STATE OF NEW JERSEY v. JANET MANISERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0491-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JANET MANISERA,

Defendant-Appellant.

________________________________

June 19, 2015

Before Judges Reisner, Koblitz and Currier.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Docket No. 12-050.

Janet Manisera, appellant pro se.

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Janet Manisera appeals from the Law Division's August 22, 2013 order entered after a de novo trial on the record. The Law Division found her guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, her third DWI conviction; refusal to submit to a breath test, N.J.S.A. 39:4-50.4a; and the petty disorderly persons offense of improper behavior, N.J.S.A. 2C:33-2(a). The municipal court had found her guilty of DWI, refusal and resisting arrest, N.J.S.A. 2C:29-2(a). Defendant was sentenced to 180 days in jail, but only ninety days were to be served in the county correctional facility: the remaining ninety days could be served in a treatment program.1 Defendant's license was revoked for ten years, and appropriate fines and penalties imposed. The Law Division ordered that defendant have an ignition interlock device on her vehicle for eleven years, which included the ten years that her license was suspended. For the offense of improper behavior, defendant was sentenced to fines and ninety days in the county correctional facility, suspended.2 After vacating the conviction and sentence for improper behavior, a charge that was not properly before the Law Division, and the municipal court conviction for resisting arrest, we affirm the remaining convictions.

The trial revealed the following facts. On Sunday, January 8, 2012, defendant called the Roxbury Township Police concerning a dispute that took place at her home, where she lived with her tenant. Sergeant Catalano was the patrol supervisor that evening. He, Patrolman Denicola and two other officers responded to the call at defendant's residence. Denicola testified that defendant invited them into her home.

After defendant explained her problem, she was told that a police report would be available to her at a later date. Defendant wanted the police to do more. Defendant appeared to be intoxicated because her speech was slurred, she was flailing her arms, she smelled of alcohol and looked disheveled. Denicola observed an empty wine bottle and another bottle that had some wine remaining. The defense's only witness, defendant's friend, who had been at her home at one point that evening, testified that she did not appear intoxicated to him that night.

Defendant called the police a second time; Catalano testified that the call, to which another officer responded, was a complaint about how the previous call had been handled. Defendant's third call to the police resulted in Catalano's second visit to defendant's home. On both occasions, defendant opened the door, inviting him in, and the conversations took place in the kitchen of her home. He again informed her of the procedure concerning her earlier complaint about her tenant, and instructed her how to pick up a copy of the police report. Catalano testified that he told defendant "that she was not to dial 9-1-1 unless she had an emergency to report." Defendant "was intoxicated and belligerent and not happy with the service she was being provided." Catalano stated that he observed that defendant's speech was slurred, her breath smelled of alcohol, and she seemed angry. He observed a wine bottle. He stated that she had said she would call the FBI or state police and that Catalano would lose his job for "protecting a drug dealer[.]"

After Catalano left, defendant called the police a fourth time. Catalano, accompanied by another officer, returned to defendant's residence. Catalano testified: "I informed her that if she called 9-1-1 again, she would be placed under arrest for creating a false call to 9-1-1." He stated that all of defendant's calls after the initial call were about the manner in which the initial call had been handled.

Catalano was then advised via police radio that defendant had made a fifth 9-1-1 call. He and another officer returned to defendant's home with the express intent to arrest her. Defendant would not let the officers inside. Catalano spoke with her through the closed door, informing her that she was under arrest.

Her tenant came out of the home through the garage and allowed the officers to enter the residence through his bedroom, which opened into the kitchen, a shared common area. Defendant was in the kitchen. Catalano testified that while placing her in handcuffs, defendant was kicking and trying to pull away. Defendant was taken to the police station for processing and then driven back to her home.

Approximately twenty-five minutes after her return home, police dispatch advised Catalano that another call had been placed from defendant's residence concerning a landlord-tenant dispute. This last call was from a female who claimed to have been threatened by the tenant. Catalano, Denicola and other officers returned to defendant's residence. There was no answer when they knocked on her door and telephone calls to defendant went unanswered. The tenant came out of the house and told them that defendant's car was gone.

The police located defendant's unoccupied car in the parking lot of a local CVS Pharmacy. Denicola saw defendant leave the pharmacy, get into her car and drive towards a local restaurant. Catalano observed defendant driving her car in the parking lot of the CVS Pharmacy.

