STATE OF NEW JERSEY v. SHANNON T. CURRY

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2210-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANNON T. CURRY,

Defendant-Appellant.

_______________________________________

November 18, 2010

 

Argued October 26, 2010 Decided

 

Before Judges Yannotti and Espinosa.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 08-094.

 

John Menzel argued the cause for appellant.

 

Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, MonmouthCounty Prosecutor, attorney; Ms. do Outeiro, on the brief).

PER CURIAM

Defendant Shannon T. Curry appeals from her conviction of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50, and the sentence imposed. For the reasons that follow, we affirm.

I.

On January 27, 2007, Marilyn Crescitelli (Crescitelli) was driving south on Route 35 near the bridge from Brielle to Point Pleasant Beach. Crescitelli observed a silver Cadillac enter the highway without stopping or yielding, forcing Crescitelli to move to the left lane.

Crescitelli saw the Cadillac strike the guard rail and cement barrier of the bridge. The Cadillac approached the traffic light after the bridge, drove across the two lanes and onto the shoulder of the highway. Crescitelli estimated that the Cadillac was traveling at between forty and forty-five miles per hour.

Crescitelli thought the driver might have been hurt. She followed the Cadillac, which made a sharp turn into a parking lot. Crescitelli pulled over and called the police. She gave the police a description of the woman who had been driving the car. She saw the driver exit the vehicle and enter a white building or house. Crescitelli testified that she was not "one hundred percent" sure that defendant was the person who had been driving the car.

Sergeant Robert Goessel (Goessel) of the Point Pleasant Beach Police Department (PPBPD) testified that he had been dispatched to investigate the matter. He observed a light- colored Cadillac in the parking lot, with damage on its right hand side. Goessel knocked on the front door of the building. No one answered. Goessel knew there was an apartment on the second floor. He went up the outside stairs to the second floor and knocked on the door.

A man came to the door. Goessel told the man that the police had received a report that the vehicle in the parking lot had been involved in an accident. Goessel asked if the driver of the vehicle was at home. The man called into the apartment and defendant came to the door.

Goessel told defendant that the police had received a report that her vehicle had been involved in an accident. Goessel said that he would need to see her driver's license, vehicle registration and insurance card. Defendant told Goessel that the documents were in the car. Defendant and Goessel went down the stairs to the parking lot, and defendant retrieved the documents.

Goessel asked defendant if she remembered the portion of the bridge that she hit. Defendant said she struck the bridge "on the rise," which indicated to Goessel that the accident occurred in Brielle. Goessel accordingly contacted the PPBPD dispatcher and asked to have a police officer from Brielle respond to the scene.

Patrolman Michael Mechler (Mechler) of the Brielle Police Department (BPD) arrived and spoke with defendant. Mechler noticed that defendant's eyes were bloodshot and she was swaying from side to side. Mechler also detected the odor of an alcoholic beverage on defendant's breath when he spoke with her.

Mechler asked defendant if she had consumed any alcoholic beverages. She replied, "Please don't do this." Defendant said that she was about to enter a rehabilitation program. Mechler asked if defendant had anything to drink after she arrived home. Defendant stated that she "drank earlier in the day."

Mechler asked defendant to perform several psychophysical tests. Defendant was not able to successfully complete the tests. Mechler testified that based on defendant's statements and his observations, he formed an opinion that defendant was under the influence of alcohol. Mechler arrested defendant and placed her in handcuffs. Mechler informed defendant of her rights under Miranda.1

Mechler placed defendant in the back of his police vehicle and drove to police headquarters. Mechler said that the interior of his vehicle was filled with the odor of an alcoholic beverage, and the odor had not been present before. According to Mechler, during the ride, defendant said "[s]omething along the lines of please don't do this." Defendant also pointed out the spot where her car made contact with the guard rail of the bridge.

When they arrived at the police station, Mechler again informed defendant of her Miranda rights. She read the Miranda rights form and initialed several lines but she did not sign the waiver section of the form. Defendant agreed to submit breath samples and Mechler administered a Breathalyzer test. Defendant provided two breath samples. Both indicated a blood alcohol level of 0.19 percent.

Defendant was charged with DWI, N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; leaving the scene of an accident, N.J.S.A. 39:4-129; failure to report an accident, N.J.S.A. 39:4-130; and failure to maintain lane, N.J.S.A. 39:4-88(b). The municipal court denied defendant's motion to suppress the statements she made to the police. The court found defendant guilty of DWI and leaving the scene of an accident, but not guilty of the other charges.

Defendant sought de novo review in the Law Division, which conducted a hearing in the matter on December 11, 2009. The trial court also denied defendant's motion to suppress the statements she made to the police. The court found defendant guilty of DWI but not guilty of leaving the scene of an accident. According to the court, the latter charge "merge[d]" with the DWI conviction.

