STATE OF NEW JERSEY v. MICHAEL ARNO

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5356-14T4

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

MICHAEL ARNO,

          Defendant-Appellant.
_______________________________

              Argued October 26, 2017 – Decided November 14, 2017

              Before Judges Simonelli, Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Municipal
              Appeal No. 5-15.

              Timothy P. Kane argued the cause for appellant
              (Abdy & Kane, PC, attorneys; Mr. Kane, on the
              briefs).

              Rory A. Eaton, Assistant Prosecutor, argued
              the   cause  for   respondent  (Michael   H.
              Robertson,   Somerset   County   Prosecutor,
              attorney; Mr. Eaton, of counsel and on the
              brief).

PER CURIAM

        Defendant appeals from his conviction, after a trial de novo

in the Law Division, of driving while intoxicated (DWI), 
N.J.S.A.
39:4-50; refusal to submit to a chemical breath test, 
N.J.S.A.

39:4-50.2; and careless driving, 
N.J.S.A. 39:4-97.1   We affirm.

     The facts and procedural history of this case are set forth

at length in Judge Kimarie Rahill's comprehensive twenty-six-page

written decision and need not be repeated here in the same level

of detail.

     Officer Ryan Cerro observed defendant driving his car near

the Somerville Circle at approximately 2:45 a.m.   Defendant veered

off into the left lane of travel and, although the speed limit was

forty-fives mile per hour, defendant accelerated to approximately

sixty miles per hour and then had trouble maintaining his lane.

After defendant began driving even faster, Officer Cerro activated

his overhead lights and executed a motor vehicle stop.

     The officer detected the odor of alcohol emanating from

defendant's car and on his breath.   Defendant's eyes were watery,

he appeared nervous, and his speech was boisterous in nature.


1
  Defendant does not challenge his sentence in this appeal.
Following our April 26, 2016 order granting defendant a limited
remand to the municipal court for resentencing, the municipal
court sentenced defendant as a second offender on the DWI
conviction to a two-year driver's license suspension, forty-eight
hours at an Intoxicated Drivers Resource Center, the installation
of an interlock device for one year, and appropriate fines and
penalties. The Law Division had earlier affirmed the municipal
court's imposition of a concurrent seven-month driver's license
suspension for refusal, together with fines and penalties on that
charge, as well as for the careless driving conviction.


                                2                           A-5356-14T4
Defendant admitted he had been drinking alcohol during the day,

but believed he was fine to drive.

     Officer Cerro had defendant perform two field sobriety tests,

which    he   was    unable   to   successfully   complete.2   Defendant's

performance on these tests was recorded by the officer's mobile

video recorder (MVR) and this recording was played at defendant's

trial.    After defendant failed the field sobriety tests, Officer

Cerro arrested him, placed him in his patrol car, and drove to the

police station.        At the station, defendant refused to submit to a

chemical breath test.

     Officer Cerro was the State's only witness at the municipal

court trial.        After the State rested, defendant called two expert

medical witnesses.        One of the witnesses, a podiatrist, testified

that he treated defendant for a "painful left big toe" both before

and after his arrest and that this condition affected his ability

to walk normally.          A pulmonologist, who was also defendant's

brother, testified that he diagnosed defendant with a bronchospasm

two days before his arrest.          The brother also stated that when he




2
  On the "walk-and-turn" test, defendant needed to raise his arms
to maintain his balance and failed to walk heel-to-toe as
instructed. Defendant was also unable to perform the "one-leg-
stand" test because he again needed to raise his arms to maintain
his balance and could not keep his foot six inches off the ground
for thirty seconds.

                                        3                          A-5356-14T4
picked defendant up from the police station, defendant did not

appear to be under the influence.

     Based upon the testimony presented at trial, the municipal

court judge found defendant guilty of DWI, refusal, and careless

driving. The judge made detailed findings of fact, fully crediting

Officer Cerro's testimony.    The judge rejected the opinions of

defendant's experts, noting that their claims that defendant's

performance on the field sobriety tests may have been affected by

a medical condition were belied by the MVR recording of defendant

performing the tests.   Based on his review of that recording, the

judge found that although defendant was unable to maintain his

balance during the tests, he had no difficulty walking on the

roadway as he prepared to take the tests.

     Following the trial de novo in the Law Division, Judge Rahill

made equally detailed findings of fact and conclusions of law in

her extremely thorough written opinion, and affirmed defendant's

convictions.   This appeal followed.

     On appeal, defendant raises the following contentions:

           POINT I

          THE TRIAL COURT'S ARBITRARY AND UNREASONABLE
          DENIAL OF AN EXTENSION CONSTITUTED AN ABUSE
          OF DISCRETION AND A VIOLATION OF DEFENDANT['S]
          . . . RIGHT TO COUNSEL MANDATING A REVERSAL
          OF DEFENDANT'S CONVICTIONS.



