STATE OF NEW JERSEY v. ROBERT TINLI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0484-07T40484-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT TINLI,

Defendant-Appellant.

________________________________________________________

 

Argued November 17, 2008 - Decided

Before Judges Carchman and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 08-2007.

Hector I. Rodriguez argued the cause for appellant.

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, on the brief).

PER CURIAM

Defendant Robert Tinli appeals from an order of the Law Division finding him guilty of refusing to submit to a breath test (refusal) in violation of N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a. Defendant was sentenced as a third-time offender under N.J.S.A. 39:4-50.4a, and he was fined $1,006, assessed $33 in costs, and $200 for the Driving While Intoxicated Surcharge. His driving privilege was suspended for ten years. Defendant filed a timely Notice of Municipal Appeal with the Superior Court, Law Division, Middlesex County, where his conviction and sentence were upheld. For the reasons which follow, we affirm.

While on duty at about 11:15 p.m. on February 21, 2004, East Brunswick Officer James W. Angermeier and his partner observed a stopped car in the middle of Old Bridge Turnpike without flashing hazard lights. Within that vehicle, the officer found defendant, Robert Tinli, slumped over the steering wheel. The engine was running. Officer Angermeier's partner opened the door of the passenger's side and turned off the ignition. Then, Officer Angermeier knocked on defendant's window, at which point defendant unsuccessfully attempted to shift the car into drive.

Upon opening the door of the car, Officer Angermeier detected the odor of alcohol on defendant's breath. He also observed that defendant's eyes were bloodshot and watery, and that he was slurring his speech. The officers then administered three field sobriety tests, all of which defendant failed. They arrested defendant and transported him to the East Brunswick Police Headquarters to administer a breath test.

At police headquarters, Officer Angermeier read defendant the standardized statement of the consequences for the failure to submit to a breath test required under N.J.S.A. 39:4-50.2(e). When asked if he would give samples of his breath, defendant only answered that he wanted to speak to an attorney. Officer Angermeier next read a prepared follow-up paragraph putting defendant on notice that an ambiguous answer would be deemed a refusal. Defendant answered, "everything is setup for you. I want to speak to an attorney." This was considered a refusal, and defendant was issued a summons for violation of N.J.S.A. 39:4-50.4a. In addition, defendant was issued summonses charging him with the following: driving under the influence in violation of N.J.S.A. 39:4-50; reckless driving in violation of N.J.S.A. 39:4-96; obstruction of traffic in violation of N.J.S.A. 39:4-67; parking on highways in violation of N.J.S.A. 39:4-136; driving without insurance in violation of N.J.S.A. 39:6b-2; and driving without documents in motor vehicle in violation of N.J.S.A. 39:3-29.

On June 23, 2005, the municipal court judge found defendant guilty of obstruction of traffic, driving under the influence, and refusal to take a breath test. All other charges were dismissed. Defendant appealed to the Law Division, seeking reversal of the convictions for driving under the influence and refusal to submit to a breath test.

Judge Bradley J. Ferencz heard the municipal appeal in the Law Division, Middlesex County, and entered an order dated January 18, 2006 memorializing his decision. Judge Ferencz reversed in part, and dismissed the charge of driving under the influence in violation of N.J.S.A. 39:4-50. He concluded that the destruction of the videotapes of the traffic stop and the failure of the police to respond to defendant's timely request for discovery "effectively deprived [defendant of] any meaningful chance of rebutting the police testimony[.]" However, the conviction for refusal in violation of N.J.S.A. 39:4-50.4a was remanded to the municipal court for a decision in accordance with State v. Cummings, 184 N.J. 84 (2005). Cummings, decided on June 23, 2005, the same day as the hearing in municipal court on this case, held that refusal must be proven beyond a reasonable doubt and not merely by a preponderance of the evidence. Id. at 98.

On remand, the then sitting municipal court judge heard the testimony of both Mr. Tinli and Officer Angermeier. The judge made specific findings that the testimony of Officer Angermeier was more credible and that the State had proved its case beyond a reasonable doubt. Again, defendant appealed.

