STATE OF NEW JERSEY v. KARIM GHODBANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0875-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KARIM GHODBANE,

Defendant-Appellant.

________________________________________________________________

July 12, 2011

Submitted June 1, 2011 - Decided

Before Judges Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-097.

Advokat & Rosenberg, attorneys for appellant (Jeffrey M. Advokat, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

After a trial de novo in the Law Division, defendant Karim Ghodbane appeals his September 13, 2010 conviction for driving while intoxicated, N.J.S.A. 39:4-50. As a second offender, he was sentenced to a two-year driver s license suspension, forty-eight hours in the Intoxicated Driver Resource Center, thirty days of community service, installation of an interlock device on his car ignition for one year, and the minimum mandatory fines and penalties. Defendant argues that the State did not prove operation or intoxication and also deprived him of his constitutional right to a speedy trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On March 31, 2010, in Municipal Court, Morristown Police Officer Anthony O'Brien testified to the following facts. On December 18, 2008, at approximately 1:00 a.m. he was patrolling the parking lot behind the Grasshopper Bar, which closes by 2:00 a.m. He saw defendant in the driver's seat of his car, sitting still and "looking straight up with [his] mouth open." The car's engine was running with the headlights on. Defendant was sleeping until Officer O'Brien tapped on the window to make sure defendant was all right.

After defendant woke up and opened the door, O'Brien "noticed that [defendant] had vomited on himself." O'Brien then asked [defendant] what he was doing, where he was going, [and] what his intentions were for the evening." After asking these questions, O'Brien "detected an odor of alcoholic beverage flavorings." O'Brien then asked defendant if "he was okay." Defendant replied that he was and that "[h]e was just going home." O'Brien asked defendant "if he had been drinking or if he was waiting for someone or just warming up his car to remain sober, to try to get sobered up before he left." Defendant said that he "was fine," had only drank two beers and was going to drive home. Defendant told O'Brien that he lived "right over there." O'Brien then asked defendant to step out of his car and to provide his documentation before taking him to an empty parking space to conduct field sobriety tests.

Although polite and cooperative, defendant was "slow and fumbling" in retrieving his documents, swayed and was unable to perform the road-side sobriety tests administered by O Brien. To perform the "one-leg stand test," O'Brien instructed defendant to raise either leg six inches off the ground and count, beginning at 1001, until instructed to stop. Instead, after his fifth attempt, defendant was only able to raise one foot and quickly count from one to five before placing the foot back on the ground. Next, O'Brien asked defendant to perform the "walk and turn test." O'Brien demonstrated that defendant was to take nine steps, heel to toe in a straight line before turning. Defendant was unable to perform the test, stepping off the line at steps seven and eight and performing the turns incorrectly. Believing any other testing would be unsafe due to defendant's intoxicated condition, O'Brien then placed defendant under arrest and brought him to the police station.

While being fingerprinted, defendant told O'Brien, "I'm not a criminal. I just want to go home to my house on Hill Street. You should be spending your time on real criminals."

Morristown Police Officer Deanna Dietrich, a certified Alcotest operator and thirteen-year veteran of the force, testified that she observed defendant for twenty minutes at the police station before administering the breath test. She then administered the test twice following approved protocol, and the test result was .11% blood alcohol level (BAC). The Alcotest supporting documents were introduced into evidence without objection.

After the two police officers testified, defense counsel introduced a defense report, stating to the municipal court judge:

Over a year -- the case has been pending since it happened. Back in March of '09 began a series of discussions with the prosecutor, tried to work it out, et cetera, et cetera. I provided [the report] to him, and I have another copy here, March 9th, '09 over a year ago, reciprocal discovery, which was my expert report. And part of our negotiations, et cetera, et cetera.

Obviously, we never were able to resolve the case. But as I recall, and I say it like that, because it really was a long time ago, but the understanding [was that the report] could be part of the evidence for you to use or not use. That's up to you. But I would like to introduce this report with that understanding.

The State had no objection to the admission into evidence of defense expert Herbert Leckie's report, which challenged the accuracy of the Alcotest reading.