Defendant sentenced defendant pursuant to N.J.S.A. 39:4-50(a)(3) as a third DWI offender. The court ordered a ten-year revocation of defendant's driving privileges; sentenced defendant to 180 days in jail, with thirty-eight days of jail credit; ordered the use of an ignition interlock for three years; and imposed appropriate fines and penalties. This appeal followed.

Defendant raises the following issues for our consideration:

I. Because Defendant Was "In Custody" When, Without Miranda Warnings, She Admitted Driving, This Court Should Exclude Those Admissions and Their Fruit and Acquit Her.

 

A. Removing Defendant from a Home and Placing Her in a Police Dominated Environment Put Her "In Custody" When She Admitted Driving.

 

B. Defendant's Later Admission Concerning an Impact with the Bridge Was Fruit of the Poisonous Tree.

 

II. Without a Warrant, [The] Police Had No Authority to Arrest Defendant.

 

III. If Defendant is Not Acquitted, This Court Should Vacate Her Conviction and Remand Her Case for a Jury Trial Because She Faced Serious Quasi-Criminal and Civil Consequences as a Direct Result of the Municipal Court Proceedings.

 

IV. If Defendant Is Not Acquitted, This Court Should Read the DWI Statute in the Light Most Favorable to the Defendant and Treat Her as a Second Offender for Sentencing Purposes.

 

II.

 

We turn first to defendant's argument that the trial court should have suppressed the statements that she made to the police. Defendant contends that she was in custody when Goessel questioned her and Goessel should have informed of her rights under Miranda. Defendant therefore argues that her statements to Goessel should have been suppressed. She additionally contends that her statements to Mechler should have been suppressed because those statements were the "fruit" of the statements she made before the Miranda warnings were provided. We find no merit in these arguments.

Miranda warnings are required "'when an individual is taken into custody or otherwise deprived of his [or her] freedom by the authorities in any significant way and is subject to questioning[.]'" State v. Scott, 171 N.J. 343, 364 (2002) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726). "'[T]he critical determination of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, and the status of the suspect[.]'" Id. at 365 (quoting State v. P.Z., 152 N.J. 86, 103 (1997)).

Here, the trial court found that defendant was not in custody when she and Goessel went to the parking lot to retrieve her credentials. The court stated that Goessel did not speak to defendant in a threatening manner, and they were in a public location. The court also stated that Goessel's questioning of defendant was "routine and proper." The court concluded that, under the circumstances, Miranda warnings were not required before defendant's arrest, and the statements that defendant made to Goessel and Mechler need not be suppressed. We agree.

Defendant next argues that her arrest was invalid because she was arrested without a warrant. We disagree.

A law enforcement officer is not required to obtain a warrant before arresting a defendant in a public place. State v. Nikola, 359 N.J. Super. 573, 582 (App. Div.), certif. denied, 178 N.J. 30 (2003). All that an officer requires for such an arrest is probable cause, that is, "'a "well grounded" suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)).

In this case, the trial court found that defendant was arrested in a public place. The court additionally found that, based on his observations and defendant's statements, Patrolman Mechler had probable cause to believe that defendant had been driving under the influence of alcohol. We are satisfied that there is sufficient credible evidence in the record to support the trial court's findings. We therefore conclude that defendant's arrest was lawful.

Defendant additionally argues that she was entitled to a jury trial on the DWI charge. Our Supreme Court has, however, held that defendants in DWI matters are not entitled to a jury trial on the charges. See State v. Hamm, 121 N.J. 109, 112-30 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991); see also 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) (noting that there is no right to a jury trial on DWI or other charges under Title 39).

III.

We turn to defendant's contention that she should have been sentenced as a second DWI offender. It is undisputed that defendant had been previously convicted of DWI in 1989 and 2003. After her second DWI conviction, defendant was sentenced as a first-time DWI offender pursuant to N.J.S.A. 39:4-50(a)(3), which provides in pertinent part that any individual

who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him in order to render him liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

 

Defendant argues that, because her second DWI conviction was treated as a first DWI offense for sentencing purposes under N.J.S.A. 39:4-50(a)(3), her third DWI conviction should have been considered a second offense.

Defendant recognizes, however, that this contention was rejected in State v. Burroughs, 349 N.J. Super. 225, 227 (App. Div.), certif. denied, 174 N.J. 43 (2002). There, the court held that if a defendant is granted leniency under N.J.S.A. 39:4-50(a)(3), "the defendant has no vested right to continued 'step-down' status where he [or she] commits a subsequent drunk driving offense." Ibid. Defendant contends that Burroughs was incorrectly decided and asks that we revisit the issue. We decline to do so.

It is undisputed that the instant conviction was defendant's third DWI conviction. The third DWI offense was not committed more than ten years after the second DWI offense, and the prior application of the "step-down" sentencing provision in N.J.S.A. 39:4-50(a)(3) does not mean that the second offense is "forgiven." Burroughs, supra, 349 N.J. Super. at 227. We are therefore satisfied that the trial court properly sentenced defendant as a third-time DWI offender.

Affirmed.

 

 

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