STATE OF NEW JERSEY v. JOHN H. DICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1006-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN H. DICK,

Defendant-Appellant.

_________________________

November 12, 2014

Argued October 28, 2014 - Decided

Before Judges Reisner and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 13-010.

John Menzel argued the cause for appellant.

Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief).

PER CURIAM

Defendant John Dick appeals from his October 4, 2013 conviction by the Law Division (trial court) for breath test refusal, N.J.S.A. 39:4-50.4a. He also appeals from the sentence. He presents the following points of argument for our consideration

I. BECAUSE THE STANDARD STATEMENT USED HERE FAILED TO ADEQUATELY INFORM DEFENDANT OF THE CONSEQUENCES OF REFUSAL, THIS COURT SHOULD ACQUIT HIM OF BREATH TEST REFUSAL.

II. BOTH THE STATE AND MUNICIPAL COURT DENIED DEFENDANT A SPEEDY TRIAL, CAUSING DELAY SO EXCESSIVE AS TO WARRANT DISMISSAL OF THE COMPLAINTS.

III. IF THIS COURT NEITHER DISMISSES THIS CASE NOR FINDS DEFENDANT NOT GUILTY, IT SHOULD SENTENCE HIM AS A FIRST OFFENDER UNDER THE REFUSAL STATUTE AND DISREGARD PRIOR DWI OFFENSES FOR PURPOSES OF SENTENCE ENHANCEMENT BECAUSE THE SUPREME COURT HELD BREATH TEST REFUSAL AND DWI TO BE INDEPENDENT OFFENSES.

Having reviewed the record, we conclude that these arguments are without merit, and we affirm substantially for the reasons stated by Judge Ronald Lee Reisner in his comprehensive written opinion dated October 4, 2013.

The facts and procedural history of this case are set forth at length in the trial court s opinion and need not be repeated here in the same level of detail. On July 15, 2011, defendant was arrested on suspicion of driving while intoxicated. At the police station he was read the standard statement seeking his consent to a breath test. There is no dispute that the standard statement was correct in all respects except that it failed to advise defendant that the penalties for refusal would include installation of an ignition interlock device on his car.1 Defendant twice failed to unambiguously consent, instead asserting that he wanted to speak to his attorney.

As detailed in the trial court s opinion, the municipal court trial was delayed for a variety of reasons including defendant s decision to change attorneys, and defendant s request that the trial be adjourned because he was attempting to resolve the matter with the State. Defendant was not prepared for a trial of the case until August 27, 2012. On that date, the State requested an adjournment because the arresting officer was unavailable. On that date, for the first time, defendant asserted his speedy trial right. On the next scheduled date, December 14, 2012, the matter was again adjourned because, solely due to error by the court s staff, the officer had not been notified of the rescheduled trial date.

On the next scheduled date, March 11, 2013, defendant agreed to proceed without raising a speedy trial objection, and the matter was tried on stipulated facts without the officer s testimony. The municipal judge convicted defendant of refusal and sentenced him as a third offender. On appeal to the Law Division, Judge Reisner also convicted defendant but held that, due to the age of his first prior conviction, defendant should be sentenced as a second offender. The State has not cross-appealed from that determination.

On this appeal, our review of the conviction is de novo, because the facts are undisputed and Judge Reisner s challenged decisions turn exclusively on issues of law. State v. Stas, 212 N.J.37, 49 (2012). However, we will reverse the denial of a speedy trial motion only where it is "clearly erroneous." State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009). On this record, Judge Reisner s written opinion thoroughly and correctly addressed all of the issues, and it is not necessary for us to repeat his legal analysis. Defendant s appellate arguments essentially restate his trial court contentions, which Judge Reisner properly rejected. We add only the following comments.

We agree with Judge Reisner that defendant s argument concerning the standard statement fails in light of the Supreme Court s recent decision in State v. O Driscoll, 215 N.J.461 (2013). The statement advised defendant that, among other penalties, refusal could result in a twenty-year suspension of his driving privileges and a $2000 fine. We agree that, in light of those potential penalties, having to install an ignition interlock device on his car would not have been material to defendant s decision whether to consent to the breath test. Id. at 466.

After Judge Reisner issued his decision, the Supreme Court decided State v. Frye, 217 N.J.566, 568-69 (2014). The Court there held that a prior conviction for driving while intoxicated, N.J.S.A.39:4-50, is to be treated as a statutory enhancing factor in sentencing a defendant for a later refusal conviction. Ibid. Fryeis directly on point here. Defendant was properly sentenced as a second offender.

Defendant s speedy trial arguments were thoroughly and correctly addressed in the trial court s opinion, applying the standards set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 110, 117 (1972). SeeState v. Cahill, 213 N.J.253, 263-64 (2013). Defendant's appellate arguments on this point do not warrant further discussion here. R.2:11-3(e)(2).

Affirmed.

1 We decline to address defendant s argument concerning the possible effect of a refusal conviction on his right to visit Canada. That argument was not raised before the trial court. See State v. Robinson, 200 N.J. 1, 20-22 (2009).