                                 4                         A-5356-14T4
POINT II

DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT
AND NEW JERSEY CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND HIS
DUE PROCESS AND STATE RIGHT TO A FAIR TRIAL
BY JUDGE KELLEHER'S GRANTING THE WITHDRAWAL
MOTION OF HIS RETAINED ATTORNEY WITHOUT CAUSE,
AND BY SAID ATTORNEY FAILING TO COMPLY WITH
THE COURT ORDER AS TO THE REASON FOR FILING
THE MOTION TO BE RELIEVED, RESULTING IN: 1)
DEPRIVATION OF DEFENDANT'S COUNSEL OF CHOICE;
2) TRIAL WITH INSUFFICIENT TIME FOR NEW
COUNSEL TO PREPARE; 3) A LACK OF DISCOVERY;
AND 4) A LACK OF THE DEFENSE EXPERT WHICH HAD
BEEN PAID FOR BY THE DEFENDANT AND WAS
ESSENTIAL TO HIS DEFENSE.

POINT III

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED
DUE TO THE MUNICIPAL COURT'S STRUCTURAL ERROR
IN INCORPORATING THE SUPPRESSION MOTION AND
TRIAL INTO A CONCURRENT PROCEEDING WITHOUT THE
EXPRESS CONSENT OF THE PARTIES.

POINT IV

THE STATE FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT THE DEFENDANT . . . OPERATED A MOTOR
VEHICLE UNDER THE INFLUENCE OF ALCOHOL; THE
DWI CONVICTION MUST BE REVERSED.

POINT V

THE EXISTENCE OF MEDICAL ISSUES AFFECTING
DEFENDANT'S ABILITY TO PERFORM THE WALK-AND-
TURN AND ONE-LEG-STAND TESTS RAISES REASONABLE
DOUBT AS TO THE ELEMENT OF BREATH TEST REFUSAL
REQUIRING PROBABLE CAUSE TO ARREST HIM FOR
DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL.




                      5                           A-5356-14T4
           POINT VI

           THE CARELESS DRIVING CONVICTION SHOULD BE
           REVERSED AS REASONABLE DOUBT EXISTS AS TO THE
           DEFENDANT['S] . . . GUILT; THERE WAS NO
           EVIDENCE AS TO ANY EFFECT ON OR DANGER TO
           OTHERS FROM THE MANNER IN WHICH [DEFENDANT]
           DROVE.

           POINT VII

           DEFENDANT WAS ENTITLED TO A JURY TRIAL IN
           LIGHT OF THE LEGISLATURE'S SHIFT,    WITH THE
           2004 AMENDMENTS TO N.J.S. 39:4-50, FROM
           REHABILITATION TO PUNISHMENT OF THIRD DWI
           OFFENDERS, COUPLED WITH THE POSSIBILITY OF
           JAIL IN EXCESS OF 180 DAYS AND THE IMPOSITION
           OF OTHER ONEROUS PENALTIES.

    We find insufficient merit in defendant's Points I, IV, V,

and VI, to warrant discussion in a written opinion. 3      R. 2:11-

3(e)(2).   We add the following brief comments concerning these

contentions.




3
   At oral argument, defendant's attorney waived defendant's
argument in Point VII that he was entitled to a jury trial on the
DWI charge.   See State v. Denelsbeck, 
225 N.J. 103, 107 (2016)
(holding that third or subsequent DWI offenders under 
N.J.S.A.
39:4-50 are not entitled to a jury trial), cert. denied, ___ U.S.
___, 
137 S. Ct. 1063, 
197 L. Ed. 2d 175 (2017). Therefore, there
is no need to address this point in this opinion. We also decline
to consider defendant's contention in Point II that three of the
attorneys he retained rendered ineffective assistance to him
during the course of this proceeding. State v. Rambo, 
401 N.J.
Super. 506, 525 (App. Div.) (noting that "[c]ontentions of
ineffective assistance of counsel are more effectively addressed
through petitions for post-conviction relief, at which point an
appropriate record may be developed") (citing State v. Preciose,

129 N.J. 451, 460 (1992)), certif. denied, 
197 N.J. 258 (2008).

                                 6                          A-5356-14T4
     Contrary to defendant's argument in Point I, the municipal

court judge exercised his sound discretion in denying defendant's

last-minute adjournment request on July 29, 2014, the day of trial.

State v. Hayes, 
205 N.J. 522, 538 (2011).      The matter had been

pending for ten months, and defendant had already obtained multiple

adjournments due to his alleged difficulties in retaining counsel.

