STATE OF NEW JERSEY v. GARY GAITHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4141-10T3

STATE OF NEW JERSEY

Plaintiff-Respondent,

v.

GARY GAITHER,

Defendant-Appellant.

____________________________

March 23, 2012

Submitted March 13, 2012 - Decided

Before Judges Reisner and Simonelli.

On appeal from the Superior Court of New Jersey,Law Division,Union County, Municipal Appeal No. 59-54.

Blume Goldfaden Berkowitz Donnelly Fried & Forte, attorneys for appellant (Sharon B. Kessel, on the brief).

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gary Gaither appeals from a March 11, 2011 order of the Law Division denying his petition for post-conviction relief (PCR) on an appeal from the municipal court. We affirm.

On January 19, 1998, Plainfield police officer Kevin Gimmer stopped defendant's vehicle and charged him with making an illegal u-turn, N.J.S.A. 39:4-125, and driving with a suspended license, N.J.S.A. 39:3-40. For reasons not documented on this record, the trial was not held until June 6, 2000. During that trial, in which defendant was represented by counsel, Officer Gimmer identified defendant, who was seated in court, as the person whose car he stopped on January 19, 1998. Municipal Judge Joan Robinson Gross acquitted defendant of the illegal u-turn charge and convicted him of driving with a suspended license. Defendant did not file a direct appeal from that conviction.

However, in 2007, defendant filed a PCR petition seeking to overturn the 2000 conviction.1 The PCR petition raised one claim: defendant contended that he was not the person who appeared for the trial of that case and therefore his conviction was invalid. The PCR petition was heard before Judge Gross, who issued a written opinion dated February 18, 2010. In her opinion, she indicated that she listened to the audiotape of the June 6, 2000 trial, recognized defendant's voice, and determined that defendant was in fact the person who appeared at the 2000 trial. In her opinion, she found:

Mr. Gaither's testimony during the June 6th trial was not limited to one word responses. One could clearly hear and understand his full voice and intonations as many of his responses ran in several sentences. There is no doubt that the Gary Gaither who has sought the post conviction relief and the Gary Gaither who stood trial in this court on June 6, 2000 are one and the same and the court so finds.

Defendant appealed to the Law Division. On that appeal, defendant once again contended that he was not the person who appeared at the 2000 municipal trial. In an oral opinion placed on the record on March 11, 2011, Judge Robert Mega considered the record de novo, giving due deference to the municipal judge's credibility findings. See State v. Johnson, 42 N.J. 146 (1964). After listening to the tape recording of the 2000 trial, Judge Mega found that he could not independently determine whether defendant was the person speaking on the tape. He noted that defendant had presented no expert voice analysis or other evidence, beyond his "bald accusation" that he was not present at that trial.

Judge Mega further noted that the defendant's 2000 trial testimony was "incredibly detailed and personal" such that it "only could be given by someone familiar with those alleged violations in the case itself." He considered that Officer Gimmer identified defendant in court as the person to whom he issued the summonses. Judge Mega also gave appropriate deference to Judge Gross's credibility findings on the issue. He determined, de novo, that defendant was present at the 2000 trial and he denied the PCR petition on the merits. He further determined that, since defendant was present in court on June 6, 2000 and was aware of his conviction on that date, the PCR petition was untimely. See R. 7:10-2(b)(2)(setting a five-year time limit for filing a municipal PCR petition).

On this appeal, defendant raises two issues:

I. DEFENDANT WAS NOT PRESENT AT THE JUNE 6, 2000 TRIAL.

II. DEFENDANT WAS PREJUDICED BY THE LENGTHY AMOUNT OF TIME BETWEEN THE ARREST AND THE TRIAL.

Our review of Judge Mega's decision is limited. We must defer to his factual findings so long as they are supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 474 (1999). Having reviewed the record presented to us on this appeal, we find no basis to disturb Judge Mega's decision, and we affirm for the reasons stated in his opinion.

We decline to consider defendant's speedy-trial argument. Defendant did not present that argument to the municipal court, either in connection with the 2000 prosecution or on his PCR petition, and he did not raise it in the Law Division. He therefore cannot raise the issue for the first time on this appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

1 Defendant's pro se appellate brief, which was appended to his attorney's brief, indicates that he was charged in 2006 for failing to pay the fines from the 2000 conviction. Apparently, he filed the PCR petition to avoid further prosecution in connection with the 2006 matter.