STATE OF NEW JERSEY v. JEANNETTE M. BRADBURY

NOT FOR PUBLICATION WITHOUT THE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-5140-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JEANNETTE M. BRADBURY,

     Defendant-Appellant.
___________________________

                   Argued September 22, 2021 – Decided October 1, 2021

                   Before Judges Mayer and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Municipal Appeal No. 17-22.

                   Matthew W. Reisig argued the cause for appellant
                   (Reisig Criminal Defense & DWI Law, LLC, attorneys;
                   Matthew W. Reisig, on the brief).

                   Cheryl L. Hammel argued the cause for respondent
                   (Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney; Samuel Marzarella, Chief Appellate Attorney,
                   of counsel; Cheryl L. Hammel, Assistant Prosecutor, on
                   the brief).

PER CURIAM
      Defendant Jeannette M. Bradbury appeals from a June 14, 2019 Law

Division order denying a petition for post-conviction relief (PCR) based on her

conviction for driving while intoxicated (DWI) after a de novo review of the

record from the municipal court proceeding in accordance with Rule 3:23-8. We

affirm.

      We recite the facts relevant to defendant's PCR petition. During the

municipal court trial, the arresting officer, Sergeant James F. Sharkey, Jr.,

testified. According to Sharkey, on October 20, 2011, he stopped defendant's

car after observing her driving erratically. When Sharkey asked for defendant's

driving credentials, he detected an odor of alcohol. Defendant admitted she had

one drink prior to getting into her car. The sergeant then asked defendant to

perform several field sobriety tests, including the horizontal gaze nystagmus

test, walk-and-turn test, and one-legged stand test.   According to Sharkey,

defendant performed poorly on all three tests. Based on his observations and

defendant's inability to successfully complete the sobriety tests, the sergeant

arrested defendant for DWI.

      After being taken to the police station and given her Miranda rights,

defendant volunteered she consumed five drinks prior to driving. She agreed to

submit to an Alcotest at the police station.


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      Prior to the municipal court trial, counsel agreed the results of the Alcotest

would not be scientifically reliable and, therefore, trial evidence would be based

on the psychophysical tests only and Sergeant Sharkey's testimony.

      Defendant testified before the municipal court judge. She claimed the

sergeant's testimony was flawed and the events were not as he testified.

However, defendant admitted telling Sergeant Sharkey she consumed a gin and

tonic prior to driving and knew the officer was following her car. She testified

to fumbling for her inhaler at the time, causing it to appear she was driving

erratically.

      The municipal court judge found Sergeant Sharkey's testimony credible

because the sergeant had conducted more than 200 drunk driving arrests and had

significant training and experience identifying individuals who exhibited signs

of driving under the influence. On the other hand, the municipal court judge did

not find defendant's version of the events credible.

      Based on Sergeant Sharkey's testimony, the municipal judge found

defendant guilty of DWI, her second such conviction. She was sentenced to two

years loss of driving privileges, two years ignition interlock, thirty days

community services, and related monetary penalties and fines. The municipal

judge also sentenced defendant to jail time.


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        On January 3, 2017, almost five years after her second DWI conviction,

defendant filed a PCR petition before the municipal court judge. 1            She

subsequently filed an amended PCR petition on June 28, 2017. In support of

her petition, defendant filed an affidavit expressing her belief that "an expert

witness at the time of trial would have resulted in an acquittal of her DWI." She

claimed to have paid for an expert but said the expert did not testify during the

municipal court proceeding. In addition, she contended no one told her the

public defender could apply for funding in municipal court to pay for an expert

on her behalf.

        On July 26, 2017, the municipal court judge denied the PCR petition. He

found the public defender could have applied for money to retain an expert and

the municipality would have been obligated to pay for the expert. However, the

municipal court judge based his decision on the observations of Sergeant

Sharkey and the judge's evaluation of the credibility of the witnesses at the time

of trial. The municipal court judge concluded there was nothing "an expert

witness could have [ ] supplied in a trial that would have changed the [c]ourt's

determination as to the observations that were made by the officer and that the

[c]ourt relied upon . . . in convicting [defendant] of driving while intoxicated."


1
    She did not file a direct appeal challenging the DWI conviction.
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Thus, he determined the availability of publicly available funds for defendant to

retain an expert was irrelevant and "there [was] no demonstration that there was

any prejudice to [defendant] whatsoever, because the [c]ourt's determination

was made based on the testimony supplied."

