on its side. Specifically, the State points to nearly a dozen separate instances in Hauck's testimony in which he claimed he could not remember facts that he should have been able to remember had he actually been present, and driving the car, as he claimed. Hauck testified that he could not remember: how he got out of the car; how defendant got out of the car; where the vehicle came to rest; whether it was on the paved roadway or some other place; the direction he ran when got out of the car; whether he had heard any sirens; whether he had seen any police cars; whether he had seen any flashing police lights; and the name of the store where he was standing when he called Martz to ask him to pick him up.

We need not decide if the Law Division's refusal to supplement the record by admitting the towing receipt was error. We agree with the State's argument that even if there was error, it would not have changed the outcome of the trial. Regardless of whether Hauck was correct about the vehicle's position after the accident, the balance of his trial testimony was so vague as to be unconvincing and provided an ample basis to support the municipal court's determination that he was not credible. Moreover, the Law Division's conclusion that defendant, not Hauck, was the driver was based upon a considerable body of evidence concerning defendant's own conduct, over and above Hauck's lack of credibility. The Law Division relied upon: defendant's admission to Detective Ponzetti that he was the driver of the vehicle; his sobbing and crying in the DWI processing room that he would never drink and drive again; and his offer of a bribe to police officers. We agree with the Law Division's conclusion that the record proved beyond a reasonable doubt that defendant was indeed the driver of the vehicle. We are satisfied that had the towing receipt been admitted into evidence, the result would not have changed. Accordingly, we conclude that the decision to bar the towing receipt, even if it was error, was harmless.

IV.

In Point III of defendant's brief, he argues that Hauck's testimony that he was the actual driver of the car raised a reasonable doubt as to the element of motor vehicle operation and that the Law Division committed reversible error of law when it found otherwise. We have carefully considered this argument in light of the record and applicable law and conclude that it lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). We add only the following comments. We defer to the findings of fact made by the Law Division. So long as there is substantial sufficient and credible evidence in the record to support the finding of guilt made by the Law Division, we will not disturb the judge's assessment of the evidence and the conclusions he reached therefrom. Locurto, supra, 157 N.J. at 470-71.

V.

In Point IV, defendant argued that his extreme state of intoxication created confusion thereby preventing him from forming the intent to deliberately refuse to submit a breath sample. Specifically, he argues that he was given two sets of warnings, Miranda warnings as well as the warnings concerning his obligation to submit a breath sample. The Miranda warnings instructed him that he had the right to refuse to make a statement, while the breath sample warnings afforded no right to refuse. According to defendant, these two sets of warnings led to confusion about whether he had the right to refuse to provide a breath sample.

We reject defendant's confusion defense for two reasons. First, our Supreme Court has never recognized confusion as a defense to refusal to provide a breath sample. See State v. Leavitt, 107 N.J. 534, 542 (1987). Second, the record is devoid of any evidence supporting defendant's claim of confusion. Although the record contains evidence that defendant said he was confused about his Miranda rights, the record is devoid of any evidence demonstrating that defendant was confused about his absolute obligation to provide a breath sample. Accordingly, the Law Division did not err when it rejected the defense of confusion.

VI.

In Point V, defendant argues that the Law Division committed reversible error when it rejected his argument that it is unconstitutional to require a defendant to establish the affirmative defense of confusion, in light of the State's obligation to establish all elements of the refusal offense beyond a reasonable doubt. Like the Law Division, we conclude that it is not necessary to address the merits of this claim because the record is devoid of any evidence suggesting that he was confused about his obligation to submit to the breath test. We defer to the Law Division judge's factual finding that defendant was not confused.

VII.

In Point VI, defendant argues that the Law Division erred in sentencing him as a third-time offender under the refusal statute. According to defendant, the enhanced third-penalty provision should be interpreted to require three convictions for refusal, and the State should not be permitted to use prior DWI convictions as prior offenses for sentencing purposes. The refusal statute, N.J.S.A. 39:4-50.4a(a), provides in pertinent part:

Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S. 39:4-50, shall refuse to submit to a test provided for in section 2 of P.L. 1966, c. 142 (C. 39:4-50.2) when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years.

We have consistently held that a prior DWI conviction counts as a prior offense "under this section" for purposes of determining whether the defendant is subject to the enhanced refusal penalty. See, e.g., State v. Lucci, 310 N.J. Super. 58, 60 (App. Div.), certif. denied, 156 N.J. 386 (1998); State v. Fielding, 290 N.J. Super. 191, 193 (App. Div. 1996). Thus, a person with two prior DWI convictions who is then convicted of refusing to submit a breath sample will be sentenced as a third-time offender under the refusal statute. Ibid. In light of Lucci and Fielding, we conclude that the trial court properly sentenced defendant as a third-time offender under the refusal statute.

VIII.

In Point VII, defendant argues that if his conviction is upheld on appeal, we should nonetheless remand the matter for a trial by jury. He asserts that he "faced serious consequences" as a result of the charges in question, and that such consequences entitle him to a trial by jury. His argument lacks merit. First, he never asserted his right to a jury trial in the municipal court. Not until he reached the Law Division did defendant advance this claim. By then, the trial was already over. We reject defendant's belated attempt to raise an issue that could have, and should have, been raised before the trial in the municipal court began. Second, the Court has held that "the statutory penalties for DWI are not so severe as to clearly reflect a legislative determination of a constitutionally 'serious offense requiring jury trial.'" 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). There is no right to a trial by a jury on DWI charges because the maximum sentence imposed cannot exceed six months. Unless the maximum sentence exceeds that amount, there is no right to a trial by jury. State v. Stanton, 176 N.J. 75, 87 (2003), cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003).

Affirmed.

Although the summons and the judgment refer to the refusal statute as N.J.S.A. 39:4-50.2, the correct citation is N.J.S.A 39:4-50.4. See State v. Cummings, 184 N.J. 84, 90 n.1 (2005).

See N.J.S.A. 39:4-50(a)(3), which requires a ten-year suspension of driving privileges upon a third conviction for DWI.

Patrolman Gorham did not testify and his first name is not contained in the record.

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

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A-4604-06T2

March 28, 2008