Denicola turned on his patrol lights and stopped defendant's car, after which she turned the car off, removed the keys and exited the car, although she had been told not to do so. Defendant began yelling, "[G]o fuck yourself" and told Denicola, "I wasn't driving the car." When asked to return to the car, defendant refused. Catalano stated that defendant was "belligerent and violent," while Denicola described her as "combative." Field sobriety tests were not administered. Denicola stated that defendant was heavily intoxicated and uncooperative and that they were "not going to conduct field sobriety tests with an irate person that . . . wants to fight us."

Defendant refused to give the officers her hands so that she could be handcuffed. Catalano stated: "[S]he had to be taken down in order to be arrested, to be placed in handcuffs." Defendant continued to kick and yell profanities, and, once inside the vehicle, repeatedly kicked the car door to prevent it from closing, causing a minor injury to another officer. After the door was shut, defendant kicked the car window.

She was taken back to police headquarters. Catalano testified that, although those suspected of DWI are not "normally" restrained, defendant was restrained because she was "physically uncooperative in the processing area." Defendant refused to submit to the breath test even after being read the "Standard Statement for Operators of a Motor Vehicle [pursuant to] N.J.S.A. 39:4-50.2(e)," effective April 26, 2004, which advised her that her license would be revoked for lack of compliance. Defendant responded, "No absolutely not."

In reaching its determination, the Law Division disregarded any evidence obtained from the final police entry into defendant's home to arrest her, finding that entry to be without defendant's permission or a warrant and therefore unconstitutional.

On appeal, defendant raises the following issues:3

POINT I: ENTRY BY POLICE INTO MS. MANISERA'S HOME WAS ILLEGAL IT WAS MADE WITHOUT A WARRANT, WITHOUT HER CONSENT AND WITHOUT AN EXCEPTION TO THE WARRANT REQUIREMENT

POINT II: SUPPRESSION V. TRIAL TESTIMONY

A. The Munic. Judge Improperly Relied On Suppression Evidence In The Trial On The Merits

B. The Failure Of Munic. Judge To Separate The Suppression Testimony From The Trial Testimony Deprived Ms. Manisera Due Process Of Law And Her Ability To Testify

C. The Failure Of The Munic. Judge To Have A Suppression Hearing Deprived Ms. Manisera's Attorney From Planning Strategic Defense

POINT III: THE MUNIC. JUDGE RELIED ON HEARSAY EVIDENCE AND IMPROPERLY FOUND MS. MANISERA REFUSED TO PERFORM STANDARDIZED FIELD SOBRIETY TESTS AND USE THAT EVIDENCE TO CONVICT HER

POINT IV: THE STATE FAILED TO PROVE MS. MANISERA'S GUILT BEYOND A REASONABLE DOUBT.

POINT V: FRUIT OF THE POISONOUS TREE DOCTRINE.

A. Sgt. Catalano's Testimony Regarding His Observations Inside Ms. Manisera's Home Are Fruit Of The Poisonous Tree But Were Used To Convict Her

B. Ofc. Denicola's Testimony Regarding His Observations Inside Ms. Manisera's Home Are Fruit Of The Poisonous Tree But Were Used To Convict Her

POINT VI: THE MUNIC. JUDGE RELIED ON BOTH OFFICER'S LAY OPINION THAT MS. MANISERA WAS INTOXICATED WITHOUT A PROPER FOUNDATION

POINT VII: THE MUNIC. JUDGE AND THE TRIAL DENOVO JUDGE FAILED TO ACT ON MS. MANISERA'S DISCOVERY REQUESTS

POINT VIII: THE MUNIC. PROSECUTOR WAS BARRED FROM PROSECUTING MS. MANISERA'S CASE BECAUSE HE HAD A PUBLIC ARGUMENT WITH HER IN 2009 REGARDING ROXBURY POLICE BIAS AND HE WAS CAUGHT SLANDERING MS. MANISERA TO A WITNESS PRIOR TO THE TRIAL STARTING

POINT IX: UNEXPLAINED MISHAPS WITH FAVORABLE CVS SURVEILLANCE EVIDENCE MARKED AT TRIAL AND SUPPRESSED BY MUNIC.

