STATE OF NEW JERSEY v. MICHAEL PIERRO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1598-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL PIERRO,

Defendant-Appellant.

______________________________

March 21, 2011

Argued February 28, 2011 - Decided

Before Judges Rodr guez and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

Municipal Appeal No. 4847.

John Vincent Saykanic argued the cause

for appellant.

Steven E. Braun, Chief Assistant Prosecutor,

argued the cause for respondent (Camelia

M. Valdes, Passaic County Prosecutor,

attorney; Mr. Braun, of counsel and on the

brief).

PER CURIAM

Following a trial in the municipal court and a trial de novo in the Law Division, defendant Michael Pierro was convicted of driving while intoxicated, N.J.S.A. 39:4-50, and sentenced as a third-time offender to pay a $1006 fine, $33 in court costs, a $50 VCCB assessment, a $200 DWI surcharge, and a $75 SNSF assessment. In addition, the judge revoked defendant's driver's license for ten years, required him to serve 180 days in the county jail, ninety of which may be served in an inpatient-program, and ordered him to spend forty-eight hours at the Intoxicated Driver's Resource Center. Defendant appeals, claiming a lack of evidential support for the conviction, a denial of his right to a speedy trial, a denial of due process based on the police's failure to properly videotape his field sobriety tests and ineffective assistance of trial counsel. For the reasons stated below, we affirm.

On the evening of July 6, 2007, Catherine Walstrum was driving in West Milford and heard the drivers of oncoming cars beeping their horns. Using her side and rearview mirrors, Walstrum saw a car behind her that was driven by defendant moving over the line and into the lane for cars traveling toward them. After seeing the erratically-driven car move from left to right, Walstrum called 911 and gave the operator the car's license plate number, which she could see when she and defendant were stopped at a traffic light. When the light changed, Walstrum saw defendant's car swerve, travel on both sides of the road and move close to the curb.

Defendant turned off the road. Walstrum turned back to follow. When she reached defendant, his car was parked at a house. Walstrum flagged down a police car driven by Detective Frank Elia, who had responded to a dispatch that followed Walstrum's 911 call.

When Elia saw defendant's car, its door was open and defendant was getting out. Elia approached and spoke to defendant. Defendant leaned on the car while he introduced himself and shook the detective's hand. Elia detected the odor of alcohol on defendant's breath. His eyes were bloodshot and his speech was slurred. Elia decided to conduct field sobriety tests. Because the road surface was unsuitably rough directly ahead of the police car, Elia had defendant do the tests to one side of the car. However, Elia forgot to realign the camera so it would capture defendant performing the tests. Consequently, the video portion of the tape, for the most part, depicts irrelevant images.

According to Elia, defendant put his foot down three times during the one-legged stand. Additionally, while listening to the instructions on how to perform the walk-and-turn test, defendant was unable to keep his balance and swayed back and forth. In performing the test he did not remove his hands from his pockets as directed, could not place the heel of one foot in front of the other without losing his balance and stopping to steady himself and did not turn as directed or without losing his balance.

A breathalyzer test was done at headquarters, but the State did not introduce the evidence due to a flaw in the test that was discovered prior to defendant's trial. Consequently, defendant's conviction is based on Walstrum's testimony about defendant's driving and Elia's observations.

Although defendant told Elia that he did not have any physical problems that would prevent him from performing the field sobriety tests, at trial defendant presented testimony from an orthopedic surgeon, Dr. Arthur Tiger, who evaluated him in December 2008. Dr. Tiger testified that defendant had fractured his hip prior to this incident and had problems with his back and right leg as a consequence. Dr. Tiger also noted arthritic changes in defendant's lumbar spine. In his opinion, defendant's condition would have caused him to have significant problems that would prevent him from passing the field sobriety tests.

This court reviews the judgment of the Law Division. State v. Johnson, 42 N.J. 146, 157 (1964). To address defendant's challenge to the adequacy of the evidence, we consider the "proofs as a whole" and determine if "the findings made could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. If "this criterion" is met we "should not disturb the result." Ibid.

