STATE OF NEW JERSEY v. BRIAN MANGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0508-08T40508-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN MANGAN,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 9, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-097.

Greggory M. Marootian, attorney for appellant.

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Brian Mangan, appeals from his convictions after a trial de novo in the Law Division, see R. 3:23-8(a), of (1) driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), (2) possession of under fifty grams of marijuana, N.J.S.A. 2C:35-10a(4), and (3) possession of a controlled dangerous substance (marijuana) while operating a motor vehicle, N.J.S.A. 39:4-49.1. Because this was defendant's third DWI conviction, he was sentenced to a fine of $1005, $33 court costs, $50 VCCA, $200 DWI surcharge, $75 SNSF, a ten-year driver's license suspension, 180 days in the county jail, and the requirement to install an ignition interlock device upon restoration of his driving privileges. After merging the conviction for violation of N.J.S.A. 2C:35-10a(4) with the conviction for N.J.S.A. 39:4-49.1, defendant was sentenced for the latter offense to a fine of $105, $33 in court costs, and a two-year driver's license suspension, consecutive to that imposed on the DWI.

On appeal to this court, defendant argues:

POINT I

THE STATE DID NOT PROVE, BEYOND A REASONABLE DOUBT, THAT MANGAN WAS UNDER THE INFLUENCE OF ALCOHOL. THE RESULT BELOW WAS NOT REASONABLY REACHED.

POINT II

THE LABORATORY CERTIFICATE SHOULD NOT HAVE BEEN ADMITTED WITHOUT THE TESTIMONY OF THE LABORATORY TECHNICIAN, BECAUSE THE DEFENSE LODGED A PROPER AND TIMELY OBJECTION PURSUANT TO N.J.S. 2C:35-19(C).

We reject these arguments and affirm.

Just past midnight on May 3, 2007, Patrolman Thomas Gorman of the Denville Township Police Department was on patrol in a marked police vehicle. He observed defendant make a left turn onto Route 46 at a speed of about thirty-five miles per hour, which Gorman characterized as "pretty fast for a turn . . . so much so that he came within inches of hitting the curb, that was part of the . . . lane going towards Route 80." Gorman followed defendant, who was then traveling in the right lane of Route 80, which at that point is a four-lane highway. He observed defendant's vehicle "weaving in and out of the right lane, into the emergency lane, back, the entire stretch of the way." When defendant exited the highway, "he was hugging the guardrail so closely that he was within an inch, maybe inch and a half of taking off his entire side panel, and followed that guardrail all the way down to Green Pond Road."

At that point, Gorman determined that defendant was driving unsafely and erratically. He activated his overhead lights to initiate a stop. However, although defendant slowed down, he continued driving for about another half mile, proceeding through three traffic lights, until he finally pulled over.

Gorman approached defendant and requested his driving credentials. Defendant fumbled through them. Gorman detected an odor of alcohol emanating from the car. Defendant's eyes were bloodshot and he was slurring his speech. When Gorman asked defendant whether he had been drinking, defendant said he "had two beers" and acknowledged that he felt "buzzed."

Gorman asked defendant to get out of his vehicle, and he subjected defendant to a series of roadside sobriety tests. Defendant's performance was substandard, providing a further indication of intoxication.

Based upon the manner in which defendant was driving, his demeanor, and his performance of the sobriety tests, Gorman placed defendant under arrest for DWI and transported him to the stationhouse. Although defendant submitted to a breath test analysis, the State later conceded that the required twenty minute observation period for use of the Alcotest device, see State v. Chun, 194 N.J. 54, 79, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), might not have been satisfied, as a result of which the State did not offer in evidence the Alcotest readings and proceeded to try defendant only based upon observational evidence.

When defendant was searched at the police station, two zip-lock bags of suspected marijuana were seized from his person. Testing at the New Jersey State Police Laboratory confirmed that the substance was marijuana. Sometime in June 2007, the prosecutor transmitted to defendant's attorney a copy of the laboratory report and all required underlying documentation, and a notice that the State intended to introduce the laboratory certificate in evidence. See N.J.S.A. 2C:35-19. Defendant's attorney did not object. About ten months later, when defendant's present counsel filed a substitution of attorney on April 24, 2008, present counsel also filed a purported objection to admissibility of the laboratory certificate. Trial was conducted in the Denville Municipal Court on May 30, 2008. The municipal judge found that the belated objection was grossly non-compliant with the time limitations provided in the statute and no good cause was demonstrated for relaxing the deadline. Accordingly, over defendant's objection, the laboratory certificate was admitted in evidence.

