STATE OF NEW JERSEY v. STEPHEN MCMAHON

NOT FOR PUBLICATION WITHOUT THE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.

STEPHEN MCMAHON,

Defendant-Appellant.

________________________________

SubmittedMay 17, 2016 Decided May 31, 2016

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 11-14.

Hunt, Hamlin & Ridley, attorneys for appellant (Raymond L. Hamlin, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Stephen McMahon appeals from his March 6, 2015 conviction in the Law Division, following a de novo determination of his appeal from the municipal court, on charges of driving while intoxicated, N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.4a; possession of an open container of alcohol, N.J.S.A. 39:4-51b; and operating a vehicle while his license was suspended, N.J.S.A. 39:3-40. After hearing the Law Division appeal and convicting defendant de novo, Judge Martha T. Royster sentenced defendant to an aggregate jail term of 180 days, a ten year license suspension, two years of ignition interlock, plus applicable fines, surcharges, and court costs. By order dated March 12, 2015, the judge stayed the jail term and monetary sanctions pending appeal, but did not stay the license suspension.

On this appeal, defendant presents the following three points of argument for our consideration

Point 1: THE TRIAL COURT COMMITTED REVERS[I]BLE ERROR AS ANY COMMUNICATION BY THE PROSECUTOR WITH THE WITNESSES HAD TO ALIGN WITH THE UNDERLYING PURPOSE OF SEQUESTRATION.

Point II: THE INTER[E]STS OF JUSTICE REQUIRES REVERSAL OF THE DEFENDANT'S CONVICTION.

Point III: THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GRANT DEFENDANT'S MOTION TO DISMISS FOR PROSECUTORIAL MISCONDUCT.

Having reviewed the record in light of the applicable legal standards, we find no merit in any of those arguments. Accordingly, we affirm the March 6, 2015 conviction. We remand this matter to the trial court for the limited purpose of issuing an order vacating the March 12, 2015 stay.

I

For purposes of this appeal, the essential facts underlying defendant's conviction can be summarized as follows. Defendant was stopped for speeding. The officers who conducted the stop observed a cup of liquid sitting in the cup holder near defendant's seat. He told them that the liquid was scotch whiskey. Defendant failed the roadside sobriety tests. The officers also observed various other indicia of defendant's inebriation, including fumbling for his credentials, a strong odor of alcohol on his breath, bloodshot and watery eyes, and drooping eyelids. The State produced evidence that defendant refused to submit to a breath test, and that his driving privileges were suspended at the time of the traffic stop.

II

Defendant's first point of appeal arises from a September 26, 2012 probable cause hearing held in the municipal court. The charges resulted from an incident in which the police were using a radar device to detect motorists traveling above the speed limit. According to the State, defendant's car was pulled over based on both the radar results and the observations of the police without using the radar. However, at a probable cause hearing in the municipal court, the judge excluded the radar results and transcripts of police radio communications at the time of the stop, because the State failed to turn over discovery in a timely manner.

Before hearing argument on the discovery issue, the judge granted a request by defense counsel to sequester the State's witnesses. After the judge ruled that the State's radar and radio broadcast evidence would be excluded, the State represented that it could still proceed with the hearing to establish probable cause for the stop based on the observations of the police officers. Defense counsel objected to the prosecutor speaking to the State's witnesses before the probable cause hearing began, due to his expressed concern that his adversary would coach the witnesses concerning the State's alternate theory as to their observations. The judge overruled defense counsel's objection, holding that the prosecutor was entitled to speak to the State's witnesses before the hearing began. The prosecutor offered to let defense counsel be present during his conversation with the officers, and the court declared a recess for a few minutes.

After the recess, the State presented its first witness. Port Authority Police Officer O'Sullivan explained that on the day in question at about 1:20 a.m., he was assigned to monitor traffic near the Lincoln Tunnel on the New Jersey side. He explained that the process involved an initial observation of the passing vehicles, followed by confirmation of their speed by using radar. According to Officer O'Sullivan, without using the radar, he observed that defendant's vehicle was traveling "well in excess of the posted speed limit of 50 miles per hour." He also explained his prior experience and training as a police officer which allowed him to gauge the speed of passing cars.