The municipal court judge found Officer O'Brien to be "a very credible witness" who "did not guild [sic] the lily in any respect." Judge David H. Ironson commented on the municipal court judge's finding that O Brien was extremely credible and accepted that credibility determination when adjudicating defendant guilty after a trial de novo in the Superior Court on the Municipal Court record.

On appeal defendant argues the following issues:

POINT I:

THERE WAS NO INTENT TO DRIVE

(IE: OPERATION)

POINT II:

THE BAC READING IS NOT VALID

POINT III:

'OBSERVATION EVIDENCE' ALONE IS

INSUFFICIENT

POINT IV:

LACK OF A SPEEDY TRIAL

I

In Point I of his brief, defendant argues that the State's proofs were insufficient to prove his intent to drive his car while still intoxicated. As we stated in State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005), "[c]learly, the State has the burden of proving beyond a reasonable doubt that a defendant was driving while intoxicated." N.J.S.A. 39:4-50(a) prohibits a motorist from operating a vehicle while under the "influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or . . . with a blood alcohol concentration of 0.08% or more." The term "operates," as used in N.J.S.A. 39:4-50(a), has been broadly interpreted. State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988); State v. Mulcahy, 107 N.J. 467, 478 (1987); State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993). "Actual operation is not required to satisfy the element." Ebert, supra, 377 N.J. Super. at 10. "'Operation may be proved by any direct or circumstantial evidence -- as long as it is competent and meets the requisite standards of proof.'" Ibid. (quoting State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992)). The Court has explained that when an individual is sitting "in the driver's seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation[.]" Mulcahy, supra, 107 N.J. at 479.

The function of the Law Division on an appeal from the Municipal Court is to determine the case completely anew on the record made before the municipal trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson,42 N.J. 146, 157 (1964); State v. Cerefice,335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).

Our function as a reviewing court is governed by the "substantial evidence" rule, namely, it is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162.

[T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[State v. Locurto, 157 N.J. 463, 474 (1999).]

Our review of the law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant relies on State v. Daly, 64 N.J. 122 (1973) in arguing that the State's proofs were insufficient to prove his intent to drive while intoxicated. Defendant argues that if O Brien had not awakened him, defendant would have slept until he regained his sobriety. However, as defendant acknowledges, the defendant in Daly was asleep in a car parked in a tavern lot more than an hour after closing time with the headlights off and the seat reclined. Daly told the officer that the engine was running to keep him warm and that he had no intention of driving until he sobered up. Here, defendant had his seat-back upright, the headlights were on, the bar was still open, and he denied that he had the engine running to keep warm while he sobered up. Rather, defendant said he was fine, had consumed only two beers and was going to drive home, a short distance away. The fact that defendant had apparently both vomited and fallen asleep unknowingly before being approached by O'Brien does not raise a reasonable doubt as to his intention to operate the car at the time of his arrest.

II

In Point II of his brief, defendant argues that the BAC reading is invalid based on defense expert Herbert Leckie's report. Leckie claims in his report that defendant's cell phone may have interfered with the BAC reading by producing radio frequency interference (RFI). The defense produced no evidence at trial that defendant had a cell phone in the vicinity of the Alcotest equipment. Moreover, the Court has found, based on extensive findings of a Special Master, that the Alcotest equipment is not vulnerable to such interference. State v. Chun, 194 N.J. 54, 89, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

In Chun, the Court held that the State must prove: (1) the operator was qualified to perform the test; (2) the Alcotest functioned properly on the date the test was administered; and (3) the operator properly performed the test. Ibid. No challenge to Officer Dietrich s certification or her use of the equipment was made at trial except through the defense expert s report. Defense counsel did not object to the admission of the supporting documents demonstrating that the Alcotest functioned properly on the arrest date. Dietrich testified she observed defendant for twenty minutes to ensure he did not put anything in his mouth or regurgitate. She testified that she performed two breath tests, putting a new mouthpiece on the instrument each time. She said she responded to all of the prompts that appeared on the Alcotest screen. Defense counsel did not cross-examine Dietrich.