      Defendant filed a municipal appeal from the denial of her PCR petition.

She then moved to change venue from Ocean County. In seeking a change in

venue, defendant asserted there was a conflict of interest involving the Ocean

County Prosecutor's office (OCPO) because one of her assigned public

defenders was currently employed by the OCPO and her other assigned public

defender was employed as a domestic violence hearing officer for the Ocean

County Superior Court.

      The Law Division judge denied the request for a change of venue. The

judge found no conflict of interest because defendant's original public defender

"could effectively be screened from participation in [d]efendant's PCR" and the

current employment of defendant's second public defender "would have no

bearing on the Ocean County Prosecutor's Office objective responsibility of

handling this matter."

      A different Law Division judge was assigned to handle defendant's

municipal appeal from the denial of her PCR petition. He conducted a trial de


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novo on May 29, 2019. In a six-page written decision, the Law Division judge

found defendant met the first prong in support of her ineffective counsel claim.

He agreed "the public defenders should have made a request to the municipal

court for funds to allow [d]efendant to retain an expert to render a written

opinion and to testify at trial."    However, the Law Division judge found

defendant failed to satisfy the second prong in support of her ineffective

assistance of counsel claim. In denying defendant's PCR petition, the Law

Division judge wrote,

            [T]he "but for" prong cannot be met by [d]efendant.
            Defendant's claim rests on demonstrating that had
            funding for an expert witness been obtained and that
            expert testified at trial, the outcome would have
            resulted in an acquittal, not a conviction. The facts of
            this case simply do not support that conclusion. This
            case did not involve [a motor vehicle recording] and the
            Alcotest results were stipulated [to be] unreliable at the
            outset of trial. Defendant was convicted based solely
            on the observations made by Sergeant James Sharkey
            during the motor vehicle stop and the administration of
            the field sobriety tests.

      Regarding credibility, the Law Division judge found Sharkey's testimony

credible. However, he found "[d]efendant's testimony to be entirely incredible.

Defendant's testimony stretched credulity beyond the breaking point."

      The Law Division judge also determined to acquit defendant "an expert

would have had to opine rebutting or undermining Sharkey's testimony in its

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entirety." Given Sergeant Sharkey's "extensive experience and training, his

credibility in this matter, [d]efendant's unsatisfactory performance regarding the

[field sobriety tests] and [d]efendant's entirely incredible testimony, the [c]ourt

finds no expert would have been able to render an opinion to secure an

acquittal." Consequently, the judge concluded defendant's PCR petition failed

to satisfy the second prong of the State v. Fritz 2 test and defendant could not

prevail on her ineffective assistance of counsel claim.

       On appeal, defendant raises the following arguments:

       Point I

             DEFENDANT'S PCR TRIAL DE NOVO SHOULD
             HAVE BEEN GRANTED BY THE LAW DIVISION
             BELOW DUE TO THE UNPRECEDENTED
             COMBINED EFFECTS OF TWO DIFFERENT
             MUNICIPAL PUBLIC DEFENDERS DIRECTY
             CONTRAVENING THE EXPRESS DICTATES OF
             THE MUNICIPAL PUBLIC DEFENDER'S ACT
             PERTAINING    TO   EXPERT    ANCILLARY
             SERVICES IN CONJUNCTION WITH THE
             MUNICIPAL COURT'S DIRECT KNOWLEDGE OF
             SAME, AND ACQUIESENCE TO SAME, WHICH
             CONSTITUTED AN EGREGIOUS VIOLATION OF
             BOTH HER PROCEDURAL AND SUBSTANTIVE
             DUE PROCESS RIGHTS AFFORDED UNDER THE
             UNITED STATES CONSTITUTION AND NEW
             JERSEY CONSTITUTION, RESPECTIVELY.



2
     105 N.J. 42, 53-58 (1987).
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Point II

      THE LAW DIVISION SHOULD HAVE GRANTED
      DEFENDANT AN EVIDENTIARY HEARING
      DURING THE PCR TRIAL DE NOVO SINCE BOTH
      THE LETTER MEMORANDUM IN SUPPORT OF
      HER PCR AND THE ORAL ARGUMENT
      ADVANCED DURING THE TRIAL DE NOVO
      ITSELF CLEARLY SATISFIED THE THREE
      FACTORS ENUNCIATED IN STATE v. PORTER TO
      REQUIRE SAME.

