STATE OF NEW JERSEY v. RENZO RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1270-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENZO RODRIGUEZ,

Defendant-Appellant.

__________________________________________

March 7, 2014

Argued October 29, 2013 Decided

Before Judges Sabatino and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 1-2009.

Marc J. Rogoff argued the cause for appellant.

Joie D. Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Renzo Rodriguez entered a conditional guilty plea to driving while intoxicated (DWI), N.J.S.A.39:4-50, after a municipal court denied his motion to suppress evidence for a second time. Defendant argued then, and still maintains, that the court should have suppressed all evidence obtained during the moments leading to his arrest because the troopers did not Mirandize1 him before questioning him and administering the sobriety tests. Also, according to defendant, the troopers did not have probable cause to arrest him.2

Initially, the municipal court denied defendant's motion. The Law Division vacated that denial on March 10, 2010 and remanded for a continued hearing at which "additional witnesses" could be called to testify. A different municipal court judge presided over the remand hearing, declared a mistrial and started over, allowing not only additional witnesses to be called but also admitting into evidence a video that was not considered at the original suppression hearing. After considering all of the evidence, the municipal court denied defendant's motion. Defendant then entered his conditional guilty plea, appealed to the Law Division and also sought reconsideration of the March 10, 2010 remand order. On September 27, 2011, the Law Division affirmed the denial of defendant's suppression motion and denied reconsideration of its March 10, 2010 order. Defendant then filed this appeal.

Defendant raises the following issues in his appeal from the Law Division's March 10, 2010 and September 27, 2011 orders:

POINT I

THE LAW DIVISION ERRED BY REMANDING THE MATTER BACK TO THE WOODBRIDGE MUNICIPAL COURT ON MARCH 10, 2010 AND GRANT[ING] THE STATE A CONTINUANCE IN THE SUPPRESSION HEARING TO ALLOW THE STATE TO PRODUCE ADDITIONAL WITNESSES.

POINT II

THE MUNICIPAL COURT ERRED BY DECLARING A MISTRIAL OF THE SUPPRESSION HEARING CONDUCTED ON MAY 9, 2008 AND CONDUCTING AN ENTIRELY NEW SUPPRESSION HEARING AND FAILED TO FOLLOW THE LAW DIVISION ORDER ENTERED BY JUDGE BRADLEY FERENCZ DATED MARCH 20, 2010.

We now affirm because we are satisfied that, under the circumstances, (1) the Law Division judge properly remanded the suppression motion and (2) because there was substantial, credible evidence in the record to support the Law Division's ultimate denial of that motion.

I.

Around 4:00 a.m. on the morning of January 1, 2008, state troopers Pakorn Patimetha and Rodrigo Nivia were dispatched to the scene of a one-car accident on the ramp to Route 440 southbound in Woodbridge. Road conditions were slippery due to an earlier rainfall that had since iced over. Upon their arrival, they encountered defendant standing beside his disabled vehicle, which had front-end damage and was facing the guard rail in a near-perpendicular position to traffic. Defendant attributed the accident to "black ice," which had caused him to run off the road and into the guard rail. He said he was uninjured, and had no need for medical attention. When asked for his identification and driving credentials, defendant was unable to produce them because he did not have his wallet. During the exchange, Patimetha could smell alcohol on defendant's breath, and observed that his eyes were watery and bloodshot. When asked if he had been drinking, defendant confirmed that he had. Patimetha then told Nivia that he suspected defendant of DWI, and Nivia independently noted the smell of alcohol emanating from the car.

Patimetha then administered several field sobriety tests: the alphabet test, the numbers test, the one-leg stand, and the walk and turn test. Defendant failed all of the field sobriety tests. Defendant deviated in his recitations during both the alphabet test and the numbers test. Making three attempts, he failed to maintain his balance during the one-leg stand test. He also deviated from the line twice while taking the walk and turn test.

The troopers placed defendant under arrest, and took him to the Woodbridge police station where he was advised of his Miranda rights. He was then given a Breathalyzer test. Patimetha documented his specific observations about defendant's intoxication and performance on the tests in a report which he alone signed. The troopers charged defendant with DWI, N.J.S.A. 39:4-50; failure to possess a driver's license, N.J.S.A. 39:3-29(a); and careless driving in a manner likely to endanger person or property, N.J.S.A. 39:4-97.

On January 28, 2008, defendant filed his motion to suppress evidence. The Woodbridge Municipal Court conducted a hearing on May 9, 2008 in response to defendant's motion.3 Patimetha was unavailable to testify that day, so the State requested an adjournment during the hearing. The court denied the application, based on what it perceived to be double jeopardy concerns. Instead, the court heard Nivia's testimony and admitted Patimetha's report into evidence, over defendant's objection. Based primarily on the contents of that report, the court denied defendant's motion.