The Alcohol Influence Report reflects that the tests were properly given three minutes apart and that control tests were performed a minute before the first test and a minute after the second test. The two BAC readings of .11% and .12% were within a sufficiently narrow range to demonstrate that the instrument was working properly. The municipal court judge properly found that the Alcotest results were admissible, thereby finding that defendant s expert report did not raise a reasonable doubt as to the validity of the Alcotest. We agree with this conclusion.

III

In Point III of his brief, defendant argues that the observations of Officer O Brien were insufficient in themselves to prove defendant was intoxicated. Although O Brien s observations as to defendant s intoxication were strong, given the validity of the Alcotest BAC reading of .11%, a per se violation of the statute, we do not address this argument. N.J.S.A. 39:4-50(a).

IV

In assessing defendant's claim in the final point of his brief, arguing that his due process right to a speedy trial was violated, we must look at four factors: (1) the length of the delay encountered; (2) the reason for that delay; (3) whether defendant asserted his right to a speedy trial; and (4) whether the delay resulted in any prejudice to defendant. State v. Szima, 70 N.J. 196, 201, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976); State v. Tsetsekas, 411 N.J. Super. 1, 8-9 (App. Div. 2009) (explaining that these factors apply to municipal court drunk driving prosecutions); State v. Gaikwad, 349 N.J. Super. 62, 88 (App. Div. 2002). In applying the four-part test, "[n]o single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Tsetsekas, supra, 411 N.J. Super.at 10 (citing Barker v. Wingo, 407 U.S. 514, 533, 92 S. Ct. 2182, 2193, 33 L. Ed. 2d 101, 118 (1972)). "Rather, the factors are interrelated," and a fact-sensitive analysis is necessary so that each factor is "considered in light of the relevant circumstances of each particular case." Ibid.

Although municipal court judges "should attempt to dispose of DWI cases within sixty days," for due process considerations, "[t]here is no set length of time that fixes the point at which delay is excessive." Tsetsekas, supra, 411 N.J. Super. at 11 (citation omitted). Defendant was arrested on December 18, 2008, and the trial in Municipal Court occurred on March 31, 2010, more than fifteen months later and well beyond the suggested sixty-day timeframe.

No ready explanation for this unfortunate delay is apparent from the record. Defendant filed a motion to dismiss the case, and time passed while defense counsel tried to work it out with the State. No delay was attributed to the State by defense counsel nor did defendant raise the speedy trial issue before the municipal court judge. See Tsetsekas, supra, 411 N.J. Super. at 13 (explaining that a defendant must assert his right to a speedy trial when timeliness becomes an issue).

A defendant must show "actual prejudice, not possible or presumed prejudice," to support a due process claim. State v. Alexander, 310 N.J. Super. 348, 355 (App. Div.) (quoting State v. Aguirre, 287 N.J. Super. 128, 133 (App. Div.), certif. denied, 144 N.J. 585 (1996)), certif. denied, 156 N.J. 408 (1998). In contrast to a due process claim, "proof of actual trial prejudice is not 'a necessary condition precedent to the vindication of the speedy trial guarantee.'" Tsetsekas, supra, 411 N.J. Super. at 13-14 (quoting State v. Merlino, 153 N.J. Super. 12, 15-16 (App. Div. 1977)). Although the delay may have caused a defendant

no prejudice affecting [his] liberty interest or his ability to defend on the merits[] . . . significant prejudice may also arise when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances.

[Id. at 13 (citations and internal quotation marks omitted).]

Defendant had use of his driver s license between the arrest and trial. Judge Ironson noted that he did not

trivialize in any way the uncertainty the [defendant] may have suffered, perhaps emotional anxiety and the consumption of time and money, however [I] place[] a greater weight on the fact that defendant s fundamental liberty interests were not compromised in this matter. He continued to drive and his defense was not hindered, he was not incarcerated.

Judge Ironson s thorough findings were well-supported by the record. "'[I]n the administration of justice[,] dismissal must be a recourse of last resort.'" Id.at 14 (quoting State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999)). Although the delay was significant, the State did not cause it, and defendant neither complained of the delay to the municipal court judge nor suffered any actual prejudice.

Affirmed.