STATE OF NEW JERSEY v. ADRIAN G. ERVIN

NOT FOR PUBLICATION WITHOUT THE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.

ADRIAN G. ERVIN,

Defendant-Appellant.

________________________________

October 7, 2015

Submitted September 24, 2015 Decided

Before Judges Haas and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 5036.

Meaghan Tuohey-Kay, attorney for appellant.

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Adrian Ervin appeals from the August 16, 2013 order of the Law Division finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.

We derive the following facts from the record. At 2:06 a.m. on January 1, 2012, Officer Zazulkewycz was on patrol with his partner, Officer Grycuk. As the two officers drove on Monroe Street, Officer Zazulkewycz saw defendant driving on Main Street and making a "very wide" right turn onto Monroe Street. When defendant made the wide turn, a vehicle in front of the patrol car had to stop to avoid being struck by defendant's car. Therefore, the officers initiated a traffic stop.

Officer Zazulkewycz asked defendant for his credentials and noticed that defendant's "hand movements were slow and fumbling." Defendant's "speech was slurred and slow" and the officer "smelled the odor of alcoholic beverages emanating from the vehicle . . . ."

Officer Zazulkewycz asked defendant to exit the vehicle for field sobriety tests. As defendant did so, "[h]e was stumbling and had poor balance." Defendant failed the field sobriety tests. "His balance was poor," he "couldn't walk proper[l]y," and he was "unable to keep his feet together" or follow the officer's directions. Officer Zazulkewycz determined that defendant was intoxicated and arrested him.1 After the arrest, defendant told Officer Grycuk that he had been drinking at a bar since 4:00 p.m. the previous day.2

Based upon the officers' observations, the municipal court judge found defendant guilty of DWI within 1,000 feet of a school zone, careless driving, and driving without a seatbelt. The judge sentenced defendant to a one-year driver's license suspension, and imposed appropriate fines, costs, and surcharges.

Defendant appealed his conviction to the Law Division. Following a trial de novo on the record, Judge Miguel de la Carrera made detailed factual findings and legal conclusions in an oral opinion. The judge ruled that the State failed to prove beyond a reasonable doubt that the offense occurred within 1,000 feet of a school zone. Therefore, the judge dismissed that charge; found defendant guilty of the lesser-included offense of DWI; and reduced the period of his license suspension to three months. The judge also reduced the total fines and penalties imposed by the municipal court judge.3 This appeal followed.

On appeal, defendant raises the following contentions

Point I

[The Municipal Court Judge's] Denial of [Defendant's] Motion to Relieve Counsel was in Violation of [Defendant's] Sixth Amendment Right to be Represented by Counsel of His Own Choosing.

Point II

Prior Counsels Failed to Raise the Issue that the Officers Did Not Have Probable Cause for Initiating a Traffic Stop (Not Raised Below).

We reject these contentions and affirm.

In Point I, defendant argues that the trial judge erred by denying his request for an adjournment to permit him to retain a new attorney. The record reflects that the trial began on July 23, 2012 with the testimony of Officer Zazulkewycz. The next trial date was August 27, 2012. At the start of that proceeding, defendant told the municipal court judge that he would "like to relieve [his attorney] of his representation. I'd like to gain another representative." Defendant's attorney explained that, about "30 seconds ago[, defendant] presented to me certain information and I said what does that intend to prove." Defendant responded, "[Y]ou don't want to handle this case, I want you out." Although defendant stated he had "somebody else in mind" to represent him, he did not identify this attorney and he gave no indication as to the length of the adjournment he sought to retain a new attorney.

The judge denied defendant's request. She explained that the trial had already been adjourned once after defendant had retained a new attorney to represent him and testimony had already begun. The judge also noted that, if defendant had truly been dissatisfied with his attorney, he had over a month to take action to replace him but failed to do so.

Based upon his de novo review of the record, Judge de la Carrera rejected defendant's argument that an adjournment should have been granted. After reviewing the factors set forth in State v. Furguson, 198 N.J. Super. 395, 402 (App. Div. 1985), certif. denied, 101 N.J. 266 (1985), the judge concluded that the municipal court judge's "decision not to allow the trial to be in effect derailed at the last moment was justified and supported by the identifiable factors." The judge found that defendant made a "spur-of-the-moment decision" to attempt to replace his attorney after a brief discussion at the beginning of the second day of trial. Like the municipal court judge, Judge de la Carrera also observed that defendant had over a month to retain new counsel before the second trial date, but did not do so. Defendant also did not present any evidence that he had taken any steps to hire a new attorney and did not specify the length of the adjournment he sought.

On appeal, defendant again argues that the trial judge should have granted his request for an adjournment. We disagree.

It is well established that the Sixth Amendment entitles a defendant who does not require appointed counsel to choose his or her own attorney. State v. Kates, 216 N.J. 393, 395 (2014). However, this right is not absolute and must be balanced against the demands of the court's calendar. Id. at 396. Thus, when a defendant requests an adjournment in order to retain a new attorney, the trial judge should consider the factors set forth in Furguson, supra, in considering the request. Ibid. The Furguson factors include

the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case.

[Furguson, supra, 198 N.J. Super. at 402 (citing United States v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978), certif. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 933 (1979)).]

"Trial judges retain considerable latitude in balancing the appropriate factors." Kates, supra, 216 N.J. at 397 (citing State v. Hayes, 205 N.J. 522, 537-39 (2011)). Our Supreme Court has therefore "underscore[d] that only if a trial court summarily denies an adjournment to retain private counsel without considering the relevant factors, or abuses its discretion in the way it analyzes those factors, can a deprivation of the right to choice of counsel be found." Ibid.

Applying these principles, we discern no abuse of discretion in the judge's handling of defendant's adjournment request. Defendant's attempt to change attorneys was a "spur-of-the-moment decision." The trial had already been delayed once when defendant previously retained new counsel. Defendant did not specify the amount of time needed to engage another attorney and had not taken any identifiable steps to do so in the period between the first and second day of trial. The testimony of the State's main witness had already been taken and the remaining two witnesses were present in court and ready to testify. Therefore, we reject defendant's contention on this point.

In Point II, defendant argues for the first time that the officers' observations should not have been admitted in evidence because they did not have probable cause to stop his car. We disagree.

As defendant concedes, this argument was never presented to either the municipal court judge or to Judge de la Carrera. Ordinarily, we will decline consideration of an issue not properly raised before the trial court, unless the jurisdiction of the court is implicated or the matter concerns an issue of great public importance. Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Neither situation exists here and, therefore, we decline to consider defendant's contention on this point.

However, even if we did, there was clearly ample evidence in the record to support the conclusion that the officers had probable cause to stop defendant's car for careless driving. The officers saw defendant make a wide turn and almost strike the vehicle in front of them. See State v. Amelio, 197 N.J. 207, 211 (2008) (holding that a motor vehicle stop may "be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed"). Therefore, the stop was valid and the officers' subsequent observations of defendant, including the results of the field sobriety tests, were properly admitted into evidence.

Affirmed.

1 The officers charged defendant with DWI within 1,000 feet of a school zone, N.J.S.A. 39:4-50(g); careless driving, N.J.S.A. 39:4-97; and failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f).

2 At the police station, another officer administered an Alcotest to defendant. In the municipal court, however, the results of that test were ruled inadmissible.

3 Judge de la Carrera merged defendant's careless driving conviction with his DWI conviction. He also found defendant guilty of driving without a seatbelt and imposed appropriate fines and penalties for this offense.