Pursuant to Rule 3:24, defendant successfully moved4 for interlocutory review by the Law Division of the municipal court's decision. On appeal to the Law Division, the Law Division judge found that "given the total context of what occurred below, . . . justice was not served. There [was] a need for competent testimony, upon which the Municipal Court may rely, for the purposes of a finding in this case. No such testimony was presented." Moreover, the judge noted that the municipal court should not have denied the State's adjournment request, as the request posed no genuine double jeopardy concerns. Thus, in its March 10 order, the Law Division vacated the municipal court's denial of the motion to suppress, and remanded the matter to allow the State to call "additional witnesses." The order further advised the municipal court to not rely on Patimetha's report as substantive evidence. Additionally, being sensitive to the issue of delay, the order required that the new hearing be held within ninety days of the remand order.

Unfortunately, the original municipal court judge died in the interim, so a different municipal judge presided over the remand on June 2, 2010. Realizing that he could not rely on his predecessor's credibility findings, which were largely based on the admitted report's contents, the judge declared a mistrial and started over. During the new hearing, he not only heard both troopers' testimony, but also viewed a video tape of defendant's sobriety test.5 After considering all of the evidence, he denied the motion. Defendant then entered a conditional guilty plea to DWI on December 22, 2010.6

Defendant appealed to the Law Division on January 11, 2010. As part of his appeal, defendant also sought reconsideration of the previous remand order. The Law Division judge reviewed the matter de novo, and affirmed. As to his earlier remand order, he found no reason to reconsider the need for the initial remand or its appropriateness under the circumstances. He also found that the new video evidence was allowed because his earlier order did not preclude the municipal court from considering such additional evidence This appeal followed.

II.

Our scope of review is limited; this court is bound to uphold the Law Division's findings if supported by sufficient, credible evidence in the record. State v. Johnson, 42 N.J.146, 162 (1964). Only if the Law Division's decision was so clearly mistaken or unwarranted "that the interests of justice demand intervention and correction," can this court review the record "as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. But like the Law Division, this court is in no position to "weigh the evidence, assess the credibility, or make conclusions about the evidence," and should therefore defer to the municipal court's credibility findings. State v. Barone, 147 N.J.599, 615 (1997); State v. Cerefice, 335 N.J. Super.374, 383 (App. Div. 2000); see also Trusky v. Ford Motor Co., Lincoln-Mercury Div., 19 N.J. Super.100, 104 (1952) ("[A]n appellate court . . . 'has to operate in the partial vacuum of the printed record[.]'"). However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J.328, 337 (2010).

Defendant argues that the remand order was improper, because the State waived its right to appeal the denial of its continuance; the Law Division should not have ordered the remand and continuance sua sponte; and the order was basically unfair and prejudicial to defendant. We disagree.

As to waiver, defendant's argument is without merit. Defendant argues that because the State did not appeal the denial of its adjournment request remand was not appropriate. In support, he cites to Rule3:24, which allows an aggrieved party to appeal the interlocutory order of a court of limited jurisdiction. But despite the denial of its continuance, the State was in no way "aggrieved" as the municipal court ultimately denied defendant's motion. The State had no reason to appeal a ruling in its favor.

Instead of allowing the municipal court's denial of defendant's motion to suppress to stand, the Law Division judge correctly ordered on March 10, 2010 that the suppression order be vacated and the hearing continued to allow Patimetha to appear. The continuance did not grant a second prosecution, as that would violate the protections against double jeopardy. United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971) (barring retrial on double jeopardy-grounds because trial judge failed to consider a continuance but sua sponte declared a mistrial after determining State's witnesses were not adequately informed of their constitutional rights before testifying), but instead served to merely correct the ruling that deprived the State of its chance to present its case in full, during its first opportunity within the same prosecution. State v. Porro, 175 N.J. Super. 49, 52 (App. Div. 1980). A remand is appropriate when it does not provide "the State with a second opportunity to plug holes in a case deficient of proof beyond a reasonable doubt." State v.Sparks, 261 N.J. Super. 458, 461-62 (App. Div. 1993). The remand here did not give the State a "second bite at the apple"; the erroneous adjournment denial essentially deprived the State of a complete "first bite." Rather, it was defendant that primarily benefited when the Law Division vacated the municipal court's denial of his suppression motion.

The court's only alternative would have been to grant the motion and, if left with insufficient evidence to convict, to ultimately dismiss the charges. Ibid. ("If the evidence excluded by the Law Division is necessary to sustain defendant's guilt, defendant must be acquitted."). However, dismissal is the ultimate sanction which should be avoided in the interest of justice if other alternatives exist. State v. Prickett, 240 N.J. Super.139, 147 (App. Div. 1990) ("[I]n the administration of justice[,] dismissal must be a recourse of last resort."). Moreover, "dismissing the indictment does not correct the error[, but] serves only to deprive the State of an opportunity to try the issues raised by the indictment[,]" and thereby "effectively grants [the defendant] immunity from prosecution." State v. Porro, 175 N.J. Super.49, 52 (App. Div. 1980). Under the circumstances presented in this case, that result would have been too severe and unjust. State v. Audette, 201 N.J. Super.410, 414-15 (App. Div. 1985).

