STATE OF NEW JERSEY v. ROBERT V. LUEBECK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3023-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT V. LUEBECK,

Defendant-Appellant.

__________________________________

February 27, 2013

Argued November 16, 2011 - Decided

Before Judges Fuentes, Harris, and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Municipal Appeal

No. 004-21-10.

James B. Seplowitz argued the cause for

appellant (Rem Zeller Law Group, attorneys;

Mr. Seplowitz, of counsel and on the brief).

William P. Miller, Assistant Prosecutor, argued

the cause for respondent (John L. Molinelli,

Bergen County Prosecutor, attorney; David A.

Malfitano, Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant Robert V. Leubeck appeals from the judgment of the Law Division that found him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and of failing to stop at a stop sign, N.J.S.A. 39:4-144(c). The Law Division's judgment was based on a de novo review of the record developed before the Municipal Court of the Borough of Franklin Lakes. The Law Division ordered defendant to pay the applicable fines and penalties, required him to attend twelve hours of instruction at the Intoxicated Driver Resource Center, and suspended his driving privileges for a period of three months.

Defendant now appeals arguing, inter alia, that he was denied his constitutional right to a speedy trial. We affirm.

On September 13, 2009, Franklin Lakes Police Sergeant Carmine Pezzuti was on patrol, driving northbound on Route 208, when he noticed defendant driving a light-colored Cadillac at an excessive speed. Sergeant Pezzuti saw defendant turn right onto Summit Avenue and observed his vehicle drift outside of the demarcated lane of traffic. When defendant reached a stop sign on Summit Avenue, he turned right without first stopping to determine whether it was clear to go, traveling, at that point, at approximately fifteen miles per hour.

From this point on, Sergeant Pezzuti continued to follow defendant and determined he was driving at forty-seven miles per hour in a forty mile-per-hour zone. Sergeant Pezzuti activated his overhead lights and signaled defendant to pull over and stop his car. Defendant responded by abruptly stopping his vehicle. When Sergeant Pezzuti approached defendant's driver-side window he immediately detected a strong odor of alcohol from defendant's breath. Defendant was unable to produce his driving credentials without stumbling and dropping them on his lap. His eyes were red and watery, and his speech was slurred.

Defendant told Sergeant Pezzuti that he was not physically ill or injured. Based on his initial observations, Sergeant Pezzuti concluded he had cause to question defendant's sobriety. In order to determine whether he had probable cause to arrest defendant for DWI, Sergeant Pezzuti asked him to perform certain physical dexterity tests, commonly referred to as field sobriety tests. Before directing defendant to perform these physical tests, Sergeant Pezzuti performed on defendant the Horizontal Gaze Nystagmus Test (HGN).1 Sergeant Pezzuti testified that he found six indicators of intoxication using this test.

Thereafter, at Sergeant Pezzuti's request, defendant attempted to perform certain physical tasks, which Sergeant Pezzuti described to him verbally. The area where defendant performed these tasks was well lit and level.2 According to Sergeant Pezzuti, defendant,

was unable to place his right foot in front of his left foot into the proper start position and had to be reset twice. The third time I put him into the start position he actually had his right foot to the side of his left foot approximately two to three inches in front of his left foot which is not the proper start position, but that was apparently the best he was going to do.

Defendant was also unable to walk "nine steps forward in a heel-to-toe fashion" while keeping his arms down by his sides and counting his steps aloud. Finally, defendant was unable to stand with his feet together, while keeping his arms to his side, lifting one foot (whichever leg he preferred) approximately six inches off the ground, and counting to thirty using the phrase "one one thousand, two one thousand, three one thousand."

Defendant was arrested at the scene and brought to the Franklin Lakes Police Station. The results of the Alcotest administered to defendant at the station were suppressed by the municipal court as a sanction for the State's failure to honor defendant's discovery requests. Thus, the municipal court grounded its finding that defendant was guilty of DWI, beyond a reasonable doubt, on the testimony of the arresting officer.

On de novo appeal to the Law Division, the judge considered anew the record developed before the municipal court, as well as the arguments of counsel. On January 28, 2011, the Law Division issued a memorandum of opinion finding defendant guilty of DWI. The court imposed the same sentence as the one imposed by the municipal court. In so doing, the Law Division rejected defendant's argument that his right to a speedy trial was violated because he was arrested on September 13, 2009, and was not tried before the municipal court until September 29, 2010, 382 days later.

