STATE OF NEW JERSEY v. JOHN R. ENGLE

NOT FOR PUBLICATION WITHOUT THE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.

JOHN R. ENGLE,

Defendant-Appellant.

__________________________________________

March 16, 2015

Submitted November 10, 2014 Decided

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 04-13.

John Menzel, attorney for appellant.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Senior Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John R. Engle appeals from a judgment of conviction after his trial de novo for two motor vehicle violations: driving while intoxicated (DWI), N.J.S.A. 39:4-50; and improper turn, N.J.S.A. 39:4-123. In light of his prior DWI convictions, defendant was sentenced to: 180 days' incarceration; ten years' license suspension; mandatory three years of ignition interlock upon restoration of driving privileges; attendance at an Intoxicated Driver Resource Center (IDRC) for forty-eight hours; and appropriate fines and penalties. We affirm.

I.

The record discloses the following facts adduced from the trial de novo in the Law Division on the record developed in the municipal court. On October 7, 2011, at approximately 11:02 p.m., Officer John Ziobro of the Brick Township Police Department observed defendant's vehicle make an illegal left turn against a "No Turns" sign. Ziobro effectuated a motor vehicle stop.

When Ziobro approached the driver's side window, he detected an odor of alcohol. The officer also noticed that defendant's eyes were bloodshot and watery. Ziobro asked defendant to exit the vehicle and perform several field sobriety tests (FSTs). The officer did not ask defendant about any medical conditions that might impair FST performance. Defendant had previously suffered a tibial plateau fracture in his left knee requiring surgical repair. While exiting and moving towards the rear of the vehicle, defendant was swaying and staggering, using his left hand to maintain balance.

Ziobro first conducted a horizontal gaze nystagmus (HGN) test. Defendant failed to "smoothly" follow the stimulus utilized in the HGN test and exhibited "maximum deviation in each eye." The officer then administered the walk-and-turn test. As Ziobro was giving instructions, defendant was unable to maintain his balance. Defendant began the test before being told to do so, stopped five times, repeatedly raised his arms from his sides for balance, improperly turned right rather than left as instructed, and had difficulty maintaining balance while trying to touch heel-to-toe.

Lastly, the officer administered the one-leg-stand test, first demonstrating how the test had to be performed. Defendant was asked to raise his right foot approximately six inches off the ground and to hold it for thirty seconds, while counting aloud. Defendant began before being instructed, raised his arms and hopped on his left leg for balance, failed to raise his right foot more than two inches, and had to stop and lower his right foot five times during the first twenty seconds. Based on his observations, Officer Ziobro placed defendant under arrest for DWI; reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A. 39:4-97; improper turn; and driving while his license was suspended, N.J.S.A. 39:3-40.

At the municipal trial, Lance Gooberman, M.D., testified on behalf of defendant. Dr. Gooberman challenged the FSTs, testifying that defendant's excessive weight and reconstructed left knee impacted his performance on the tests. Dr. Gooberman further testified that bloodshot and watery eyes are not reliable indicators of alcohol impairment and are consistent with the cold defendant asserted he was suffering from at the time. In summation, defendant argued the officer erred in not inquiring about any existing medical conditions prior to conducting the FSTs, particularly regarding the one-leg-stand test. The State noted in its summation that defendant did not complain of any pain during the tests and never informed Officer Ziobro of his injury. Defendant objected to this statement.

On January 9, 2013, the municipal court found defendant guilty of DWI and improper turn based on the officer's observations. The court found defendant not guilty of the charges of reckless driving, careless driving, and driving with a suspended license. In so ruling, the municipal court judge observed that while defendant's argument concerning his pre-existing injury raised "legitimate concerns," defendant never said anything about his left knee to the officer.

Defendant appealed and, on August 22, 2013, a de novo trial was held in the Law Division. The Law Division judge also found defendant guilty of DWI and improper turn based on the officer's observations. Although the judge did "agree with [the State] that you can't have it both ways" and argue that, while consideration of defendant's silence is entirely out of bounds, "I want to use that to my benefit and prove that all of these test results were not of any value whatsoever," ultimately he concluded it was not "necessary for [the court] to rely upon [] defendant's silence with respect to complaining . . . or indicating to the officer that he had [any] kind of difficult[y]" to find defendant guilty of DWI. The judge imposed the same sentence as the municipal court, including a stay of incarceration pending appeal. This appeal ensued.

On appeal, defendant raises the following issues for our consideration

POINT I

RELIANCE ON DEFENDANT'S SILENCE AS AN ADMISSION VIOLATED HIS PRIVILEGE TO REMAIN SILENT AND WARRANTS A NEW TRIAL.

POINT II

DEFENDANT WAS ENTITLED TO A JURY TRIAL IN LIGHT OF THE LEGISLATURE'S SHIFT, WITH THE 2004 AMENDMENTS TO N.J.S.A. 39:4-50, FROM REHABILITATION TO PUNISHMENT OF THIRD DWI OFFENDERS, COUPLED WITH THE POSSIBILITY OF JAIL IN EXCESS OF 180 DAYS AND IMPOSITION OF OTHER ONEROUS PENALTIES. (Not Raised Below).

II.

Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses,'" ibid. (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)), as the Law Division judge is not in a position to observe "'the character and demeanor of witnesses and common human experience that are not transmitted by the record.'" Ibid. (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).

Moreover, "[u]nder 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." Locurto, supra, 157 N.J. at 474. In this case, the Law Division judge clearly understood that his role was to make independent findings, as they were ultimately reflected in his oral opinion. We therefore defer to those findings. However, no such deference is owed to the Law Division judge or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts. See State v. Handy, 206 N.J. 39, 45 (2011).

A.

Defendant first argues the Law Division judge violated his constitutional right against self-incrimination by relying on his silence at the scene of the traffic stop as evidence of his guilt of DWI. We disagree.

The privilege against self-incrimination embedded in the Fifth Amendment to the United States Constitution has been construed to preclude the State's use of a defendant's post-arrest silence following the administration of Mirandawarnings for the purposes of impeachment. Greer v. Miller, 483 U.S. 756, 763, 107 S. Ct. 3102, 3107, 97 L. Ed. 2d 618, 628 (1987) (citing Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976)). That protection extends even further to certain evidentiary uses of a defendant's pre-arrest silence in New Jersey, where a suspect has "'the right to remain silent when in police custody or under interrogation.'" State v. Muhammad, 182 N.J.551, 571 (2005) (quoting State v. Brown, 118 N.J. 595, 610 (1990)). Thus, under New Jersey law, a defendant's "'silence "at or near" the time of his arrest may not be introduced to impeach his credibility.'" Ibid.(quoting Brown, supra, 118 N.J.at 610).

In State v. Stas, 212 N.J. 37 (2012), the Court extended this protection to those tried for DWI-related offenses, reversing the defendant's conviction where the Law Division judge relied on the "defendant's silence as substantive evidence of his guilt and for the purpose of assessing his credibility." Id. at 42. However, in reaching its conclusion, the Court made clear that it was "the Law Division's use" of defendant's silence that violated his "federal constitutional privilege against self-incrimination, and his state statutory and common law privilege against self-incrimination." Ibid. (emphasis added).

Here, the Law Division judge commented on what he perceived to be the intellectual inconsistencies inherent in defendant's attempt to use his undisclosed injury to attack the FSTs' empirical value while simultaneously relying on the right against self-incrimination to preclude discussion of his failure to inform the officer of that injury. Nevertheless, the judge unambiguously stated: "I don't find that it's necessary for this [c]ourt to rely upon the defendant's silence with respect to complaining about those or indicating to the officer that he had those kind of difficulties."1 Rather, the Law Division judge relied upon the fact that the tests were simply not complied with, "not just from a physical standpoint but also from a mental standpoint that the instructions were not followed."

Therefore, because the Law Division judge did not use defendant's pre-arrest silence "as substantive evidence of his guilt [or] for the purpose of assessing his credibility," see Stas, supra, 212 N.J. at 42, defendant's right against self-incrimination was not violated.

Furthermore, in New Jersey it is well established that an officer's subjective observation of a defendant is sufficient to sustain a DWI conviction. State v. Bealor, 187 N.J. 574, 588-89 (2006). As such, defendant's conviction based upon Ziobro's observation of defendant on the night in question was entirely proper.

B.

Defendant next contends that his inability to have his case tried before a jury violates his constitutional right under the Sixth Amendment and Article One, Paragraph Nine of the New Jersey Constitution. Although in State v. Hamm, 121 N.J. 109, 111 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991), the Supreme Court declined to attach the right to a jury trial to DWI offenses, defendant argues the question requires re-examination in light of the Legislature's 2004 amendments to the penalties for third-time offenders under N.J.S.A. 39:4-50.

We recently rejected an identical argument and held that neither the United States nor the New Jersey Constitution provide for a right to a jury trial in DWI proceedings, which are quasi-criminal in nature. State v. Enright, 416 N.J. Super. 391, 403 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011); see also State v. Federico, 414 N.J. Super. 321, 330 (App. Div. 2010) ("'Where [DWI and] factually related petty offenses are tried together whose maximum sentences [when combined with the DWI sentence] total more than six months, and the defendant is not offered a jury trial, the sentences may not total more than six months.'" (quoting State v. Linnehan, 197 N.J. Super. 41, 43 (App. Div. 1984), certif. denied, 99 N.J. 236 (1985))).2 Defendant does not put forth any persuasive rationale for why we should now depart from our reasoning in Enright. We therefore decline to do so, and hold defendant's constitutional right to a jury trial was not violated. Id. at 403.

We find defendant's remaining arguments to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 We need not address the municipal court judge's consideration of defendant's silence regarding his injury. That consideration is not within the scope of our review. See Clarksburg Inn, supra, 375 N.J. Super. at 639 ("Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." (citing Johnson, supra, 42 N.J. at 161-62)).

2 We note that the Supreme Court recently granted certification in State v. Denelsbeck, No. A-5730-12 (App. Div. Oct. 2, 2014), certif. granted, ___ N.J. ___ (Feb. 11, 2015), where we similarly held the right to a jury trial did not attach to DWI proceedings, which was the sole issue on appeal. Id. (slip op. at 2).