STATE OF NEW JERSEY v. DAWN M. LOPEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4338-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAWN M. LOPEZ,

Defendant-Appellant.

SubmittedMarch 5, 2013 Decided May21, 2013

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 01-36-11.

Rem Zeller Law Group, attorneys for appellant (Joseph P. Rem, Jr., of counsel; Lisa R. Paitchell, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (William Miller, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dawn Lopez appeals from her de novo conviction for driving while intoxicated (DWI). Defendant argues that her conviction should be vacated due to violations of her rights under the federal and state constitutions. We affirm.

On June 16, 2010, defendant was involved in an automobile accident. The Bergen County Police Department sent an officer to respond to the scene. At the scene, the officer observed indications that led him to believe defendant had been DWI. The officer had defendant perform field sobriety tests, which confirmed his suspicions. He arrested defendant on charges of DWI and careless driving, then transported her to headquarters.

At headquarters, another officer administered an Alcotest breath examination to defendant, which produced a reading of 0.16 percent blood alcohol content.

On November 9, 2010, the Central Municipal Court of Bergen County heard defendant's motion to suppress the Alcotest results. Defendant argued, in part, that the results should be suppressed due to the State's failure to use the Ertco-Hart Thermometer. The municipal court judge decided to adjourn the matter until State v. Holland, 422 N.J. Super. 185 (App. Div. 2011), then still pending, was decided, as it concerned the same argument.1

On December 7, 2010, the municipal court heard the testimony of the arresting officer pertaining to his observations of defendant. The judge reserved his decision, as we had yet to issue an opinion in Holland.

On June 20, 2011, following our decision in Holland, the municipal court denied defendant's motion to suppress the Alcotest results. On the same date, the officer who administered the Alcotest on defendant began his testimony. However, the officer was unable to complete his testimony, as he had failed to bring his "Alcotest checklist," which he indicated he needed for reference. Over defendant's objection, the judge adjourned the matter to permit the testifying officer to retrieve his checklist for use at the next court date. Defendant argued that the multiple adjournments violated her right against double jeopardy. U.S. Const. amend. VI; N.J. Const.art. I, 11.

On August 9, 2011, the officer who administered the Alcotest was over an hour late to court. Over defendant's objection, the judge again adjourned the trial. This time, defendant contended that the postponement violated her right to a speedy trial. U.S. Const. amend. VI; N.J. Const.art. I, 10.

On September 13, 2011, the trial continued. The officer who administered the Alcotest testified that he discovered that he had not completed an Alcotest checklist or any other report in this case, but he did have the Alcotest Influence Report generated by the Alcotest. The judge determined the Alcotest results were admissible and found defendant guilty of DWI and not guilty of careless driving.

On the same date, the judge sentenced defendant to a two- year driver's license suspension, installation of an interlock device on her vehicle for one year, forty-eight hours in the Intoxicated Driver's Resource Center, thirty-days of community service, and fees and costs.

Thereafter, defendant filed a timely de novo appeal of her conviction and sentence to the Law Division, arguing her constitutional rights were violated due to the multiple adjournments of the trial. On March 12, 2012, the Law Division conducted a hearing on the appeal. Following the hearing, the Law Division judge issued an oral decision rejecting defendant's arguments, finding defendant guilty, and imposing the same sentence as the municipal court. On March 23, 2012, the judge signed an order reflecting his oral decision.

This appeal followed, with defendant raising the following points for our consideration:

POINT I: [DEFENDANT] HAS BEEN TWICE PUT IN JEOPARDY DUE TO THE UNREASONABLE DELAY IN THIS MATTER AND FAILURE TO PROSECUTE.

POINT II: THE MOTOR VEHICLE SUMMONSES AGAINST [DEFENDANT] SHOULD HAVE BEEN DISMISSED BECAUSE HER CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL WAS VIOLATED.

I.

Municipal DWI convictions are first appealed to the Law Division. R.7:13-1; R.3:23-1; State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003). The standard of review of such appeal is de novo, Rule3:23-8, and the Law Division decides the case anew, deferring only to the credibility findings of the municipal court. State v. Locurto, 157 N.J.463, 472-74 (1999). On appeal to this court, we review whether there is sufficient credible evidence in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J.146, 162 (1964). On issues of law, our review is de novo. State v. Brown, 118 N.J.595, 604 (1990). However, like the Law Division, we defer to the credibility determinations of the municipal court. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

II.