In Audette, supra, the State appealed a Law Division order granting a defendant's motion to suppress as evidence one-half pound of cocaine that was seized from the defendant during a warrantless search. Id.at 411. The motion was adjourned once, for a month, due to the trial judge's own scheduling conflict. Id.at 412. On the day of the hearing, the State could not produce its key witness the arresting trooper. Ibid. The State had failed to notify the trooper of the adjourned date, by which time he had already gone on a scheduled vacation to a remote area where he could not be reached by telephone. Ibid. At the hearing, the State moved for the first time for an adjournment. Ibid.

The trial judge reasoned that he could either "grant [the] motion to suppress evidence because the State failed to establish their burden of proof simply because there was no witness here or [he could] continue the matter on terms and order [the State] to pay [the defendant] his expenses." Id.at 414. The trial judge then weighed the equities on both sides, denied the adjournment request and granted the motion to suppress, "in default of any available proofs from the State." Ibid.

On appeal, we found that "the State erred in not giving timely notice and a subpoena to the Trooper or in not arranging another date when he could be available to testify." Id.at 412. We also recognized that the defendant had been greatly inconvenienced, as he had travelled to the court all the way from Florida by way of Boston. Ibid. Nevertheless, we concluded that the better course of action would have been to grant the State its adjournment, and to sanction the State for the expenses that the defendant bore to appear for the adjourned hearing date, pursuant to Rule1:2-4(a). Id.at 414.

In reaching this decision, we noted that "[t]his was the State's first dereliction in the proceeding and there is no doubt that the defendant's inconvenience was caused by mere carelessness on the prosecutor's part, not by any malicious design." Ibid. We also remarked that a dismissal was an "extreme remedy," and was "too severe and disproportionate to the circumstance." Id.at 415. We therefore reversed the granting of the suppression motion and remanded for a suppression hearing for the presentation of proofs.

The instant matter has similar aspects7. It was therefore appropriate for the Law Division to fashion a similar remedy as we ordered in Audette. Patimetha was unavailable for the first suppression hearing, and defendant sought the dismissal of his charges on that basis. However, dismissal is an extreme remedy. It results in prejudice to the State that far exceeds any prejudice defendant may have suffered if the adjournment had been granted.

Finally, as to considerations of basic fairness, the Law Division was sensitive to defendant s concerns over delay of the trial: it required that the remand be scheduled within 90 days of the order. Moreover, the remand hearing ultimately became a new hearing at which defendant would not only have the opportunity to cross-examine Patimetha, but also the opportunity to impeach Nivia s testimony with the transcript8from the first suppression hearing.

For these many reasons, the remand order was proper.

III.

Defendant also argues that the municipal court acted beyond the scope of the remand order in conducting a new hearing and by admitting into evidence the video footage, citing the language of the remand order that referred only to "additional witnesses." He interprets the remand order as requiring that the hearing be continued and to only allow the presentation of Patimetha's testimony. However, because the original judge died and because that judge had relied primarily on the report which the Law Division judge ordered not be considered as substantive evidence, it was not feasible for the new judge to continue the original hearing. Instead, the successor municipal court judge sensibly declared a mistrial and started anew.

Where a substitute judge has been assigned to hear a matter,

[n]o substituted judge shall continue the trial in any matter . . . unless satisfied, under the circumstances, that the judicial duties can fairly be discharged. If not so satisfied, the substituted judge shall make such disposition as the circumstances warrant, as where trial has taken place, by ordering a new trial or, in a case tried without a jury, by directing the recall of any witness.

[R. 1:12-3(c).]

When a substitute judge declares a mistrial pursuant to this rule, the "propriety of the mistrial depends upon the sound exercise of the court's discretion, to be utilized 'only in those situations which would otherwise result in manifest injustice.'" State v. Rechtschaffer, 70 N.J.395, 406 (1976) (quoting State v. DiRienzo, 53 , 53 N.J.360, 383 (1969)).

Applying that standard, we agree with the Law Division that the municipal court did not err by conducting a new hearing and admitting the additional video footage as evidence. The Law Division s March 10, 2010 order did not explicitly preclude new evidence; and as a result of the mistrial, defendant was himself entitled to present new evidence at the new hearing. He also had equal opportunity to view the video and to challenge the witnesses' testimony based on that footage. In any event, the video did not provide any new information: the video footage may have bolstered the witnesses' credibility, but in substance, the information it provided was merely cumulative with respect to the troopers' testimony.

