STATE OF NEW JERSEY v. JULIANNE DeGILIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4061-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIANNE DeGILIO,

Defendant-Appellant.

_______________________________

April 13, 2011

 

Argued March 2, 2011 - Decided

 

Before Judges Lihotz and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 96-2009.

 

Julianne DeGilio, appellant, argued the cause pro se.

 

Brian D. Gillet, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Following a trial in the South Brunswick Township Municipal Court, defendant was found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, refusing to submit a breath sample, N.J.S.A. 39:4-50.2, and improper use of high beams, N.J.S.A. 39:3-60. Defendant appealed her conviction to the Law Division. The court affirmed, following a de novo review, R. 3:23-8(a), and imposed the same sentence as the municipal court. Defendant appeals from that conviction raising these points for our review1:

POINT I

 

DEFENDANT'S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE PROSECUTION SUPPRESSED EVIDENCE AND DISRUPTED DEFENDANT'S BY THWARTING, RESISTING, DETERRING, INTIMIDATING, INTERFERING, AND ULTIMATELY DEPRIVING DEFENDANT OF THE BENEFIT AND ENJOYMENT OF HER DUE PROCESS RIGHT TO MEANINGFUL AND EXCULPATORY DISCOVERY, THEN THE SUBSEQUENT ALTERATION, TAMPERING, EDITING, AND ABRIDGING OF VIDEO EVIDENCE, ORIGINALLY WITHHELD FOR FIVE MONTHS PREVENTING DEFENDANT FROM PROPERLY PREPARING HER CASE, SUBMITTED A COUNTERFEIT TAPE AT THE EVE OF TRIAL DEPRIVING DEFENDANT OF FULL, COMPLETE, AND GENUINE EVIDENCE OF INTEGRITY AND OPPORTUNITY TO FAIRLY DEFEND HERSELF AT TRIAL.

 

 

 

 

POINT II

 

THE PROSECUTION'S LACK OF COOPERATION AND FAILURE TO COMPLY WITH MUNICIPAL COURT RULES OF DISCOVERY 7:7-7 RENDERED DEFENDANT'S COUNSEL INEFFECTIVE THROUGH NO FAULT OF HIS OWN.

 

POINT III

 

THE OFFICER'S PRE-DETERMINED MIND DOES NOT CONSTITUTE PROBABL[E] CAUSE TO PULL DEFENDANT OVER.

 

POINT IV

 

DEFENDANT WAS DENIED HER [S]IXTH [A]MENDMENT CONSTITUTIONAL RIGHT TO CONFRONT HER ACCUSER (not raised below).

 

 

POINT V

 

CHARGES SHOULD BE REVERSED ON THE REFUSAL TO TAKE A BREATH TEST BECAUSE:

 

1) HE HAD A PRE-DETERMINED MIND WHEN HE WROTE THE TICKET AT THE STOP AT 12:31 AM.

 

2) THE OFFICER'S TIME ON THE TICKET CONTRADICTS THE TIME AND PLACE THE STATE ALLEGES DEFENDANT WAS READ THE STANDARD STATEMENT, PURPORTEDLY AT THE STATIONHOUSE AT 1:07 AM.

 

3) THE TIME ON THE TICKET RAISES A QUESTION TO PROBABLE CAUSE OF THE OFFENSE.

 

4) THE OFFICER'S SIGNATURE ON THE TICKET ATTESTS AND PROVIDES THAT REFUSAL TO TAKE A BREATH TEST OCCURRED AT 12:31 AM.

 

5) THE SUMMONS AND COMPLAINT SUPERSEDES ANY AND ALL OTHER DOCUMENTS.

 

6) DEFENDANT RAISED THE ISSUE OF THE TIME ON THE TICKET, ON AND OFF THE RECORD, PUT ON THE OFFICIAL COURT TRANSCRIPT AT TRIAL OCTOBER 8, 2009.

 

7) THE STATE HAD NOT AMENDED THE TICKET WITHIN THE REQUIRED THIRTY DAY STATUTE OF LIMITATION SET BY N.J.S.A. 39:5-3A SO IT SHOULD BE DISMISSED.

 

8) THE STATE CANNOT ATTEMPT TO AMEND THE TICKET OR DEFENDANT WOULD BE PREJUDICED BY THE DOUBLE JEOPARDY RULE.

 

9) DEFENDANT HAS BEEN PREJUDICED AS SHE HAS ALREADY BEEN CONVICTED IN TWO COURTS ON THE REFUSAL CHARGE.