Defendant did not testify at trial. The municipal judge found Gorman's testimony "credible and believable." Based upon Gorman's testimony regarding his observations of defendant, the municipal judge found that the State proved the DWI offense beyond a reasonable doubt. Based upon the laboratory certificate, and the testimony establishing that the marijuana was seized from defendant's person, the municipal judge also found defendant guilty of the two marijuana offenses. The municipal judge imposed sentence as we described at the outset of this opinion.

In the Law Division, Judge Manahan tried the case de novo based upon the municipal court record. He gave due, though not controlling, deference to the municipal judge's credibility findings. Then, making his own independent findings of fact and conclusions, Judge Manahan found that the State proved DWI beyond a reasonable doubt based upon Gorman's observations of defendant. With respect to the marijuana offenses, Judge Manahan also rejected defendant's purported objection to introduction in evidence of the laboratory certificate because it was untimely and no good cause was shown to relax the statutory time limit. He also again found defendant guilty of the marijuana offenses. Judge Manahan imposed the same sentence that had been imposed by the municipal judge. This appeal followed.

On de novo review, Judge Manahan applied the correct standard by making his own findings of fact based on the municipal court record, giving due, though not controlling, regard to the municipal judge's credibility findings. See State v. Locurto, 157 N.J. 463, 473-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). Defendant's argument before us regarding the DWI offenses is substantially the same as those he made in the municipal court and the Law Division, namely that Gorman's testimony was incredible and provided an insufficient basis to prove defendant's guilt beyond a reasonable doubt.

We first note that for DWI purposes, the phrase "under the influence of intoxicating liquor" prescribes "a general condition, short of intoxication," as a result of which the driver of a motor vehicle is "said to be so affected in judgment or control as to make it improper for him [or her] to drive on the highways." Johnson, supra, 42 N.J. at 165. The phrase embraces not only "the well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors and which tends to deprive him [or her] of that clearness of intellect and control of himself [or herself] which he [or she] would otherwise possess." Ibid. (quoting State v. Rodgers, 91 N.J.L. 212, 215 (E. & A. 1917)).

As a reviewing court, we defer to Judge Manahan's factual findings, including those regarding credibility, as long as those findings are supported by substantial credible evidence in the record. It is not our function to supplant such evidentially-supported findings made by a trial court with independent findings of our own. We are satisfied from our review of the record that Judge Manahan's findings are amply supported by sufficient credible evidence in the record as a whole, and we have no occasion to interfere with them.

With regard to the marijuana offenses, it is undisputed that the laboratory certificate and all required documentation was promptly submitted to defendant, who was then represented by counsel, in the month following defendant's arrest. "An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection and the grounds for the objection within 10 days upon receiving the adversary's notice of intent to proffer the certificate." N.J.S.A. 2C:35-19c. "A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate . . . [which] shall not be relaxed except upon a showing of good cause." Ibid.

This statute provides a procedural framework for admitting in evidence uncontested laboratory certificates, without depriving a defendant of his or her right of confrontation. State v. Simbara, 175 N.J. 37, 43, 46-49 (2002). A defendant who fails to timely object in the manner provided in the statute will be deemed to have "waive[d] any objections to the admission of a laboratory certificate in a given case." Id. at 48. As the trial court found, defendant was represented by competent and experienced counsel when the laboratory certificate was served on him, with the requisite notice, in June 2007. No good cause was demonstrated for relaxing the timeframe by a period of about ten months.

Defendant does not dispute that his prior attorney waived the right to object. He argues, however, that upon filing a substitution of attorney, his new attorney then became the "opposing party" mentioned in the statute, and that the ten-day clock should start running anew on that date. Defendant's argument is contrary to the clear terms of the statute. An attorney for a party is not the party; the defendant is the "opposing party" to the State. Defendant's suggested interpretation would eviscerate the purpose of the statute by rendering meaningless the procedural framework that Legislature has carefully crafted.

Affirmed.

(continued)

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A-0508-08T4

November 25, 2009