STATE OF NEW JERSEY v. TRACEY MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3405-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRACEY MILLER,

Defendant-Appellant.

_____________________________

Telephonically argued April 19, 2013 Decided May 31, 2013

 

Before Judges Sapp-Peterson and Happas.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 14-2011.

 

Charles A. Fiore argued the cause for appellant.

 

Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).

 

PER CURIAM

Following a trial de novo on the record created in the Waterford Township Municipal Court, the Law Division judge found defendant guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; and failure to stop, N.J.S.A. 39:4-144. We affirm.

The incident leading to defendant's arrest occurred on October 14, 2010, around 1:23 a.m. At that time, Patrolman Timothy Lyons observed a vehicle proceed through a stop sign without stopping. The officer pulled over the driver, who was subsequently identified as defendant. The officer observed defendant fumbling to retrieve his credentials and detected an odor of alcohol. Field sobriety tests, which included a field breathalyzer, were performed. Defendant failed these tests and was arrested for DWI and other moving violations. At the station, he refused to submit to a formal breathalyzer test, despite being advised that he had no right to refuse.

At trial before the municipal court, defendant moved for recusal of the judge because he planned to initiate litigation against the municipality, which employed the municipal judge and police officers, many of whom regularly appeared before the judge. The judge denied the motion. The judge also denied defendant's motion for disclosure of the cell phone records of the arresting officer and Sergeant Joseph McNally, who was present at the station when defendant was brought in, witnessed defendant's conduct, and also purportedly had a relationship with defendant's former wife. Defendant claimed the discovery was relevant to show that Lyons and McNally had communicated on the evening of his arrest and coordinated a pattern of harassment.

The municipal judge credited the officers' testimony and found defendant guilty of the DWI, refusal, and failure to stop. The judge acquitted defendant of careless driving. On appeal de novo, the Law Division judge once again found defendant guilty. The judge, while recognizing the fact of potential litigation against the police and municipality, noted there had been no issues involving the municipal court judge. Giving deference to the municipal judge's credibility determination, the Law Division judge found the testimony about defendant's bloodshot eyes, slurred speech, slow speech, and admission that he had been drinking, were unrefuted facts. Additionally, the judge noted that despite the considerable expert testimony offered regarding the deficiencies in the field sobriety tests administered, defendant's own expert concluded at trial that defendant clearly failed the walk-and-turn test. The judge also rejected the claims that defendant was confused when he refused to submit to the Alcotest. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE COURT SHOULD HAVE GRANTED THE DEFENDANT'S MOTION FOR RECUSAL.

 

POINT II

THE MUNICIPAL JUDGE ACTED AS BOTH JUDGE AND PROSECUTOR.

 

POINT III

THE COURT SHOULD HAVE ALLOWED DISCOVERY OF OFFICER LYONS AND SERGEANT MCNALLY'S CELL PHONE RECORDS.

 

POINT IV

THE USE OF THE INTOXILYZER CAUSED CONFUSION AND THE COURT MUST DISMISS THE REFUSAL.

 

POINT V

THE DEFENDANT WAS NOT PROPERLY ADVISED OF HIS MIRANDA RIGHTS.

 

POINT VI

THE ELEMENTS OF REFUSAL TO SUBMIT TO BREATH SAMPLING ARE NOT PRESENT HERE.

 

POINT VII

THE CREATION OF SERGEANT MCNALLLY'S SPECIAL REPORT CALLS INTO QUESTION THE WITNESS'S CREDIBILITY.

 

POINT VIII

THE OFFENSE OF FAILURE TO STOP SHOULD HAVE BEEN MERGED WITH THE OTHER OFFENSES FOR SENTENCING.

 

I.

A trial court's decision granting or denying a recusal motion is committed to the trial judge's "sound discretion." State v. McCabe, 201 N.J. 34, 45 (2010) (citing Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001)). Moreover, a trial judge is not barred from hearing a case because he or she has "given his opinion . . . ." Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 358 (App. Div.) (citing R. 1:12 1), certif. denied, 107 N.J. 60 and 61 (1986). Here, there was no basis to recuse the judge. As the Law Division judge noted, defendant proffered no evidence that the judge had been involved in any alleged unconstitutional behavior with defendant.

As for the judge's purported role as an advocate, only one section of the trial is cited in the brief to support this contention. This exchange involved the judge questioning the scope of questions posed to Patrolman Lyons, who had not been qualified as an expert. The prosecutor had not objected to the questioning. Defense counsel proffered his reason and the court responded by limiting the questioning to the issue of probable cause. Defense counsel asserted the questioning was relevant on the issue of whether his client had been "zeroed out." Defense counsel then suggested that he should perhaps ask that question directly, and he was not precluded from doing so. A trial judge is accorded broad discretion in controlling the manner of questioning witnesses as well as presenting evidence. See N.J.R.E. 611; see also Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971). It is evident the judge's inquiry was designed to ensure that the questioning did not extend beyond the witness's role as a fact witness. Therefore, the judge's inquiry as to why defense counsel was posing a particular question did not turn the judge into an advocate.