One of the principal reasons for the delay appears to have been the Borough's failure to appoint a municipal judge to preside over its court for a period of four months, from January 2010 to April 2010. Another factor contributing to the delay involved the State's failure to respond to defendant's discovery requests. There were a total of three court appearances between October 8, 2009, and February 3, 2010, which were adjourned due to outstanding discovery demands. The municipal court finally suppressed defendant's Alcotest reading on February 3, 2010, as a discovery sanction against the State.

Defendant thereafter filed a motion to dismiss on the ground that he was denied his right to a speedy trial. The motion was returnable on September 29, 2010. On that date, the municipal court denied the motion. However, the matter proceeded to trial and judgment that same day.

Applying the relevant four-factor test established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972), and adopted by our Supreme Court in State v. Szima, 70 N.J. 196, 201 (1976), the Law Division found that defendant's right to a speedy trial had not been violated. This test required the court to consider: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) the prejudice resulting from the delay.

Thereafter, the court found, based on the record developed before the municipal court, that there was sufficient evidence to convict defendant of DWI. From this judgment, defendant now appeals raising the following arguments:

POINT I

THE MOTOR VEHICLE SUMMONSES AGAINST ROBERT LUEBECK SHOULD HAVE BEEN DISMISSED BECAUSE HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL WAS VIOLATED.

POINT II

ROBERT LUEBECK SHOULD HAVE BEEN FOUND NOT GUILTY OF DRIVING WHILE INTOXICATED AS THE TOTALITY OF THE STATE'S EVIDENCE FAILS TO PROVE INTOXICATION BEYOND A REASONABLE DOUBT.

We affirm substantially for the reasons expressed by the Law Division in its memorandum of opinion. As the Law Division noted, defendant was not prejudiced by the delay. Defendant continued to exercise his driving privileges while the case was pending. In fact, due at least in part to the delay, the court suppressed defendant's Alcotest readings, a clear advantage to the defense. Equally noteworthy, the State was not responsible for the four-month delay caused by the vacancy in the municipal court. Finally, the municipal court responded immediately when defendant moved to enforce his right to a speedy trial by holding the trial on the return date of the motion.

The speedy-trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial. As a practical measure, the protection benefits both defendants and society. As the Court noted in Barker:

In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes.

[Barker, supra, 407 U.S. at 519, 92 S. Ct. at 2186, 33 L. Ed. 2d at 110-11 (footnotes omitted).]

We are satisfied that the defendant's Sixth Amendment right to a speedy trial was not violated here. We are nevertheless concerned that the municipal court was left vacant for an unreasonably extended period of time3 and that the State failed to respond, in a timely manner, to a key discovery request, which could have needlessly jeopardized the prosecution of this extremely important case. See State v. Holup, 253 N.J. Super. 320, 325 (1992). All cases should be decided on the merits based on the evidence presented by the parties. Procedural irregularities, although important to preserve a fair, uniform, and predictable system of justice, should not, under most circumstances, become outcome determinative. Here, we are satisfied that the evidence supports defendant's conviction. State v. Locurto, 157 N.J. 463, 471 (1999).

1 Defense counsel initially objected to the municipal court's reliance on the results of the HGN test to determine defendant's guilt beyond a reasonable doubt at trial. See State v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000) (explaining that the scientific community does not generally accept the results of HGN tests). Counsel stipulated, however, that Pezzuti had probable cause to arrest defendant for DWI, independent of the results of the test.

2 Sergeant Pezzuti testified that the stop occurred on Franklin Avenue, a two-lane roadway that travels east and west. The road was "well maintained" and free of debris. Overhead street lamps and the patrol car, which was parked approximately thirty feet behind defendant's car, illuminated the area.

3 Although we have previously found a two and one-half year delay did not violate a defendant's right to a speedy trial, State v. May, 362 N.J. Super. 572, 595-600 (App. Div. 2003), we emphasize that under Barker the analysis is always fact-sensitive. Szima, supra, 70 N.J. at 201-02.