POINT X: UNEXPLAINED MISHAPS WITH FAVORABLE CVS SURVEILLANCE VIDEO EVIDENCE MARKED AT TRIAL CONTIONUE ON TRIAL DE NOVO WITH MCPO, THE SUPERIOR COURT JUDGE AND COUNSEL HAVING WORKING COPIES OF THE EVIDENCE PRIOR TO ORAL ARGUMENT4

POINT XI: MS. MANISERA WAS DENIED HER RIGHT TO A SPEEDY TRAIL

POINT XII: MS. MANISERA'S REFUSAL CHARGE MUST BE DISMISSED DUE TO LACK OF PROBABLE CAUSE AND THE OFFICER'S FAILED TO ADVISE HER OF INTERLOCK PENALTIES

On this appeal, our review is "limited to determining whether the Law Division's de novo [1025] findings 'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012), (quoting [State v. Johnson, 42 N.J. 146, 162 (1964)]), aff d, 219 N.J. 584 (2014).

Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. [T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[State v. Locurto, 157 N.J. 463, 474 (1999) (citations omitted).]

In reviewing a trial judge's conclusions in a non-jury case, substantial deference is given to the trial court's findings of fact. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). These findings should only be disturbed when there is no doubt that they are inconsistent with the relevant, credible evidence presented below, such that a manifest denial of justice would result from their preservation. Id. at 412. We owe no deference to the trial judge's legal conclusions. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

The initial entries into defendant's home were initiated by defendant, who made 9-1-1 calls and invited the police into her kitchen. Such entries, upon invitation, are not improper. See State v. Padilla, 321 N.J. Super 96, 107-08 (App. Div.) (stating that there was nothing unreasonable about officers requesting to enter a room in the course of "continuing their investigation and making reasonable inquiries[]"), certif. denied, 162 N.J. 198 (1999). SeeState v. Suazo, 133 N.J. 315, 322 (1993)("[A] consent sufficient to avoid the necessity of a search warrant may be implied from all of the attendant circumstances."). Those proper entries gave the police ample grounds to believe that defendant was intoxicated, and hence to stop her car when they saw her driving later that evening.

Only the final entry was improper and therefore the observations from that final entry were not admitted into evidence. The Law Division stated that it "independently [excluded] all inadmissible evidence related to the warrantless entry and arrest in its consideration of the ultimate issue." It found that the admissible evidence supported the municipal court's determination. "Trained judges have the ability 'to exclude from their consideration irrelevant or improper evidence and materials which have come to their attention.' State v. Medina, 349 N.J. Super. 108, 130 (App. Div.) (quoting State v. Kunz, 55 N.J. 128, 145 (1969)), certif. denied, 174 N.J. 193 (2002).

A person is deemed to have been driving while intoxicated if that person "operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug . . . ." N.J.S.A. 39:4-50. Although defendant denied driving the car when at the scene of the DWI arrest, both officers testified that they saw her driving. Since defendant refused to submit to a breath test, the issue thus becomes what evidence led to the conclusion that defendant was intoxicated when driving her vehicle.

Intoxication may be proven by evidence of a defendant's physical condition. State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). "The statute does not require as a prerequisite to conviction that the accused be absolutely 'drunk' in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988), certif. denied, 114 N.J. 473 (1989). In State v. Morris, 262 N.J. Super. 413, 416, 421 (App. Div. 1993), we upheld a DWI conviction, finding that slurred speech, disheveled appearance, bloodshot eyes, alcoholic odor on breath and abrasive demeanor were evidence of defendant's intoxication.

The Law Division relied on the officers' testimony, which included that defendant's eyes were bloodshot, her breath smelled of alcohol, her speech was slurred, and she was belligerent. The court stated, "This [c]ourt is convinced that the defendant's faculties were substantially impaired when she operated her vehicle on the night in question."

Defendant states that the officers failed to inform her that one of the penalties for refusing the breath test was that an interlock device would be installed.

[There are] four essential elements to sustain a refusal conviction: (1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test. N.J.S.A. 39:4-50.2(e), 39:4-50.4a(a); [State v. Wright, 107 N.J. 488, 490 (1987)].

[State v. Marquez, 202 N.J. 485, 503 (2010) (emphasis added).]

Specifically, N.J.S.A. 39:4-50.2(e) requires the police to "inform the person arrested of the consequences of refusing to submit to such test . . . ." Defendant was read the then-current standard statement, which included the following paragraph

8. According to the law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months but no more than 20 years. The Court will also fine you a sum of no less than $300, and no more than $2,000 for your refusal conviction.

