STATE OF NEW JERSEY v. JEFFREY RIEBE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY RIEBE,

Defendant-Appellant.

________________________________________________________

November 15, 2013

Submitted August 20, 2013 Decided

Before Judges Graves and Simonelli.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Municipal

Appeal No. 6-2012.

Levow & Associates, P.A., attorneys for

appellant (Evan M. Levow, of counsel and

on the brief; Kimberly A. Schultz, on the

brief).

Andrew C. Carey, Acting Middlesex County

Prosecutor, attorney for respondent (Brian

D. Gillet, Special Deputy Attorney General/

Acting Assistant Prosecutor, of counsel and

on the brief; Matthew P. Tallia, on the

brief).

PER CURIAM

On January 13, 2006, defendant Jeffrey Riebe was charged with six motor vehicle offenses: driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to an Alcotest, N.J.S.A. 39:4-50.2; driving with a suspended license, N.J.S.A. 39:3-40; failure to produce vehicle registration, N.J.S.A. 39:3-29; driving an uninsured vehicle, N.J.S.A. 39:6B-2; and reckless driving, N.J.S.A. 39:4-96. Defendant also received a complaint summons for hindering his own apprehension by providing false information to a law enforcement officer, in violation of N.J.S.A. 2C:29-3(b)(4). On January 30, 2012, the municipal court found defendant guilty of all of the charges except for driving with a suspended license. Following a de novo review by a Law Division judge, defendant was again found guilty of the charges. For the reasons that follow, we affirm.

At the outset of the municipal court trial, the judge denied defendant's request to recuse himself because he was aware that defendant could be exposed to enhanced penalties. In denying the request, the judge noted that defendant's counsel "wanted more time to file briefs because they said there was an enhanced penalty." The judge also stated, "I haven't reviewed this case, I don't know the facts of the case frankly, except that the request for adjournments have been numerous by defense counsel because of some enhanced penalty."

During the municipal court proceedings, Detective Garrett Cassio of the South Plainfield Police Department was the State's primary witness. Cassio testified that on January 13, 2006, at approximately 12:45 a.m., he was on routine patrol in the area of Hamilton Boulevard and New Market Avenue in South Plainfield, when he observed a black Nissan Pathfinder make a "dangerous" left turn into the area of the Liquid Assets Gentlemen's Club. A computer check of the license plate revealed the vehicle was registered to defendant, whose driver's license was suspended, and there was an outstanding warrant for defendant's arrest. Cassio observed the parked vehicle and "a large white male," later identified as defendant, walking towards the entrance of the bar. Cassio continued on patrol, but returned to the area approximately one-half hour later.

At that time, Cassio observed defendant enter his vehicle and exit the parking lot. Defendant made a right-hand turn onto New Market Street and accelerated to approximately forty-to-forty-five miles per hour in a twenty-five mile per hour zone. Cassio activated his overhead lights and observed defendant make a sharp left-hand turn onto Rio Street and turn into the only driveway on the street. Defendant then exited his vehicle and began walking while Cassio pulled in behind him. Cassio observed defendant was "a little off balance" and directed defendant back into his vehicle. Cassio approached defendant and asked if it was his house. Defendant responded it was not. When asked to produce his driving credentials, defendant said he did not have the documents and that "his wife had all the information." Defendant said his name was James Riebe,1 his twin brother, and provided James's information, including his address.

Defendant was ordered out of the vehicle and Officer Antonio Grasso arrived on the scene to provide backup. While searching the interior of the vehicle for registration information, Cassio "smelled a strong odor of an alcoholic beverage." Cassio also stated that while he was speaking to defendant outside of the vehicle, he "smelled the strong odor of an alcoholic beverage coming off [defendant]." Cassio asked defendant if he had been drinking, and defendant responded "he had a couple beers."

Cassio conducted a computer check of motor vehicle records, which indicated that James was five feet ten inches tall, approximately four inches shorter than defendant. Cassio stated defendant's speech was "slurred" and "slow" and further testified:

[Defendant's] voice was hoarse. He was standing, first he was standing rigid. Then, when he was leaning on the car, he was sagging his knees, his eyes were very watery and bloodshot. Based on his driving, him being very deceitful, the observation of his watery eyes, his hoarse voice, I looked for a flat, dry surface to perform field sobriety tests.