Point III

      THE FACT THAT THE LAW DIVISION JUDGE
      WHO PRESIDED OVER DEFENDANT'S PCR
      TRIAL DE NOVO WORKED PREVIOUSLY IN THE
      SAME VICINAGE ASSIGNED TO THE FAMILY
      PART AND PRESIDED OVER CONTESTED FINAL
      RESTRAINING ORDER (FRO) HEARINGS AT THE
      SAME TIME THAT MUNICIPAL PROSECUTOR
      [TWO] WORKED IN THE SAME FAMILY PART AS
      A DOMESTIC VIOLENCE HEARING OFFICER
      CONSTITUTED AN APPEARANCE OF A
      CONFLICT   OF    INTEREST   SUCH   THAT
      DEFENDANT'S NOTICE OF MOTION FOR
      CHANGE OF VENUE REGARDING HER PCR
      TRIAL DE NOVO SHOULD HAVE BEEN
      GRANTED BELOW. THIS IS PARTICULARLY SO
      SINCE THE UNDERLYING PCR TRIAL DE NOVO
      WAS    SPECIFICALLY    ALLEGING    THAT
      MUNICIPAL PROSECUTOR [TWO] COMMITTED
      INEFFECTIVE ASSISTANCE OF COUNSEL IN THE
      VERY MATTER PENDING BEFORE THE LAW
      DIVISION.




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      "[A]ppellate review of a municipal appeal to the Law Division is limited

to 'the action of the Law Division and not that of the municipal court.'" State v.

Hannah,  448 N.J. Super. 78, 94 (App. Div. 2016) (quoting State v. Palma,  219 N.J. 584, 591-92 (2014)). "In reviewing a trial court's decision on a municipal

appeal, we determine whether sufficient credible evidence in the record supports

the Law Division's decision." State v. Monaco,  444 N.J. Super. 539, 549 (App.

Div. 2016). We must "determine whether the findings made could reasonably

have been reached on sufficient credible evidence present in the record." State

v. Johnson,  42 N.J. 146, 162 (1964). "When the reviewing court is satisfied that

the findings and result meet this criterion, its task is complete and it should not

disturb the result . . . ." Ibid.

      We first consider defendant's argument she established a prima case of

ineffective assistance of counsel and, therefore, was entitled to an evidentiary

hearing. We disagree.

      Here, defendant was not entitled to an evidentiary hearing because she

was unable to establish a prima facie case of her ineffective assistance of counsel

by satisfying both prongs of the analysis under Strickland v. Washington,  466 U.S. 668 (1984) and Fritz. See State v. Preciose,  129 N.J. 451, 462-63 (1992).

The two-part test governing an ineffective assistance of counsel claim required


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defendant to show the performance of her public defender was so deficient as to

violate her right to counsel. Fritz,  105 N.J. at 52 (quoting Strickland,  466 U.S.

at 687). The second prong of the Fritz test required defendant to demonstrate

"but for" the ineffective assistance of her public defender the outcome of the

trial would have been different. Ibid. (quoting Strickland,  466 U.S. at 694).

      The Law Division judge found defendant met the first prong because her

public defender failed to apply to the municipal court for public funds to retain

an expert to testify at trial on defendant's behalf. However, to prevail on an

ineffective assistance of counsel claim, defendant must satisfy both prongs. The

Law Division judge determined "defendant made only a bald assertion that if a

defense expert witness testified, [d]efendant would have been acquitted" and

such a "bald assertion is not sufficient to meet the requirements of the 'but for'

prong of the Fritz analysis." See State v. Cummings,  321 N.J. Super. 154, 170

(App. Div. 1999).

      Further, the Law Division judge concluded the "but for" prong could not

have been met even if defendant had an expert because her conviction was based

on Sergeant Sharkey's observations and the results of the field sobriety tests.

Defendant failed to proffer what evidence, if any, an expert would have

presented to overcome the credible testimony of Sergeant Sharkey regarding his


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observations of defendant and her poor performance on each of the administered

field sobriety tests.

      Defendant's remaining arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-(3)(e)(2).

      Affirmed.




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