Defense counsel points to no other areas in the record where the trial judge purportedly acted as an advocate rather than a neutral and detached factfinder. It is not our responsibility to search the record for examples of the trial judge's overreaching. Defendant ignores the fact that it is his responsibility to refer us to specific parts of the record to support his argument. He may not discharge that responsibility by urging in his brief that "[t]here are a number of examples in the transcripts of the municipal court hearing" of the judge stepping outside of her appointed role as a neutral factfinder, thereby implicitly inviting us to search through the record ourselves for these examples. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977).

II.

The trial judge's rulings on the discovery requests are subject to an abuse of discretion standard of review. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). Defendant sought discovery of cell phone records in order to determine whether there were inappropriate communications between Patrolman Lyons and Sergeant McNally on the night of defendant's arrest. The trial judge concluded the claimed need for such records was beyond the scope of discovery. We agree.

The issues before both the municipal court judge and the Law Division judge focused upon the judge's recusal, the alleged confusion created by the use of the Intoxilyzer breath device to informally test defendant in the field, the purported failure to advise defendant of his Miranda1 rights, the State's failure to satisfy the elements for conviction on the refusal charge, and the impact of Sergeant McNally's "special report" on the sergeant's credibility. The relevancy of cell phone communications between Patrolman Lyons and Sergeant McNally to these issues was not established. Instead, defense counsel acknowledged that the discovery sought was relevant to the separate litigation defendant intended to file in federal court. Moreover, the trial court permitted defense counsel to cross-examine the witnesses about cellular communications to the extent it bore upon the Alcotest machine.

Finally, it is apparent that in citing State v. Ford, 240 N.J. Super. 44 (App. Div. 1990), and State v. Tull, 234 N.J. Super. 486 (App. Div. 1989), the court concluded defendant was not entitled to unfettered discovery. Discovery in DWI cases is limited to the receipt of relevant items which assist defendant in providing a defense to the charges. State v. Carrero, 428 N.J. Super. 495, 507 (App. Div. 2012). "A DWI defendant cannot require the court to compel the State to reveal information which merely could lead to other information that is relevant." Ibid. (citing State v. Maricic, 417 N.J. Super. 280, 284 (App. Div. 2010).

III.

The remaining points raised by defendant in Points IV and V are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

Our proper scope of review is to determine whether there was "sufficient credible evidence present in the record" to uphold the findings of the Law Division judge. State v. Johnson, 42 N.J. 146, 162 (1964). We may "not weigh the evidence, assess the credibility of the witnesses, or make conclusions" from the evidence. State v. Barone, 147 N.J. 599, 615 (1997). Deference to credibility and factual findings is especially compelling where municipal court and superior court judges have concurrent judgments on purely factual issues. State v. Locurto, 157 N.J. 463, 474 (1999).

"'[A]nything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the breathalyzer test constitutes a refusal to do so.'" State v. Widmaier, 157 N.J. 475, 488 (1999) (quoting State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div.) (quoting Corrado, supra, 184 N.J. Super. at 569, certif. denied, 126 N.J. 323 (1991))). The municipal court credited the testimony of the arresting officer in finding the State proved beyond a reasonable doubt that defendant refused to submit to a breathalyzer. The testimony of the discontinued use of the Intoxilyzer as part of field sobriety testing did not vitiate the credibility determination made by the municipal court judge, to which the Law Division deferred and to which we defer. There is substantial, credible evidence in the record to support the factual determinations reached and we discern no basis to disturb those findings.

Defendant's claim that he was not administered Miranda warnings, raised for the first time in his de novo appeal, was nothing more than defense counsel's forward thinking in the context of unrelated litigation. Defense counsel argued that there was nothing in discovery to reflect that defendant "ever signed and executed a Miranda card[.]" The Law Division judge inquired "what is it that you say that the statement proves any of these offenses that you believe were elicited in violation of Miranda?" Defense counsel responded: "They haven't, Judge. I just wanted to preserve that issue in the event that prospectively, Judge, it could be utilized."

F

inally, the court did not err when it declined to merge the failure to stop conviction with the DWI conviction. As the Law Division judge properly recognized, the two offenses involve separate elements. While motor vehicle violations often form the basis for an initial stop, proof of DWI does not require proof of a motor vehicle violation during the course of operating a vehicle but proof of operation or the intent to operate a motor vehicle while under the influence of alcohol. See, e.g., State v. Mulcahy, 107 N.J. 467, 478 (1987) (distinguishing "between the concept of 'operating' a motor vehicle for the purposes of defining a moving violation and 'operating' for purposes of defining the essence of the under-the-influence offense"). On the other hand, disregarding a stop sign requires more than mere operation of a vehicle but also requires proof that the driver failed to bring "the vehicle . . . to a complete stop at a point within five feet of the . . . stop line marked upon the pavement at the near side of the intersecting street . . . ." N.J.S.A. 39:4-144.

Affirmed.

1 Miranda v. Ariz., 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).