On June 28, 2007, the reviewing Law Division judge, Judge Barbara C. Stolte, heard the de novo appeal. Giving due regard to the municipal court judge's credibility assessment of the witnesses, as required by State v. Johnson, 42 N.J. 146 (1964), Judge Stolte upheld both the conviction for refusal in violation of N.J.S.A. 39:4-50.4a and defendant's sentence as a third-time offender. Defendant's current appeal is from those determinations.

In his brief on this appeal defendant raises a single contention:

POINT I: THE COURT ERRED BY ABUSING ITS [sic] DISCRETION IN FINDING APPELLANT GUILTY ON THE CHARGE OF REFUSING TO SUBMIT TO A BREATH TEST PURSUANT TO N.J.S.A. 39:4-50.4(a) HAVING BASED SUCH DETERMINATION ON INDEPENDENT ANALYSIS OF FACT AND CASE LAW IN CONTRADICTION TO THE FINDINGS OF A PRIOR COURT, WHEN IT WAS COLLATERALLY ESTOPPED FROM MAKING SUCH INDEPENDENT FINDINGS.

Upon appellate review of municipal court decisions first appealed to the Law Division, we must decide whether there was sufficient credible evidence present in the record to uphold the findings of the Law Division. Johnson, supra, 42 N.J. at 162. In making this assessment, we "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting Johnson, supra, 42 N.J. at 161). Further, the "two-court rule" dictates that where two lower courts, here the municipal court and the trial court, make "concurrent findings of facts and credibility determinations[,]" the appellate panel should not seek to alter those findings. Id. at 474. The appellate panel should not disturb the result despite a belief that it would have reached a different conclusion than the trial court. Ibid. However, "if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Id. at 471 (quoting Johnson, supra, 42 N.J. at 162).

Defendant contends that the Law Division erred in affirming the municipal court's conviction for refusal to submit to a breath test pursuant to N.J.S.A. 39:4-50.4a because it reached its conclusions based on independent findings without the benefit of videotapes and in the face of contradictory testimony of two witnesses. We reject that contention.

First, defendant claims the Law Division improperly based its decision on an independent analysis of case law and facts regarding the status of the videotapes; hence, violated the doctrine of collateral estoppel. The judge's comments neither formed such analysis nor were they barred by collateral estoppel. The Law Division stated that despite the earlier controversy over the videotapes, those tapes should have no bearing on the decision in the de novo appeal. In line with the standard articulated in State v. Washington, 165 N.J. Super. 149, 155 (App. Div. 1979), the judge found that there were neither allegations nor a showing of bad faith on the part of the East Brunswick Police Department.

Moreover, the defense was able to cross-examine the officer at trial, and while "having tape would have been better," defendant did not suffer prejudice for lack of the tapes. In Washington, we held that where the negligent destruction of evidence "did not prejudice the defendant" and the State proved its case beyond a reasonable doubt, the absence of that evidence did not lead to an unjust result. Id. at 158. See also State v. Ruffin, 371 N.J. Super. 371, 392 (App. Div. 2004) (observing that the "court's finding of bad faith is crucial" where the defense seeks to show that the exclusion of potentially exculpatory evidence resulted in prejudice to the defendant); State v. Serret, 198 N.J. Super. 21, 27 (App. Div. 1984), certif. denied, 101 N.J. 217 (1985) (finding that even though the "absence of evidence may have made . . . cross-examination . . . more difficult," this difficulty did "not necessarily amount to a denial of confrontation").

In addition, the judge determined that defendant's conviction for refusal in violation of N.J.S.A. 39:4-50.4a was proved beyond a reasonable doubt without the videotapes. That determination does not implicate the doctrine of collateral estoppel. Collateral estoppel bars reconsideration of an issue of law or fact that has been previously determined, even though the second action may be different from the first. State v. Gonzalez, 75 N.J. 181, 186 (1977); Kram v. Kram, 94 N.J. Super. 539, 551 (Ch. Div. 1967), rev'd on other grounds, 98 N.J. Super. 274 (App. Div. 1967), aff'd, 52 N.J. 545 (1968). Collateral estoppel arises when:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (quoting Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005)).]