The officer also testified that he and his partner attempted to stop defendant's car on Route 3, but because defendant's car was traveling so fast, defendant was unable to pull over immediately and did not stop until his car reached "the Turnpike leg westbound a little further down the road." According to the officer, he and his partner were following defendant's car for a minute or a minute and a half, and were able to observe his speed during that entire time. On cross-examination, the officer admitted that his report of the incident did not include his own observations of the car's speed. He also admitted that prior to his testimony, the prosecutor told him that there was an issue with the radar paperwork and he was only going to ask him to testify about his own observations.

After the officer testified, defense counsel accused his adversary of coaching the witness. The judge rejected that argument, finding that it was entirely proper for the prosecutor to prepare his witness to testify and finding no evidence whatsoever that the prosecutor coached the witness as to what testimony to give. The judge later amplified that ruling with an observation that the prosecutor had an obligation to prepare his witnesses to testify and would have been remiss if he had not done so.

Thereafter, the State called Officer Giardullo, who had been Officer O'Sullivan's partner during the stop. Giardullo, who apparently was driving the police car, testified that he had not seen defendant's vehicle before activating the lights on the police car. However, Giardullo confirmed that he had the opportunity to observe defendant's car while the officers were pursuing the vehicle in an attempt to pull it over. He confirmed that O'Sullivan was with him in the car and had the same opportunity to observe defendant's car during the pursuit. However, the prosecutor did not ask Officer Giardullo to describe his observations as to defendant's speed, and defense counsel did not cross-examine him.

Following the hearing, the municipal judge found that O'Sullivan gave credible testimony, and there was no evidence that the officer was improperly coached as to his testimony. The judge also characterized as "specious" defense counsel's claim of a right to be present when the prosecutor prepared the State's witnesses for the hearing. The judge concluded that there was probable cause for the stop and for the issuance of the summons.

Defendant filed an interlocutory appeal to the Law Division from the municipal court's ruling. In a thorough oral opinion placed on the record on June 20, 2013, Judge Sheila Venable denied the motion. Like the municipal court, Judge Venable found no evidence that the prosecutor coached the witness and concluded that the sequestration order did not preclude the prosecutor from speaking to the State's witnesses. Judge Royster likewise rejected defendant's arguments when he raised them again in the course of the Law Division appeal from his conviction.

Defendant's Points I and III essentially repeat the arguments he presented to the municipal judge, Judge Venable and Judge Royster, concerning an alleged violation of the sequestration order and alleged prosecutorial misconduct. Those arguments were properly rejected by all three judges for the reasons they each stated on the record. We agree with the judges that the sequestration order did not preclude the prosecutor from speaking to the State's witnesses in preparation for the probable cause hearing. We also agree that there was no evidence that the prosecutor coached the witnesses.

It is clear from the record that the officers followed defendant's vehicle for some distance before he stopped his car. During that time, they obviously had an opportunity to observe defendant's car and to determine, based on their years of experience, whether the vehicle was likely exceeding the posted speed limit. Judge Royster found that testimony credible. We owe particular deference to Judge Royster's credibility determinations. See State v. Locurto, 157 N.J. 463, 474 (1999). Our obligation of deference is even "more compelling" because her credibility determinations mirrored those of the municipal judge. Ibid. Defendant's arguments on these points are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

III

Defendant also argues that Judge Royster's decision was not supported by sufficient credible evidence. See Locurto, supra, 157 N.J. at 471. We disagree. As previously noted, she found the police officers credible as to their observation that defendant's car was speeding, and we find no basis to disturb that finding. See id. at 474. Judge Royster also thoroughly explained why she believed Officer Giardullo's testimony about his identification of defendant, despite the officer's error in noting defendant's race on the incident report. Again, we find no basis to depart from our usual rule of deference to the judge's evaluation of witness credibility. Ibid. We find no grounds to overturn defendant's conviction, which was supported by substantial credible evidence.

We affirm defendant's conviction. We remand for the limited purpose of entering an order vacating the March 12, 2015 order staying the jail sentence and the penalties and costs. We do not retain jurisdiction.1

Affirmed in part, remanded in part.

1 We remand rather than vacating the order ourselves, in the event the trial court may wish to set a date on which defendant must report to jail, and to provide, if appropriate, a payment schedule for the monetary sanctions. We intimate no view as to how the trial court should exercise discretion in that regard.