I asked [defendant] to step over to that area. Asked him to perform some tests. He refused. I asked him again. He refused. And he said just take me in. At this point, [defendant] was placed under arrest for hindering, a DWI, and the warrant.

While being processed at police headquarters, defendant admitted he was Jeffrey, not James, Riebe.

Defendant neither took the stand nor called any witnesses. Based on the testimony of Cassio, which the municipal court found to be credible, defendant was found guilty of all charges except for driving while suspended.

Defendant was sentenced as a third-time DWI offender to serve a 180-day jail term,2 to forfeit his New Jersey driving privileges for ten years, and to complete 48 hours in the Intoxicated Driver Resource Program. Other appropriate fees, assessments, and penalties were also imposed. The municipal court further noted the case had been adjourned several times "because of either the defendant's absence by bench warrant or for his request for matters to be adjourned," whereas the State was "ready to proceed."

Following a hearing on June 15, 2012, the Law Division judge concluded there was no evidence to support defendant's claim that the municipal court judge should have recused himself. The Law Division judge also found that Cassio was justified in stopping defendant's vehicle because he had a reasonable and articulable suspicion that defendant had committed a motor vehicle violation. The judge's findings and conclusions included the following:

[W]ith all due respect to the position taken by the defense, I do not find that there is such a disparity between the testimony of the detective and the observations that I made of the scene through the videotape[3] that would shake my confidence in the credibility of the police officer to the point where I would say that he did not have probable cause to make this arrest.

The reason for that is, as I indicated before, the officer is an experienced officer. He . . . has 15 years of experience, having made . . . 80 to 100 arrests for DWI. . . .

The watery eyes, the slurred speech, the leaning, the sagging of his knees. I mean there are many, many manifestations
. . . that led him to this reasonable and articulable suspicion and even more so the probable cause to believe that . . . [defendant] should be arrested for DWI.

. . . .

Any person who operates a motor vehicle on a public or quasi-public road in New Jersey shall be deemed to have given his consent to taking samples of his breath for the purpose of making chemical tests to determine the content of the alcohol in his blood.

And the State has to prove three elements. The State has to prove there's probable cause to believe the defendant was under the influence of alcohol while operating a vehicle, which I've already found to have been the case with respect to Mr. Riebe.

Secondly, defendant was arrested for driving while intoxicated, which he was in this case. And [third,] the defendant knowingly and voluntarily refused to submit to the test.

. . . .

[Cassio] ran the defendant's plates, there was a warrant out for his arrest.
. . . He was driving recklessly. He admitted to consuming alcohol that night. The observations that were made of him are on the record already.

[Defendant's] refusal to take the physical tests, the fact that he gave a fictitious name and attempted to pass himself off as his twin brother, and his failure to take the Alcotest, where there is the implied consent law[,] [a]ll of those indicia lead this court to conclude the defendant is guilty as charged and he is so found guilty.

The Law Division rejected defendant's claim he was deprived of his constitutional right to a speedy trial, reasoning as follows:

[D]efendant was arrested in January of 2006. The trial occurs January 30, 2012. Six years pass. What caused the delay? Could it have been the changing of the representation four times, the attorney calling for adjournments, defendant being unable to be found causing the court to issue numerous bench warrants? Those are [the facts].

The State has indicated on various occasions it was ready to proceed. Any of those instances would not constitute a denial of [defendant's] right [to a] speedy trial[.]

The Law Division found defendant guilty of DWI, failing to submit to an Alcotest, reckless driving, failing to produce vehicle registration and insurance, and hindering. The Law Division judge imposed the same fines, assessments, and penalties as the municipal court. Defendant's custodial sentence was stayed pending appeal. The court memorialized its decision in an order dated June 21, 2012.

On appeal to this court, defendant presents the following arguments:

POINT I

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT RIEBE OPERATED A MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL.