The doctrine of collateral estoppel did not preclude the judge from considering whether a defendant found guilty by a preponderance of the evidence could be found guilty beyond a reasonable doubt. That issue simply was not decided in the prior proceeding. The conviction for violating N.J.S.A. 39:4-50.4a was remanded, and the Law Division judge only then undertook to determine whether the State had satisfied its burden under the more onerous standard of proof beyond a reasonable doubt.

The judge who heard the original appeal from the municipal court found that the destruction of the videotapes "effectively deprived [defendant of] any meaningful chance of rebutting the police testimony[,]" on the substantive offense of driving under the influence of alcohol. Consequently, he dismissed that charge with prejudice. The judge did not similarly rule on the charge of refusal to take a breath test. Instead, he remanded defendant's conviction on that charge to be decided by the municipal court judge, in accordance with the new standard announced in Cummings. In Cummings, supra, the Supreme Court specifically decided to apply "pipeline retroactivity" to the new rule, allowing application of the rule "in future cases, and in any case still on direct appeal[.]" 184 N.J. at 99.

The critical question, as already indicated, is whether there is sufficient credible evidence present in the record to uphold the conviction for refusal under the higher standard. Clearly, there was. In prosecutions for violation of the refusal statute, the following must be shown:

Police officers . . . must provide defendants the standardized statement of the consequences for the failure to submit to a breathalyzer test required under N.J.S.A. 39:4-50.2(e); the police officer must . . . have had "probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this state while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit producing drug or marijuana[,]" N.J.S.A. 39:4-50a; the police officer must . . . demonstrate whether the defendant was placed under arrest; ibid. and the police officer must still prove that the defendant "refused to submit to the breathalyzer test upon request of the officer." Ibid.

[Cummings, supra, 184 N.J. at 96.]

Both the Municipal Court and the Law Division have found that the State met all of the above criteria beyond a reasonable doubt. We are convinced there was sufficient credible evidence to support this conclusion, giving deference to factual and credibility findings of the municipal judge.

Officer Angermeier was found to be a credible witness. The court noted that defendant was read "the standardized statement of the consequences for the failure to submit to a breathalyzer test required under N.J.S.A. 39:4-50.2(e)[.]" Cummings, supra, 184 N.J. at 96. On its review, the Law Division explained on the record that the testimony and evidence at retrial "before the Municipal Court . . . persuaded it to 'accede' to the Municipal Court's credibility determinations." Locurto, supra, 157 N.J. at 474. Therefore, under the two-court rule, we are compelled to align with those findings absent "a very obvious and exceptional showing of error." Ibid. We find no such error here.

There was no serious dispute as to whether there was probable cause for the arrest of defendant for driving under the influence. Under the circumstances described by Officer Angermeier, the officers had probable cause to believe that defendant had been operating his car under the influence and had fallen asleep at the wheel. The officer's observations and defendant's failure of three field sobriety tests provided ample probable cause for defendant's arrest. The testimony of Officer Angermeier was that defendant smelled of alcohol, he was slurring his speech, and he had bloodshot watery eyes.

Even though Tinli's car was not moving when the officers encountered him, "engaging the engine in a moving vehicle is not required for conviction" for driving under the influence and in turn probable cause of such. State v. Di Francisco, 232 N.J. Super. 317, 322 (Law Div. 1988) (quoting State v. Stiene, 203 N.J. Super. 275, 279 (App. Div.), certif. denied, 102 N.J. 375 (1985)). See, e.g., State v. Mulcahy, 107 N.J. 467, 480 (1987), where the defendant's car was found parked on a public sidewalk and defendant was "plainly drunk" within the vehicle. The Court held that "probable cause to believe a person has been operating a vehicle is sufficient to require a submission to a breathalyzer test" where a person "properly suspected of being under the influence" has operated, is presently operating, or "is in actual physical control of a vehicle and has started to place the car's machinery in operation, intending to drive it on a public way." Id. at 480, 481.

