STATE OF NEW JERSEY v. VIVIAN RIVERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5288-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VIVIAN RIVERA,

Defendant-Appellant.

____________________________________

April 11, 2011

Submitted March 9, 2011 - Decided

Before Judges Fuentes and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0007-10.

Biel, Zlotnick & Feinberg, P.A., attorneys for appellant (Jacqueline Hawkins Stiles, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Vivian Rivera appeals from a judgment of conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. She was sentenced to twelve hours of Intoxicated Driver Resource Center classes and her driving privileges were revoked for seven months. Appropriate fines and penalties were imposed, and two other traffic offenses were dismissed. Defendant raises the following arguments on appeal:

A. The Trial Court erred in affirming the decision of the Municipal Court in denying a Mistrial due to ineffective assistance of counsel.

B. The Trial Court erred in affirming the Defendant guilty of the offense charged since the evidence presented failed to establish Defendant's guilt beyond a reasonable doubt.

C. The Trial Court erred in affirming the Decision of the Municipal court in denying the Motion for a Mistrial, and therefore, the standard of review should be considered harmful error.

We affirm.

I.

The sole issue at trial was whether defendant was driving on the morning she was arrested. Defendant admitted she was intoxicated and stipulated to her Alcotest reading of .10%. She denied operation of the vehicle, claiming that when the policeman stopped the car, her ex-boyfriend, Paulino DeJesus, threatened her and forced her to switch seats because his driving privileges were suspended.

Due to adjournments to permit defendant to notify or subpoena witnesses, the municipal court trial took place over five days in June, July, August and December, 2009. We summarize the relevant testimony.

On October 12, 2008, at 3:00 a.m., Sergeant Patrick Muller was on routine patrol in Hamilton Township, Atlantic County, when he observed a white Cadillac exiting the entrance drive of a Wawa market. The entrance was clearly marked "Do Not Enter" for exiting traffic. Muller followed the car and pulled it over after observing the driver make a left-hand turn against a red traffic signal.

Muller could not see into the vehicle before approaching it on foot because the rear windshield was tinted, but he had no doubt defendant was the driver because after stopping the car he "went right up to the passenger-side window." He did not see the car move after it stopped and he noticed nothing unusual as he approached on foot. Defendant was in the driver's seat, the owner of the car, DeJesus, was in the passenger seat, and two passengers were in the rear seat. Muller acknowledged the possibility that the driver and DeJesus could have switched places, but said it was not probable.

Muller smelled alcohol, observed defendant's eyes were bloodshot, asked for her license three times, then had her exit the car. He asked why she was driving the way she was driving, and she responded that DeJesus was her ex-boyfriend and they were trying to date again. Muller asked if she was afraid of him or if he hit her, and she replied, "no, [w]e just don't have anything in common, and I want to go home." Defendant was transported to the police station, given a breath test, then charged with DWI and two other traffic offenses.

Defendant testified that DeJesus, the father of her child, was driving the car, but when the policeman pulled them over DeJesus forced her to switch seats because he had a prior DWI conviction and his license was suspended. He threatened her and said if she did not switch seats he would hurt her. She was afraid of him because he had previously hit her and bitten her stomach. She had obtained a restraining order against him, but it was no longer in effect.

Defendant also testified she weighed 150 to 160 pounds and DeJesus weighed around 180 pounds, but nothing in the car moved when they switched seats. She initially told Muller DeJesus was driving, but then lied and said she was driving. Finally, she testified she had been driving a school bus for the State for three years and insisted she would never drive while intoxicated.

Defendant called two witnesses. Her friend, Tila Alicea, a rear seat passenger, testified the car belonged to DeJesus, he drove it from Vineland to Hamilton Township where Muller pulled them over, and after they stopped defendant and DeJesus switched seats. There was a console between them on the front seat, but they switched quickly. Later, she and DeJesus went to the police station to tell the officers defendant was not driving, but the police had already arrested defendant and "didn't want to hear it."

DeJesus testified next. He acknowledged he owned the Cadillac, but when defense counsel asked him who was driving, he replied defendant was driving his car. When asked why, he said he would not have been driving because his license was suspended.

DeJesus's testimony concluded the proofs on operation of the vehicle and the attorneys began to make closing statements. When defense counsel began to argue, the judge told him he could not argue against the credibility of his own witness, DeJesus.1 Defense counsel responded, "I didn't interview him prior to. He never responded to my ." Based on the testimony of Muller and DeJesus, the court found defendant was operating the Cadillac.

On the next trial date defendant informed the court she had fired her attorney and wanted to retain new counsel because DeJesus had lied. The court granted her request to retain new counsel and granted her attorney's request to be relieved as counsel. Defendant subsequently appeared with new counsel who moved for a mistrial based on the ineffective assistance of her first attorney, who called DeJesus as a witness without first interviewing him. The court denied the motion, noting that defendant represented DeJesus would appear and recant his testimony, and that DeJesus had actually appeared earlier that day, then left. The judge convicted defendant of DWI. On de novo review, the Law Division also convicted defendant of DWI.

II.

Our scope of review is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). Our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J.146, 162 (1964). When we conclude the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Ibid.

Defendant argues the evidence failed to establish her guilt beyond a reasonable doubt. We disagree. Defendant was seated in the driver's seat when Muller approached the car. She admitted she was intoxicated and stipulated to her .10% Alcotest reading. Despite the size of defendant and DeJesus, and despite their having to climb over the console between them, Muller saw no movement as he walked toward the Cadillac after exiting his patrol car. More significantly, defendant testified that after initially denying operation, she told Muller she was the driver. The Law Division's determination is supported by sufficient credible evidence in the record.

Defendant also alleges the Law Division erred in denying her motion for a mistrial based on the ineffective assistance of her trial counsel. To establish ineffective assistance of trial counsel, defendant must make the two-part showing set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), namely, that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and that counsel's deficient performance prejudiced the defense.

"Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Ibid.

Here, defendant moved for a mistrial based on her attorney calling DeJesus as a witness without first interviewing him, but she neither confirmed nor denied that her attorney acted upon her advice and at her request. Defense counsel did not explain why he called DeJesus as a witness without first interviewing him. In the absence of such evidence from either defendant or her attorney, defendant's ineffective assistance claim cannot be evaluated on direct appeal. We therefore decline to decide the issue.

A

1 The municipal court's comment was erroneous. See Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2010).