 

10) THE TIME ON THE TICKET IS MATERIALLY RELATED TO THE FUNDAMENTAL PURPOSE OF THE SUMMONS.

 

11) THE TICKET INTERFERES WITH DEFENDANT'S DEFENSE ON THE MERITS ([] RAISED BELOW IN PART).

 

POINT VI

 

MULTIPLE PROCEEDINGS OCCURRED THAT WERE NOT RECORDED WHICH PREJUDICES DEFENDANT. PRESERVING A RECORD IS NECESSARY FOR APPEAL AND PROCEEDINGS AND DISCUSSIONS "OFF THE RECORD" DEPRIVES DEFENDANT OF THE RIGHT TO CHALLENGE THE ISSUES ON APPEAL.

 

POINT VII

 

THE COURT ABUSED ITS DISCRETION IN ALLOWING THE PROSECUTION UNBRIDLED AND UNRESTRICTED AUTHORITY IN SELECTIVELY CHOOSING AS OPPOSED TO REQUIREMENT OF DUTY TO COMPLY WITH DISCOVERY OF WHICH MEANT DEFENDANT WAS ENTITLED TO HAVE THEREBY PREJUDICING DEFENDANT AND DENIED DEFENDANT OF A FAIR TRIAL; THE COURTS APPENDAGE TO THE SPOTSWOOD POLICE DEPARTMENT LEFT A CHILLING EFFECT ON DEFENDANT'S COUNSEL TO EFFECTIVELY AND PROPERLY PREPARE A DEFENSE; THE COURT DID NOT PUT FORTH ON THE RECORD ANY REASONING OR RULINGS FOR DEFENDANT'S BAR TO EXCULPATORY EVIDENCE; THE COURT ERRED WHEN IT DETERMINED GUILT BASED ON SUFFICIENT CREDIBLE EVIDENCE AS DEFENDANT'S EXCULPATORY EVIDENCE NEVER MATERIALIZED THEREBY MISSING FROM THE RECORD CREATING A "ONE-SIDED" VERSION WHERE DEFENDANT COULD NOT CHALLENGE, CONTRADICT, OR NEUTRALIZE THE STATE'S TESTIMONY; THE COURT MADE A[N] ERROR WHEN IT DID NOT CONDUCT A[N] EVIDENTIARY HEARING WHEN IT WAS OBVIOUS THAT EVIDENCE, AND THE LACK THEREOF, WAS CONTENTIOUS AND MATERIAL IN DISPUTE; THE COURT ERRED WHEN TRIAL WAS ALLOWED TO CONTINUE WITH THE ABSENCE OF A MATERIAL WITNESS ALTHOUGH NOTICED TO APPEAR; THE COURT ERRED WHEN IT EXCLUDED EXPERT TESTIMONY OF MOBILE VISION TO DETERMINE THE INTEGRITY OF A SUSPECTED CORRUPT VIDEOTAPE; THE COURT ERRED WHEN IT FAILED TO CONSIDER, AND OVERLOOKED, THE MATERIAL CONTENT OF THE SUMMONS AND COMPLAINT; THE COURT ERRED WHEN IT DID NOT CONSIDER THE UNDERLYING FACTS AND TOTALITY OF THE CIRCUMSTANCES WHEN MAKING ITS DECISION.

 

POINT VIII

 

MOTIVATION.

We affirm.

These facts are taken from the record. At approximately 12:30 a.m. on May 18, 2009, Spotswood Borough Police Officer Nelson Nichols was on routine patrol driving eastbound on Old Stage Road near its intersection with Summerhill Road. Defendant's vehicle approached the officer's patrol car, driving westbound, with its high beams activated, momentarily blinding the officer. He made a U-turn and effectuated a motor vehicle stop based on improper use of the high beams.

Officer Nichols approached the driver's side of the vehicle and requested defendant's credentials. He noticed an odor of alcohol emanating from defendant s vehicle. When asked, defendant denied that she had been drinking. Officer Nichols continued to converse with defendant, explaining why he stopped her and asking her destination. He noted defendant was "a little bit giggly and giddy." He also observed that her eyes were bloodshot and watery, her eyelids were droopy, and her speech was somewhat slurred. Officer Nichols radioed for back-up and requested a portable breathalyzer.

Sergeant Brian Keenen, a certified field sobriety test operator, responded to Officer Nichols' requests. He too noticed the odor of an alcoholic beverage emanating from defendant's breath. Officer Nichols directed defendant to exit her vehicle and walk toward the sidewalk. He noted she used the car for balance, "was stumbling" as "her gait was a little bit off" and her "stance was a little wide." Sergeant Keenen shined his flashlight into defendant's eyes, which he confirmed were red and bloodshot and her eyelids droopy.