Similarly, in State v. Wright, 107 N.J. 488 (1987), the Court held that a defendant could be convicted under N.J.S.A. 39:4-50.4a for refusing to submit to a breath test without proof that he was actually operating a motor vehicle at the time of his arrest. The Court explained:

To secure a conviction under N.J.S.A. 39:4-50.4a, the State must prove only that (1) the arresting officer had probable cause to believe that defendant had been operating a vehicle while under the influence of alcohol; (2) defendant was arrested for driving while intoxicated; and (3) defendant refused to submit to a breathalyzer test.

[Id. at 490.]

The defendant in Wright was sitting in the driver's seat with the motor running; he was alone in the car that was parked in the right lane of the highway. Ibid.

Here, the officers found Tinli's car parked but running in the middle of the road, and though defendant's attempt to operate the car was unsuccessful, he was nonetheless operating his car. The evidence was plainly sufficient to warrant an arrest for purposes of submission to the breath test required by N.J.S.A. 39:4-50.4a.

As to defendant's refusal to submit to the breath test, Officer Angermeier testified that he read the standardized statement to defendant, as required by N.J.S.A. 39:4-50.2(e), as well as the follow-up paragraph post initial refusal. The municipal court judge found "beyond any reasonable doubt that on the night in question Mr. Tinli was read what was marked S-1, the standard statement given by the officer to the defendant. The defendant did not say he would take the test. He said he wanted to speak to an attorney."

It is well settled that a defendant may not refuse to take the breath test. State v. Spell, 196 N.J. 537, 538 (2008). "[A]nything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the breathalyzer test constitutes a refusal to do so." State v. Widmaier, 157 N.J. 475, 488 (1999) (quoting State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div.), certif. denied, 126 N.J. 323 (1991)). In Widmaier, the Court confirmed that there is no "Fifth Amendment right to consult with an attorney before taking the test" or "to have an attorney present when the test is performed[,]" and it explained that to indulge such a request for counsel would constitute a delay that could affect the results of a breath test. Widmaier, supra, 157 N.J. at 487, 498. Defendant's request for an attorney was not an "unequivocal yes" and therefore constituted a refusal.

Finally, we note that defendant was sentenced as a third-time offender. That was appropriate because he was convicted of driving under the influence on two prior occasions, and this was his third offense, for which the statute mandates revocation of the right to operate a motor vehicle for ten years. N.J.S.A. 39:4-50.4a(a). See State v. Wilhalme, 206 N.J. Super. 359, 364 (App. Div. 1985), certif. denied, 104 N.J. 398 (1986) (where defendant was convicted only of refusal to take a breath test, defendant was sentenced as a second-time offender because of a prior conviction of driving under the influence); State v. Grant, 196 N.J. Super. 470, 479, 480 (App. Div. 1984) (holding that N.J.S.A. 39:4-50.4a does not require defendant be previously convicted of drunk driving and then "subsequently be found guilty of the same offense along with refusing to submit to a breathalyzer test" in order to be sentenced as a second offender). We find no reason to disturb the conviction or the sentence imposed by the Law Division.

Affirmed.

In all prior proceedings and pleadings, rather than citing to the current statute for refusal to take a breath test, N.J.S.A. 39:4-50.4a, its predecessor, N.J.S.A. 39:4-50.4, has been cited. The repeal of N.J.S.A. 39:4-50.4 was effective January 12, 1982; therefore, the applicable statute is N.J.S.A. 39:4-50.4a. This mistake is not brought up on appeal and does not affect the outcome of the case. The current statute, N.J.S.A. 39:4-50.4a will be the referenced statute henceforth.

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A-0484-07T4

October 6, 2009