STATE OF NEW JERSEY v. CHRISTINA M. DIRGO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3982-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTINA M. DIRGO,

Defendant-Appellant.

________________________________________________________________

September 11, 2013

Submitted February 25, 2013 - Decided

Before Judges Parrillo and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2011-056.

Law Offices of Fried & Oberndorf, attorneys for appellant (William R. Fried, Jr., on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Christina Dirgo appeals from a May 21, 2012 Law Division judgment, finding her guilty de novo of driving while intoxicated, contrary to N.J.S.A. 39:4-50. She was sentenced to a seven-month license suspension, and monetary fines and penalties. We affirm.

The following facts were adduced from the trial court record. On July 27, 2011, at approximately 6:52 p.m., Officer Robert Shafer (Shafer) of the Verona Township Police Department was dispatched to a location on Bloomfield Avenue to investigate a motor vehicle accident. Upon his arrival, Shafer was met by a woman who stated that when she returned to her parked vehicle, she noticed that it had been struck by another vehicle. The woman directed Shafer to a note, which had been left on her vehicle. The note contained two phone numbers, presumably left by the owner of the other vehicle that had been involved in the accident.

Shafer contacted the numbers left on the note and, after leaving one or two voicemail messages, spoke with a female, later identified as defendant Christina Dirgo, at approximately 8:30 p.m. Defendant told Shafer that she had struck the other vehicle and left the note with her phone number. Shafer told defendant to bring her driver's license, registration, and insurance card to the police station so that he could complete the accident report. At approximately 9:00 p.m., defendant arrived at the police station.

Shafer met defendant in the lobby of police headquarters. Shafer immediately noticed a strong odor of alcohol emanating from defendant's breath. He also noted that her speech was slow and slurred, and that her eyes were watery. He questioned the defendant about the accident and requested her driving credentials, which she immediately produced. Shafer then left police headquarters to check the damage on defendant's vehicle while defendant remained in the lobby.

After noticing that there was no one inside or around the vehicle, Schafer asked defendant how she got to the police station. Defendant replied that she drove to police headquarters. At that point in Shafer's investigation of the motor vehicle accident, defendant had not been read her Miranda1 rights. Shafer then asked defendant to accompany him into the police station for field sobriety testing.2 Defendant was subsequently charged with driving while intoxicated and driving while intoxicated in a school zone.

On September 7, 2011, the Honorable John A. Paparazzo, J.M.C., considered defendant's motion to suppress and defined the issues as whether defendant was in custody, and whether Shafer subjected defendant to custodial interrogation while at the police station for the motor vehicle investigation. Defendant argued that her statements to police should be suppressed because she was not given Miranda warnings. Shafer testified that while he was investigating the motor vehicle accident, defendant was not under arrest but acknowledged, on cross-examination, that if defendant had tried to leave the station at that time, he would not have let her leave the area and would have placed her under arrest for interfering in his investigation.

Defendant testified at the hearing stating that:

I walked into the police lobby with a great deal of trepidation. I was kind of intimidated. I always am when I go into police stations. Anyway, I knew I had had a couple of drinks. I knew that there had been a problem with this accident. It was late, I was tired, and I knew -- kind of had a feeling that once I was in that door, there was no turning back.

Defendant testified that she neither felt free to leave the premises nor free to refuse to answer Shafer's questions.

Following the attorneys' questions, the court asked:

Q: So when you came in, did -- did any of the police officers or Officer Shafer, were they abusive to you or threaten you or do anything that would cause you to be you know, why am I being treated like this or anything like that?

A: No, but police -- as I said before, police departments and police in general tend to intimidate me.

. . . .

Q: But there was nothing to prevent you from walking out the door, correct?

A: No, sir.

The judge was not persuaded by defendant's arguments. Determining that her subjective feelings regarding the incident were not controlling, the judge instead applied the reasonable person standard to conclude that defendant was not in custody. The judge reasoned that any person who enters the lobby of a police department voluntarily should not feel that they are in custody unless there are other factors involved. The judge found Shafer's statements to be credible and consistent with defendant's testimony and held that there were no "other factors" present.

Next, the judge found that defendant was not subject to interrogation. Rather, the judge held that Shafer's questions were merely preliminary, investigative questions appropriate under the circumstances. As such, the judge did not find that Miranda warnings were necessary.

In a trial de novo, the Honorable Thomas M. Moore, J.S.C., upheld the conviction finding that defendant was neither in custody nor subjected to interrogation, and thus, Miranda warnings were not required to be given. This appeal followed.