As Sergeant Keenen supervised, Officer Nichols instructed and demonstrated the performance of two field sobriety tests: the walk-and-turn test and one-leg stand test. Defendant forgot the instructions when asked to perform the one-leg stand test. Officer Nichols gave defendant a second opportunity after he repeated the instructions and suggested defendant might remove her high heels for better balance. Defendant removed her shoes but improperly performed the test. On her third attempt she stumbled after six seconds.

Defendant's attempts to complete the walk-and-turn test were equally unsuccessful. She failed to follow instructions, "was keeping a wide stance[,] her feet were at a 45-degree angle and her arms were still coming out." On her second effort, defendant was unable to maintain her balance and did not make heel-to-toe contact. Sergeant Keenen described defendant's demeanor, stating "she thought everything was funny" as if "it was like a game to her." When he asked whether she had consumed alcohol, defendant replied "no, it was sausage."2 Sergeant Keenen inquired whether defendant would submit a breath sample. She declined and was placed under arrest, handcuffed and transported to the stationhouse.

While at the police station, Officer Les Genovese, a certified Alcotest operator, introduced himself to defendant and read the New Jersey Standard Statement for Operation of a Motor Vehicle (Consent Statement), which is required to be recited prior to conducting a breath test. N.J.S.A. 39:4-50.2(e). As Officer Genovese read each question listed on the Consent Statement, defendant did not respond. When he read the final question again seeking her submission to a breath test, she responded negatively. Officer Genovese recorded defendant's response on the document.

Defendant was issued summonses for DWI, refusal, reckless driving, and the improper use of high beams. As a result of a conflict, the matter was transferred to the South Brunswick Township Municipal Court for trial before Municipal Court Judge Dwyer.

During trial the State presented the testimony of Officer Nichols, Officer Genovese and Sergeant Keenen. Additionally, the Consent Statement and the certification and calibration documentation for the Alcotest were offered into evidence. Defendant, appearing pro se, objected to the admission of the Consent Statement asserting it had not been read to her. The court accepted the document over that objection.

The municipal court judge advised her of her right to cross-examine witnesses, present motions at the close of the State's case, remain silent, call witnesses and present evidence. Defendant declined to testify and offered no witnesses. She did, however, move into evidence the videotape of the traffic stop, photographs of the construction area where the stop took place, and an audio recording of the stop. The municipal court judge reserved decision to review defendant's evidential submissions.

On October 22, 2009, the municipal court rendered its oral opinion. Crediting the police officer's testimony, and after review of the video and audio tapes, which he found were consistent with the officers' testimony, Judge Dwyer concluded defendant had exhibited the physical manifestations of intoxication. The court found defendant guilty of DWI, refusal and improper use of her high beams. She was acquitted of reckless driving. Judge Dwyer imposed a three-month suspension of defendant's driving privileges for the DWI conviction, followed consecutively by a seven-month period of suspension for refusing to take the Breathalyzer test. Additional assessments included $648 in fines, $99 in court costs, a $50 Violent Crimes Compensation Board assessment, and a $300 DWI Surcharge. Finally, defendant was ordered to attend twelve hours at the Intoxicated Drivers Resource Center.

In his de novo review of the evidential record, Judge Ferencz found the video evidence consistent with the uncontroverted credible testimony of the officers concluding, as did the municipal court, that defendant s appearance, demeanor, slurred speech and unbalanced gait proved beyond a reasonable doubt that she was intoxicated while driving her vehicle. Additionally, Judge Ferencz concluded the evidence supported defendant's refusal to submit a breath sample and improper use of her high beams. The court affirmed defendant s convictions and imposed the same sentence as the municipal court.

In its de novo review of a municipal court conviction, the Law Division must make independent findings of fact and conclusions of law. It is bound by the evidentiary record of the municipal court and must give due regard to the municipal judge's opportunity to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964); State v. Loce, 267 N.J. Super 102, 104 (Law. Div. 1991), aff'd o.b. 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993).

On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). However, as with the Law Division, we are not in a position to judge credibility, and do not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, supra, 42 N.J. at 161-62). We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1997), but we give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Our deference is properly extended when two prior courts have agreed the witness testimony was credible and supported by the evidence in the record. In such an instance, we will not alter those determinations absent an obvious showing of error. Locurto, supra, 157 N.J. at 474. Unless we are convinced the Law Division's finding was "clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then, [] should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Avena, supra, 281 N.J. Super. at 333 (citations omitted).