By affirming the municipal court's fair and pragmatic actions in his September 27, 2011 order, the Law Division judge did not abuse his discretion or otherwise violate defendant's rights.

IV.

Finally, defendant maintains that the troopers did not first Mirandize him before questioning or testing him; and that without the evidence illegally obtained through their questioning and tests, they could not have probable cause to arrest him. Pursuant to Miranda v. Arizona, supra, the prosecution may not use statements or information obtained during a "custodial interrogation of [a] defendant" unless certain procedural safeguards are employed "to secure the privilege against self-incrimination." 384 U.S.at 444, 86 S. Ct.at 1612, 16 L. Ed. 2d at 06 (1966). Such safeguards are employed where, "[p]rior to any questioning, the [defendant is] warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id.at 444, 86 S. Ct.at 1612, 16 L. Ed. 2d at 706-07. A "custodial interrogation" arises where "questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id.at 444, 86 S. Ct.at 1612, 16 L. Ed. 2d at 706.

Generally, on-the-scene questioning of citizens as part of the fact-finding process is not subject to Mirandasafeguards. Id.at 477, 86 S. Ct.at 1629, 16 L. Ed. 2d at 725; seeState v. Ebert, 377 N.J. Super.1, 9 (App. Div. 2005). For this reason, we have previously held that a DWI suspect is not entitled to Mirandawarnings before the administration of field sobriety tests. Id.at 8-10 (Mirandadid not apply where police responded to a stolen vehicle report by the defendant; the defendant admitted that she had been drinking; the defendant had slurred speech, difficulty walking, and her breath smelled like alcohol; the defendant had taken and failed the field sobriety tests; and the defendant had car keys in hand when the police first encountered her.); State v. Green, 209 N.J. Super. 347, 350 (App. Div. 1986). In the instant case, there is substantial, credible evidence in the record to support a finding that the circumstances of defendant's arrest did not qualify as "custodial interrogation" as would implicate Miranda.

Nonetheless, evidence though legally obtained sometimes can still fail to create "probable cause" for an arrest. "Probable cause" exists where an officer's suspicions are well-founded, though they need not be beyond a reasonable doubt. State v. Wanczyk, 201 N.J. Super.258, 266 (App. Div. 1985). For a DWI suspect, "the yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer 'had reasonable grounds to believe' that the driver was operating a motor vehicle in violation [of N.J.S.A.39:4-50]." State v. Moskal, 246 N.J. Super.12, 21 (App. Div. 1991) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)).

In the instant matter, there was substantial, credible evidence in the record to support a finding of probable cause to arrest defendant. That evidence included the troopers' observation that defendant had bloodshot, watereyes; that his breath and his car smelled of alcohol; and that he failed several field sobriety tests. Defendant also admitted to drinking and, as the Law Division judge noted, he was arrested around 4:00 a.m. on New Year s Day. While defendant emphasizes that the accident was caused by "black ice" on the road, that claim had no bearing on the charge under N.J.S.A.39:4-50: the relevant issue here was whether he operated the vehicle while intoxicated, for which defendant could be found guilty, regardless of whether his intoxication was the cause of the accident.

Affirmed.

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

2

Defendant's motion sought an order to (1) "suppress evidence and/or statements made by the defendant in violation of the defendant's Constitutional rights"; (2) "invalidate the search of defendant's person"; (3) "invalidate the search of defendant's automobile"; (4) suppress and exclude from trial "[a]ny and all statements of the defendant obtained by the Woodbridge Police on January 1, 2008[.]" In a post suppression hearing letter brief, defendant's attorney argued that the evidence also included any results from sobriety and Breathalyzer tests. Although police administered a Breathalyzer test, its results are not disclosed in the record nor were they relied upon by the State.

3 Apparently, it had been adjourned from March 14, 2008 although the record does not disclose a reason for the adjournment.

4 Although the State conceivably could have filed a protective cross-motion with the Law Division for leave to appeal the municipal court's denial of its adjournment request, we do not believe, as discussed infra, it had any obligation to do so, given that the State succeeded in defeating the suppression motion in spite of the court's refusal to postpone the hearing.

5 Defendant did not object to the judge's declaration of a mistrial or the court's consideration of all of the evidence.

6 The remaining charges were dropped.

7 However, we do recognize the differences between this case and Audette. Evidently, in the instant matter the hearing had been adjourned before, but the record does not reflect the reasons for any adjournments. Also, in Audette the State did not produce any evidence at the suppression hearing. Here, the State produced evidence which the Law Division determined was insufficient. Recognizing, however, that the only reason for the deficiency was the municipal court's incorrect denial of the State's adjournment request and that defendant ultimately had the benefit of a new hearing as compared to a continued hearing, we find no importance to these differences between the two cases.

8 An opportunity that defendant's attorney noted in his response to the municipal court declaring a mistrial.