On appeal, defendant raises the following claims:

I. IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS HER STATEMENTS MADE TO THE POLICE, THE SUPERIOR COURT ERRED BECAUSE THE DEFENDANT'S FIFTH AMENDMENT RIGHTS WERE VIOLATED [INASMUCH] AS THE DEFENDANT WAS IN CUSTODY AND HER MIRANDA RIGHTS WERE NOT READ TO HER BEFORE THE POLICE BEGAN THEIR INTERROGATION.

A. In Finding That the Defendant Was Not in Custody, the Superior Court Erred Because a Reasonable Person in the Defendant's Position Would Not Have Felt Free to Leave.

B. In Finding That the Defendant Was Not Interrogated, the Superior Court Erred Because the Police Elicited an Incriminating Response From Her Using Direct Questioning or Its Functional Equivalent While She Was in Custody.

1. In Finding That the Defendant Was Not Interrogated, the Superior Court Erred Because the Defendant Was Subjected to Express Questioning While in Custody.

2. In Finding That the Defendant Was Not Interrogated, the Superior Court Erred Because the Defendant Was Subjected to the Functional Equivalent of Express Questioning While in Custody.

In her supplemental brief, defendant raises these additional issues:

I. THE CORRECT STANDARD OF REVIEW IS DE NOVO DUE TO THE LAW DIVISION'S INCORRECT APPLICATION OF THE RELEVANT LAW.

II. THE LAW DIVISION ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION.

After carefully considering the record in light of the applicable legal standards, we affirm substantially for the reasons set forth in Judge Moore's well-reasoned written opinion of May 21, 2012. We add the following comments.

Our review of the Law Division's decision is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). The "standard of review of a de novo verdict after a municipal court trial is to 'determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Unless there is an obvious and exceptional showing of error, we will not disturb the Law Division's findings when the municipal court and Law Division "have entered concurrent judgments on purely factual issues." Ibid. (citing Locurto, supra, 157 N.J. at 474). However, "a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant first contends that her statement should have been suppressed because she was in police custody when she was questioned by Shafer without receiving Miranda warnings.3 New Jersey applies a totality of the circumstances test to determine whether a detainee is in custody. State v. Pierson, 223 N.J. Super. 62, 67 (App. Div. 1988), certif. denied, 153 N.J. 216 (1998). It is an objective test that examines "the duration of the detention, the nature and degree of the pressure applied to detain the individual, the physical surroundings of the questioning and the language used by the officer in summoning the individual." Ibid. (citing United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981); State v. Godfrey, 131 N.J. Super. 168, 175-77 (App. Div. 1974), aff'd o.b., 67 N.J. 267 (1975)). Here, defendant reported to the police station under the influence of alcohol. There were no other persons nearby while sheremained in the vestibule of the police station as Shafer conducted the inspection of her vehicle. Defendant was never told by any officer that she could not leave; and the interaction lasted no longer than twenty minutes. Based on those facts, Judge Moore correctly determined that defendant was not in custody.

Even if defendant was found to be in custody during the twenty minute encounter, Miranda warnings are not required before engaging in "'[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.'" State v. Ebert, supra. 377 N.J. Super. at 9 (quoting Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725); see alsoState v. Gosser, 50 N.J. 438, 446 (1967). In Ebert, supra, 377 N.J. Super. at 10, we determined that Miranda did not apply when officers are asking questions while undertaking an initial motor vehicle investigation.

Also, officers are "not required to give Miranda warnings before asking questions reasonably related to dispelling or confirming suspicions that justify the detention." State v. Smith, 374 N.J. Super. 425, 431 (App. Div. 2005)(citing Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317 (1984)).

Here, it is clear that Shafer was undertaking an initial investigation of the motor vehicle damage caused by defendant. While the questioning did not take place at the scene of the accident, once defendant arrived at the police station she was nevertheless asked the same type of general questions necessary for Shafer to complete an incident report. Although Shafer may have suspected that defendant had been drinking when he smelled alcohol on her breath and observed her slurred speech and watery eyes, he did not place defendant under arrest until after he administered the field sobriety tests.

We conclude that the evidence in this record amply supports the finding that defendant's statements to Shafer at the police station were admissible.

In light of our determination, we find defendant's remaining arguments have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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

2

We have not been provided with any evidence or statements related to the field sobriety test because it was not germane to the issue on appeal.

3 Defendant posits that she made the incriminating statement in response to Shafer's question regarding how defendant arrived at headquarters. She responded that she drove herself.