We first address defendant's double jeopardy argument. The Double Jeopardy Clause of the Fifth Amendment provides, "[n]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]" The analogous New Jersey constitutional provision states, "[n]o person shall, after acquittal, be tried for the same offense." N.J. Const. art. I, 11. The Double Jeopardy Clause protects against a second prosecution for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969); State v. De Luca, 108 N.J.98, 102, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987).

Here, defendant's entire double jeopardy argument rests on a thirty-eight year old Law Division case, State v. O'Keefe, 135 N.J. Super. 430 (Law Div. 1975), which we initially note is not binding on this court. Nevertheless, we find O'Keefereadily distinguishable from the present matter.

In O'Keefe, the defendant was charged with operating a motor vehicle with a revoked license. Id.at 434. As the municipal prosecutor was about to rest his case, the municipal court judge informed the prosecutor that he had failed to submit evidence that defendant knew that his license had been revoked, a necessary element of the offense. Ibid. Over the defendant's objection, the judge continued the case to permit the prosecutor to investigate this fact. The defendant appealed, arguing that, under the circumstances, a two-week continuance after the State was about to rest without having proven an element of its case, constituted double jeopardy. Ibid. On de novo appeal, the Law Division accepted the defendant's argument and reversed his conviction, noting that it was inexcusable neglect for the municipal prosecutor not to have investigated an essential element of the offense. Id.at 438.

In this matter, the first adjournment that occurred after the case had started was due to the municipal court waiting for the outcome of Holland. This adjournment was reasonable, as Hollandcould have changed the outcome of the case. The next adjournment occurred due to the mistaken belief of the officer who administered the Alcotest that he had forgotten to bring necessary documents with him. Finally, the last adjournment was granted due to the officer who administered the Alcotest arriving late for court.

Defendant has failed to provide a convincing argument on how her right against double jeopardy was violated. Defendant was not tried more than once for the same offense. Unlike O'Keefe, the municipal court judge did not notify the prosecutor that he failed to prove a necessary element of the charge. Municipal courts in this State are very busy, and sometimes adjournments are necessary due to the scheduling demands of the courts and the attorneys who appear there. Although the handling of this case was certainly not optimal, we discern no valid basis for defendant's claim that her right against double jeopardy was violated.

III.

We now turn to defendant's argument that her right to a speedy trial was violated due to the multiple adjournments. We do not overturn a trial court's decision on a speedy trial claim unless it is "clearly erroneous." State v. Tsetsekas, 411 N.J. Super.1, 10 (App. Div. 2009).

A defendant has a constitutional right to a speedy trial. U.S. Const. amend. VI; N.J. Const.art. I, 10. In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972), the United States Supreme Court delineated four factors a court must evaluate to determine whether a defendant's right to a speedy trial has been violated: (1) "Length of delay[;]" (2) "the reason for the delay[;]" "the defendant's assertion of his right[;]" and (4) "prejudice to the defendant."2Here, we reject defendant's contention that the totality of these factors weighs in her favor.

As to the first factor, the length of the delay was approximately fifteen months. Although this was a lengthy delay, it does not in and of itself constitute a violation of defendant's right to a speedy trial. Additionally, as noted previously, municipal courts experience a high volume of cases, and lengthy delays are sometimes unavoidable due to extenuating circumstances.

As to the second factor, the court must evaluate whether the adjournments were "reasonably explained and justified." State v. Detrick, 192 N.J. Super.424, 426 (App. Div. 1983). The first two adjournments were certainly justified, as the municipal court was awaiting our decision in Holland, which, as noted previously, could potentially have changed the outcome of the case. The second two adjournments were caused due to the mistakes of the testifying police officer. First, the municipal court granted an adjournment because the officer claimed that he did not have a document he needed to testify. Second, the municipal court granted an adjournment because the officer appeared too late for court. Although the officer later discovered that he did not have the document he thought he needed, we determine that the two adjournments were reasonably explained and justified.

As to the third factor, it is undisputed that defendant raised her speedy trial right to the municipal court and again to the Law Division.

Finally, as to the fourth factor, we note that prejudice can be found from a variety of factors including "employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like." State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999) (internal quotation marks and citations omitted). Here, as to prejudice, defendant merely complains of "anxiety of having a DWI charge pending for well over a year." We are not persuaded by this claim of prejudice. On balance, after considering the Barkerfactors, we agree with the Law Division that defendant's right to a speedy trial was not violated.

Affirmed.

1 In Holland, we held that the State is not required to use the Ertco-Hart Thermometer. Id. at 196.

2 In State v. Cahill, 213 N.J. 253 (2013), our Supreme Court affirmed the State's adherence to the four-prong Barker balancing test.