In her merits brief, defendant seeks to introduce unsupported factual assertions relating her version of events, which were not presented to the municipal court or the Law Division. We have reviewed the record in light of the arguments presented and conclude these arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We provide these limited comments.

Defendant maintains she was denied due process guaranteed by the Fourteenth Amendment to the United States Constitution and correlating provisions of the New Jersey Constitution, see N.J. Const. art. I, 1, 10, because "the prosecution suppressed evidence[,]" deprived defendant of "meaningful and exculpatory discovery" and "submitted a counterfeit tape at the eve of trial." This argument is primarily based on the fact that equipment difficulties delayed reproduction of the video taken by Officer Nichols' dashboard mounted video recorder. Although defendant was told the tape capturing her stop and arrest was destroyed, the State was able to produce a copy shortly before trial. Defendant in turn offered the video into evidence, suggesting it would refute the State's evidence.

In a related argument, defendant claims the State destroyed or withheld evidence because it never produced a stationhouse video tape of the holding cell as Officer Genovese informed defendant of the consequences of refusing to provide a breath sample after he read the Consent Statement. The State informed the court the video was not preserved. Defendant asserts she was not read the statement.

We reject defendant's claims of a Brady3 violation. Defendant was given the patrol car video prior to trial and never sought additional time for review or expert examination. There is no evidence to support her unsubstantiated protest that

Spotswood in a premeditated way, willfully and intentionally and knowingly programmed and configured its video and audio technology system to purge and delete evidence in thirty days by programming the pre-set parameters and features all of which are determined by Spotswood and in the exclusive custody, care and control of Spotswood.

 

[(Italics in original).]

 

Moreover, defendant's attacks on the integrity of the video and audio evidence are belied by her introduction of these items into evidence at trial.

As to her newly offered contention challenging the credibility of Officer Genovese, the State admitted the holding cell video was destroyed and offered the officer's testimony. Officer Genovese's testimony went unchallenged, even on cross-examination.

When a trial judge has taken testimony and evaluated the credibility of witnesses, our scope of review of the judge's credibility determinations is narrow. State v. Elders, 192 N.J. 224, 243 (2007). So long as such findings are based upon sufficient credible evidence, they are binding upon us as they are entitled to our deference. Ibid. Judge Ferencz's factual findings, including his credibility determinations, are amply supported by sufficient credible evidence in the record and will not be disturbed.

Defendant also asserts there is a deviation between the time Officer Nichols wrote the refusal ticket and the actual time defendant refused Officer Genovese's request to submit a breath sample. She believes this discrepancy warrants reversal of defendant's conviction for violating N.J.S.A. 39:4-50.2. We disagree.

"Our court rules are designed to ensure that traffic offenses are decided on the merits rather than dismissed on technicalities." State v. Fisher, 180 N.J. 462, 469 (2004). This is a technical error in the traffic ticket, which we conclude is not "fatal to the prosecution when the alleged insufficiency did not detract from the intended purpose of the challenged instrument and did not prejudice the rights of the defendant." Id. at 470.

Defendant's remaining legal challenges to the constitutionality of the traffic stop, the alleged denial of her right to confront witnesses, the general claim of deprivation of due process and denial of a fair trial are bald assertions untethered to factual underpinnings that were never expounded before the trial court. "Appellate courts rightly decline to consider questions or issues not presented to the trial court when an opportunity to do so was available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Solondz v. Kornmehl, 317 N.J. Super. 16, 22 (App. Div. 1998); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Here, although defendant cloaks her contentions in constitutional terms, the record reflects she was given the opportunity to present her case, participate in cross-examination of the State's witnesses, object to the admission of certain evidence offered by the prosecution and submit evidence and argument in her defense. We conclude from this review that defendant was given all process she was due and her trial was fair. Accordingly, the conclusion that defendant was guilty of DWI, refusal to submit to a breath test and improperly using her high beams is upheld. See State v. Morris, 262 N.J. Super. 413, 417-18 (App. Div. 1998).

A

ffirmed.

1 In addition to her merits brief filed on September 22 2010, defendant filed a letter brief in February 2011, the arguments in which match those raised in a motion seeking an evidentiary hearing. We consider this submission as defendant's reply brief. The arguments set forth in this reply more succinctly articulate those initially raised. Consequently, we do not restate the rephrased points submitted.

2 When asked by defendant on cross-examination, Sergeant Keenen agreed there was a food container in her vehicle, but he had not inspected its contents.

3 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).