Thus, the judge was well within his discretion to deny defendant's

request for yet another adjournment, this time to obtain an expert

who defendant's attorney stated was then on vacation.

     Defendant's Points IV, V, and VI also lack merit.    On appeal

from a Law Division decision, the issue is whether there is

"sufficient credible evidence present in the record" to uphold the

findings of the Law Division, not the municipal court.    State v.

Johnson, 
42 N.J. 146, 162 (1964).    "We do not weigh the evidence,

assess the credibility of witnesses, or make conclusions about the

evidence."   State v. Barone, 
147 N.J. 599, 615 (1997).    We give

due regard to the trial court's credibility findings.     State v.

Cerefice, 
335 N.J. Super. 374, 383 (App. Div. 2000).

     A DWI conviction may be based upon physical evidence, such

as symptoms observed by the arresting police officers or failure

of the defendant to perform adequately on balance and coordination

tests.   State v. Liberatore, 
293 N.J. Super. 580, 589 (Law Div.

1995), aff'd o.b., 
293 N.J. Super. 535 (App. Div. 1996).            A

                                 7                          A-5356-14T4
defendant's demeanor, physical appearance, slurred speech, and

bloodshot eyes, together with an odor of alcohol or an admission

of the consumption of alcohol and poor performance on field

sobriety tests, are sufficient to sustain a DWI conviction.                  State

v. Bealor, 
187 N.J. 574, 588-89 (2006).

       Here, defendant operated his car erratically, smelled of

alcohol, had watery eyes, exhibited boisterous behavior, admitted

to drinking, and failed both field sobriety tests.                   Thus, there

was   ample    evidence    in    the   record   supporting    defendant's       DWI

conviction beyond a reasonable doubt.

       Because     there   was    obviously     probable     cause    to    arrest

defendant for DWI under the totality of circumstances described

above, and he thereafter refused to submit to a chemical breath

test, we discern no basis for disturbing defendant's refusal

conviction under 
N.J.S.A. 39:4-50.2.             See State v. Marquez, 
202 N.J. 485, 503 (2012) (listing the elements that must be established

to    uphold   a   refusal      conviction).     Finally,     Officer      Cerro's

testimony that defendant veered from one lane to another, and

drove at least fifteen miles over the speed limit, provided more

than enough credible evidence to support defendant's conviction

for careless driving under 
N.J.S.A. 39:4-97.

       We now turn to defendant's Point III, where he asserts that

the municipal court judge improperly combined the trial on the

                                         8                                 A-5356-14T4
charges   and   his   motion    to   suppress          evidence    into   a    single

proceeding in violation of the principle that a judge should

conduct these matters separately.                 Judge Rahill rejected this

argument, finding that defendant's attorney "stipulated that the

testimony from the motion to suppress [would] be incorporated into

the trial."     Based on our review of the applicable case law as

applied to the facts of this case, we also reject defendant's

contention.

     Since at least 1989, the Municipal Court's Training Guide has

counselled municipal court judges not to incorporate the evidence

from a suppression motion into the trial record.                  State v. Gibson,


219 N.J. 227, 240-41 (2014) (citing State v. Allan, 
283 N.J. Super.
 622, 630 (Law Div. 1995) (holding that the better practice is to

conduct two separate proceedings unless both sides consent and

defense counsel is given wide latitude in cross-examining the

State's   witnesses)).         As   the       Court    explained    in    Gibson,     a

suppression hearing and a trial are governed by different rules

and have different purposes.              Id. at 241-42.           For example, a

suppression hearing determines whether certain evidence may be

excluded and the State may present hearsay evidence that would

otherwise be inadmissible at a trial.                 N.J.R.E. 104(a).

     Thus, the Court held that the two proceedings may only be

combined if both parties consent and the defense is granted the

                                          9                                   A-5356-14T4
opportunity to fully cross-examine the State's witnesses on all

issues raised.        Gibson, supra, 
219 N.J. at 248-49.        "Following

this procedure[,]" the Court found, "underscores the separate

nature of each proceeding, the limited scope of a suppression

motion,   and   the    different   standards   of   proof   governing   each

proceeding."     Id. at 245.        In cases where this rule was not

followed by the municipal court, the Court ruled that the matter

should be remanded for a new trial.        Id. at 249.4

     In Allan, defense counsel vehemently objected to having the

evidence adduced at the motion to suppress proceeding incorporated

into the trial.       Allan, supra, 
283 N.J. Super. at 628.      Moreover,

the municipal court judge did not permit defense counsel to cross-

examine a police officer at the trial concerning the officer's

testimony at the earlier suppression hearing.           Id. at 629.     As a

result, the Law Division found that the municipal court judge



4
  The parties each devote a portion of their briefs to a debate
over whether the Supreme Court's Gibson decision, which was
rendered less than two months after defendant's trial, should be
applied retroactively. As noted above, the general rule for over
twenty-five years has been that the motion to suppress hearing
should be conducted separately from a DWI or refusal trial. Allan,
supra, 
283 N.J. Super. at 630.     Moreover, prior to defendant's
trial, we had already issued our decision in State v. Gibson, 
429 N.J. Super. 456, 468 (App. Div. 2013), rev'd on other grounds, 
219 N.J. 227 (2014), which also criticized the practice of relying on
suppression hearing evidence in the trial on the merits of a DWI
matter without the parties' consent.      Thus, we will apply the
Gibson decision to the facts of this case.