Thus, defendant is correct that the officers used a form that did not mention the interlock device.5 We note, however, that defendant was warned that a refusal conviction would result in the revocation of her driver's license. The installation of an interlock device would not preclude the defendant from driving, just from driving while intoxicated. In State v. O'Driscoll, 215 N.J. 461, 466 (2013), decided one month after the Law Division decision, our Supreme Court wrote: "Courts should consider whether an error in the reading of the standard statement is material in light of the statutory purpose to inform motorists and impel compliance." The Court found that a police officer's reading of an outdated standard statement that misstated the minimum revocation period by one month, as well as the minimum and maximum fines, was inconsequential because the statement, which informed the defendant that compliance was mandatory and that his license would be revoked if he did not submit to the test, still "inform[ed] defendant of the consequences of refusal in a manner that should have impelled a reasonable person to comply." Id. at 465, 479. We thus conclude that the absence of the interlock device instruction on the standard statement read to defendant was inconsequential given that defendant had been warned that she would lose her driving privilege.

Although not raised by defendant, we note that she was convicted by the Law Division of a petty disorderly persons offense, improper behavior; the municipal court had acquitted her of this charge. We also note that the Law Division made no findings pertaining to the charge of improper behavior, nor any findings pertaining to the charge of resisting arrest, even though the municipal court had convicted her of resisting arrest. Thus, we vacate the petty disorderly persons conviction for improper behavior as well as the disorderly persons conviction for resisting arrest.6 Clearly a trial de novo cannot result in a conviction for a charge of which defendant was previously found not guilty, nor can a municipal court conviction persist when it has been appealed and not addressed after a trial de novo. In that context, we note that the State dud not cross-appeal from the Law Division judge's order.

All remaining issues raised by defendant are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2). We note only the following with regard to her claim of a violation of her Constitutional right to a speedy trial. See State v. Fulford, 349 N.J. Super. 183, 190 (App. Div. 2002) ("The constitutional right to a speedy trial attaches upon defendant's arrest."). Defendant was tried in Municipal Court ten months after arrest. In State v. Cahill, 213 N.J. 253, 270 (2013), decided after defendant's municipal court trial, our Supreme Court "decline[d] to adopt a rigid bright-line try-or-dismiss rule[.]" The Court noted that the sixty-day trial goal in Administrative Directive #1-84 (July 26, 1984), "was designed to reduce the backlog of . . . cases and to protect the public from the havoc wrought by intoxicated drivers." Id. at 269. The Court reaffirmed the case-specific four factor analysis of the "length of the delay, the reason for the delay, any effort by defendant to assert his right to a speedy trial, and any prejudice suffered by defendant." Id. at 271-272 (citingBarker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)). Defendant raises this speedy trial issue for the first time on appeal and alleges no prejudice. She thus does not meet the legal standard required to demonstrate a violation of her right to a speedy trial. Ibid.

Affirmed in all respects except that the conviction for the petty disorderly persons offense of improper behavior, N.J.S.A. 2C:33-2(a), is vacated. We remand only for the entry of an amended order vacating that conviction as well as vacating the municipal court disorderly persons conviction for resisting arrest, N.J.S.A. 2C:29-2(a). Affirmed in part, vacated and remanded in part. We do not retain jurisdiction.

1 "For a third or subsequent violation, a person shall be . . . sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program . . . ." N.J.S.A. 39:4-50(a)(3).

2 As we are vacating the petty disorderly persons offense we need not discuss the legality of the sentence.

3 We have reproduced the point headings exactly as they appear in defendant's brief.

4 In argument before the Law Division, defendant asserted inadequate assistance of municipal court trial counsel because, among other things, although there were purportedly sixteen one-minute clips from a CVS surveillance video of the evening that defendant alleged showed she behaved in a sober fashion, counsel only introduced "two very brief segments," which were also submitted to the Law Division. The Law Division judge rejected that argument, as well as defendant's additional objections to the municipal's judge's handling of the trial. Defendant's arguments on those points, as repeated on this appeal, are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

5 N.J.S.A. 39:4-50.17, which requires the installation of an interlock device for a refusal conviction, became effective January 2001 for convictions committed on or after September 30, 2000. Effective July 1, 2012, an instruction about the installation of an interlock device was included in the Attorney General's Standard Statement for Motor Vehicle Operators. See http://www.njsp.org/divorg/invest/pdf/adtu/070912_dwi_standardstatement.pdf. This was approximately seven months after defendant refused to provide a breath sample.

6 In its oral decision, the Law Division mistakenly stated that in municipal court, defendant had been "found guilty of DWI, refusal and improper behavior and all other charges were acquittals." (emphasis added). The Law Division also stated that it found defendant guilty of improper behavior, and included that determination on the accompanying order, without mentioning in any order a disposition for the charge of resisting arrest.