In this case, the Law Division judge determined the testimony given by Elia and Walstrum established defendant's guilt beyond a reasonable doubt. With respect to Dr. Tiger's testimony, the judge did not find it "worthwhile" because Tiger had not explained how defendant's conditions impacted on his ability to perform the tests. The judge also noted that defendant himself had told Elia that he did not have a condition that would affect his performance.

Considering the proofs as a whole, it is apparent that the judge's findings were "reasonably . . . reached on sufficient credible evidence present in the record." Ibid. We certainly cannot conclude "that the finding [of guilt] is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction" by this court. Ibid. Accordingly, we reject defendant's claim that reversal is required because of reasonable doubt about his guilt.

We turn to consider defendant's speedy-trial claim. The Sixth Amendment of the United States Constitution affords a defendant the right to a speedy trial on criminal charges; through the Due Process Clause of the Fourteenth Amendment, that right is applicable in state prosecutions. Klopfer v. North Carolina, 386 U.S. 213, 222, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7 (1967); see State v. Szima, 70 N.J. 196, 200-01, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976) (discussing the speedy-trial right pursuant to Article I, paragraph 10 of the New Jersey Constitution and the federal constitution as construed in Klopfer). Our courts recognize that the right applies in prosecutions for driving while under the influence. State v. Hulsizer, 42 N.J. Super. 224, 228 (App. Div. 1956).

The speedy-trial right protects a defendant's interest in minimizing "pretrial incarceration," pretrial "anxiety and concern" due to a pending accusation and delay that impairs ability to present a defense. Barker v. Wingo, 407 U.S. 514, 532-33, 92 S. Ct. 2182, 2193, 33 L. Ed. 2d 101, 118 (1972). Alleged violations of the speedy-trial right are assessed by balancing four factors set forth in Barker. Id. at 533, 92

S. Ct. at 2193, 33 L. Ed. 2d at 118-19; State v. Townsend, 186 N.J. 473, 487 (2006). Barker "requires the court to consider: (1) the length of the delay, (2) the reasons for the delay, (3) whether and how defendant asserted his speedy trial right, and (4) the prejudice to defendant caused by the delay." Townsend, supra, 186 N.J. at 487.

There is no question that the proceedings in municipal court were protracted. There are transcripts of court appearances on twenty-four days between August 16, 2007, and August 13, 2009, the date on which the municipal court rendered its decision and sentenced defendant.

Throughout, defendant never made a demand for a speedy trial. Defense counsel made requests related to defense experts that contributed to the delay during proceedings held on July 6, October 4, October 18, 2007, and December 11, 2008. It was on December 11, 2008, that defense counsel first mentioned he intended to have his client seen by an orthopedist but he had not yet done so. In addition, several of the State's requests for additional time were partially attributable to the defense because the prosecutor was asking for time to address reports from defense experts that were served right before or during court proceedings held on September 20, 2007, and May 1 and November 7, 2008. In the end, the defense did not submit Dr. Tiger's final report until shortly before a proceeding held on January 22, 2009, and trial commenced on April 16, 2009. Testimony was taken on April 16, May 28, and June 18 and 25, 2009. Summations were given on July 2, 2009.

After considering the Barker factors and the foregoing procedural history, which indicates defendant's contribution to and acquiescence in the delay, we conclude the arguments defendant presents to establish a speedy-trial violation lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant's due-process claim based on the quality of the videotape of his sobriety tests requires no discussion beyond reference to this court's decision in State v. Gordon, 261 N.J. Super. 462, 464-66 (App. Div. 1993), where we held that failure to videotape what a witness observes is not a due-process violation even where the evidence is relevant to a prosecution for driving while intoxicated.

Finally, defendant contends that his trial counsel was ineffective because he did not present the testimony of a second expert who was present at trial and prepared to testify. The issue presented requires consideration of matters outside the record, and if defendant wishes to pursue the claim he should do so on application for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).