                                     10                             A-5356-14T4
"infringed upon the defendant's constitutional right to confront

the witness against him" and remanded the matter for a new trial.

Ibid.

     Similarly,   in     Gibson,     a    motion     to   suppress      hearing    was

conducted prior to the trial.              Gibson, supra, 
219 N.J. at 233.

Immediately after the municipal court judge denied the defendant's

suppression    motion,    he   began      the    trial    and   incorporated      the

testimony from the suppression hearing into the trial record.                      Id.

at 234-35.    In doing so, the judge did not allow the defendant's

attorney to further cross-examine the police officer who had

earlier testified for the State at the suppression hearing.                        Id.

at 235.      Although the defendant's attorney did not object to

combining the motion to suppress record and the trial, he also did

not consent to proceeding in this fashion.                      Ibid.     The Court

therefore concluded that a new trial was necessary.                     Id. at 249.

     The facts of this case are in no way similar to those

presented in Gibson or Allan.            Here, the parties appeared on July

29, 2014, for the purpose of conducting a trial on the charges

pending against defendant. Although, on July 17, 2014, defendant's

newly-retained    attorney     had       filed   a   motion     to   suppress     "all

evidence seized as a result of a warrantless search that occurred

on" the day of defendant's arrest, the attorney did not bring this



                                         11                                  A-5356-14T4
motion to the municipal court judge's attention at the beginning

of the trial.

       Instead, defense counsel asked for an adjournment of the

trial to permit him to retain an expert to replace the one

defendant had previously engaged.            When the judge denied this

motion, the attorneys and the judge discussed the schedule for the

day.    After the judge confirmed with the court clerk that "[t]he

whole day" had been set aside for the trial, defendant's attorney

mentioned that one of his two experts would not be available until

noon.      At no time did defendant's attorney ask the judge to

consider a motion to suppress evidence.

       The judge then commenced the trial with the State presenting

the testimony of Officer Cerro. At the conclusion of the officer's

direct examination, defendant's attorney thoroughly cross-examined

him on all issues relating to the charges involved in the trial.

After   the   State   rested,      defendant's   attorney   presented     the

testimony of both of his experts.          Again, there was no mention of

a motion to suppress.

       After defendant rested, the judge asked, "Any motions by

anyone?"      In   response   to   that    standard   inquiry,   defendant's

attorney for the first time stated, "Your Honor, I filed a motion

to suppress which I think was really incorporated within the entire

trial[.]"     The judge responded by noting that defendant's motion

                                      12                             A-5356-14T4
was "really not timely[,]" but he would consider it.                The judge

then   found      that   Officer   Cerro   had   probable   cause    to   stop

defendant's car after he observed defendant speeding and driving

carelessly.       Therefore, the judge denied the motion to suppress

the evidence of alcohol use the officer observed after the motor

vehicle stop.

       The judge next asked defense counsel if there was "[a]nything

else" and the attorney stated, "Not in that regard, Your Honor,

no."    The judge then proceeded to render his findings on the

charges.

       Thus, this case is nothing at all like Gibson or Allan, where

the defendants were forced to have evidence adduced at an earlier

suppression hearing incorporated into the trial record without

their consent and without the opportunity to fully cross-examine

the witnesses on the charges themselves.             Unlike in those cases,

both parties were fully aware that a trial was going to be

conducted on July 29, 2014.          Defendant also had the opportunity

to fully cross-examine Officer Cerro on his reasons for stopping

defendant's car and the officer's observations after that stop all

the way through to defendant's refusal to submit to a chemical

breath test.

       The only reason there was any "combination" of the trial and

a   motion   to    suppress   here   was   because    defendant's    attorney

                                      13                              A-5356-14T4
belatedly asked the judge to consider a motion to suppress at the

very   end   of    the   trial.   Clearly,   the   judge's   decision    to

accommodate defendant's late motion did not implicate any of the

concerns that led the Gibson court to prohibit the use of testimony

and evidence presented at a pre-trial suppression hearing at a

later trial on the merits.         Therefore, we reject defendant's

arguments on this point.

       Affirmed.




                                   14                             A-5356-14T4