POINT II

NO REASONABLE AND ARTICULABLE SUSPICION OF INTOXICATION EXISTED TO HAVE RIEBE SUBJECTED TO FIELD SOBRIETY TESTING, AND NO PROBABLE CAUSE EXISTED TO REQUIRE A BREATH TEST.

POINT III

THE MUNICIPAL COURT JUDGE FAILED TO RECUSE HIMSELF.

POINT IV

THE MUNICIPAL COURT JUDGE DENIED RIEBE'S RIGHT TO A SPEEDY TRIAL IN VIOLATION OF DUE PROCESS.

Based on our review of the record and the applicable law, we conclude these arguments are clearly without merit. R. 2:11-3(e)(2). We add the following comments.

Our scope of review is limited. We "consider only the action of the Law Division, and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Review in the Law Division is de novo on the record. R. 3:23-8(a)(2). The Law Division must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). Likewise, we defer to findings by a municipal court that are substantially influenced by its "opportunity to hear and see the witnesses." Id. at 161. Our function is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, we "should not disturb the result" even though we "might have reached a different conclusion" or the case was "a close one." Ibid.

"'A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed.'" State v. Amelio, 197 N.J. 207, 211 (2008) (quoting State v. Carty, 170 N.J. 632, 639-40, modified, 174 N.J. 351 (2002)), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). "The burden is on the State to demonstrate by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion." Ibid. "Because the 'determination of reasonable [and articulable] suspicion is fact-sensitive,' a careful review of the totality of the circumstances surrounding each case is required." State v. Mann, 203 N.J. 328, 338 (2010) (alteration in original) (quoting State v. Pineiro, 181 N.J. 13, 22 (2004)). "'When determining if the [police] officer's actions were reasonable,' the court must consider the reasonable inferences that the police officer is entitled to draw 'in light of his experience.'" Amelio, supra, 197 N.J. at 212 (alteration in original) (quoting State v. Arthur, 149 N.J. 1, 8 (1997)).

N.J.S.A. 39:4-50(a) prohibits the operation of a motor vehicle "while under the influence of intoxicating liquor." "The language 'under the influence' . . . means a substantial deterioration or diminution of the mental faculties or physical capabilities of a person." State v. Tamburro, 68 N.J. 414, 420-21 (1975). The statute does not require the State to prove that defendant was "absolutely 'drunk' in the sense of being sodden with alcohol. It is sufficient if [he] has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Emery, 27 N.J. 348, 355 (1958).

Additionally, the "balancing analysis of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), remains the governing standard to evaluate claims of a denial of the federal and state constitutional right to a speedy trial in all criminal and quasi-criminal matters." State v. Cahill, 213 N.J. 253, 258 (2013). Barker "identified four non-exclusive factors that a court should assess when a defendant asserts that the government denied his right to a speedy trial: length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant." Id. at 264. However, "any delay that defendant caused or requested would not weigh in favor of finding a speedy trial violation," such as delays "attributable to defendant's motions and adjournments" and any delay caused by "the substitution of defense counsel." State v. Long, 119 N.J. 439, 470-71 (1990) (internal citations and quotation marks omitted).

As both the municipal court and Law Division judges recognized, Cassio was justified in stopping defendant's vehicle, probable cause existed for requesting an Alcotest, and Cassio's observations and testimony provided ample evidence of defendant's guilt. SeeState v. Bealor, 187 N.J. 574, 585 (2006) ("Since 1924, because sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication."); see also State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993) (finding defendant guilty of DWI based on the strong odor of alcohol on his breath, his agitated behavior, the fact that he was "very wobbly," his slurred speech, and his bloodshot eyes). Additionally, there is no support in the record for defendant's claims that he was deprived of his constitutional right to a speedy trial or that the municipal court judge was biased.

Affirmed.

1 Because defendant and James share the same surname, we refer to defendant's brother as James.

2 Defendant's custodial sentence was stayed pending appeal to the Law Division.

3 The court's mention of "the videotape" refers to the mobile video recorder in Cassio's patrol vehicle. We have not been provided with a copy of the videotape.