July 22, 2011

STATE OF NEW JERSEY V. MARTINEZ A-4351-09T3 May 12, 2011



DOCKET NO. A-4351-09T3






May 12, 2011

Submitted April 12, 2011 - Decided

Before Judges Baxter and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 78-2009.

Antonio J. Toto, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).


Defendant Jesse Martinez appeals from a May 12, 2010 Law Division judgment of conviction entered following a de novo trial based upon the record of proceedings in the East Brunswick Municipal Court. The Law Division found defendant guilty of driving while intoxicated (DWI),N.J.S.A. 39:4-50. Because the Law Division reached that result based on a misapprehension that it was obliged to defer to the decision of the municipal court, rather than conduct an independent assessment of the record, we reverse defendant's conviction and remand for further proceedings.


Defendant stipulated in both the municipal court and in the Law Division that his sole challenge to the State's proofs on the DWI charge was whether the East Brunswick Police Department had observed him for the twenty minutes required by State v. Chun, 194 N.J. 54, 129, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed.2d 41(2008), before administering the Alcotest. We therefore confine our discussion accordingly. At the trial in the municipal court, the State presented the testimony of Officer Wade Gordon, who was first certified in 2004 to administer the Alcotest, and who was recertified in 2006 and in 2008. Because Gordon is the one of the few police officers in the East Brunswick Police Department so certified, he is on call twenty-four hours per day to perform the test; and has administered the Alcotest approximately 150 times over the years since the Alcotest has been in effect.

Gordon explained that if he is called by an arresting officer and asked to perform the Alcotest, the arresting officer will already have the suspect handcuffed to the bench in the booking room at police headquarters by the time Gordon arrives. He described his standard procedure as follows, "I'll check their oral cavity and make sure there's no gum or any other object in the mouth and then just observe them for 20 minutes to make sure that they don't belch." After the twenty minutes has elapsed, he "take[s] them into the Alcotest room and administer[s] the tests."

In the case of defendant Martinez, Gordon was called to headquarters on May 10, 2008 by the arresting officer, Patrolman Unkel, to administer the Alcotest. When Gordon arrived at police headquarters, defendant was already "on the bench in the booking room and [he] checked [defendant's] mouth and . . . observed him for 20 minutes." Gordon noted that defendant's "oral cavity was clear." According to Gordon, he stood facing defendant "face to face" from six feet away while defendant was seated on the bench. Once the twenty-minute period had elapsed without defendant belching or doing anything else that would run afoul of the twenty-minute waiting period required by State v. Chun, Gordon uncuffed defendant from the bench and instructed defendant to walk in front of him into the Alcotest room. Gordon explained that he was "able to observe him" during the time that the two were walking the short distance to the Alcotest room.

On cross-examination, Gordon conceded that he did not include in his police report the time defendant was arrested, the time defendant was brought to headquarters by Patrolman Unkel or the time that the Alcotest began. He also conceded that he had not noted in his report that he observed defendant for twenty minutes before beginning the test. When asked by the prosecutor why he had not included his twenty-minute observation of defendant in his report, Gordon stated "[i]t's just a standard procedure that is done every time I run the breath test[.] [T]hat's why it's maybe not indicated on there." In answer to the prosecutor's question, "Is it something that's so standard at this point that you don't feel the need to actually record it," Gordon answered "[t]hat is correct." Gordon explained that defendant was arrested at 2:30 a.m., after which Unkel had, according to a document signed by Unkel, administered Miranda1 warnings to defendant at 3:00 a.m. in the booking room, and the Alcotest was started at 3:22 a.m.

Defendant testified, asserting that he was handcuffed to the bench in the booking room for "close to an hour" and he could hear Unkel and Gordon in another room engaged in "a lot of small talk . . . mostly about their weightlifting." Defendant maintained while he was in the booking room for that period of time, he could not see Gordon and Gordon could not see him. At the end of an hour, Gordon came in, released him from the handcuffs and brought him into the room where the breath test was performed. He maintained that neither officer had conducted any face-to-face observation of him before the Alcotest began, much less for the twenty minutes that Gordon claimed.

On cross-examination, defendant stated that the roadside sobriety tests were completed at 3 o'clock, the ride back to headquarters consumed fifteen minutes, five minutes elapsed from the time he and Patrolman Unkel arrived at police headquarters before Unkel handcuffed him to the bench, and he was seated on the bench for "about an hour" before the breath test began. He agreed that his timetable "would bring you to around 4:15." When confronted with the fact that the Alcotest was administered at 3:22 a.m., and his own time estimates would have caused the test not to begin until 4:15 a.m., defendant stated that he did not actually know whether the Alcotest began at 3:22 a.m., as Gordon had claimed. Defendant asserted that the test began much later, although he admitted he was not wearing a wrist watch and had no method of determining the actual times.

At the conclusion of defendant's testimony, the State recalled Officer Gordon, who reiterated that it was his "normal procedure" to stand next to the suspect seated on the bench and watch him continuously for twenty minutes, which he had done in this case. When asked by the judge whether any of the 150 Alcotest reports he had prepared in the past state whether he watched the suspect for the required twenty minutes, Gordon answered no.

At the conclusion of the testimony, the municipal court judge summarized the testimony in considerable detail, after which he reached the following conclusions:

All right. What I have here is I have, Mr. Martinez, I think you're a fine young man. I think that your times are way off. I don't think it's possible that you were brought there and sat there for that time and it was given at 4:30 yet every document prior to that was at 3:30.

There are too many people putting down the times for you to be correct in your analysis. So I understand that when you're sitting back there you're going through a lot and it's a nervous time and probably it seems like an hour[,] but could be a very short time.

And I believe Officer Gordon when he says he observed you for 20 minutes. And it certainly is possible if he said he saw the Miranda warnings being given at 3:00 and then brought you in at 3:22, that makes total sense to me.

And that 22 minute issue, I believe that Officer Gordon did observe 22 minutes at least prior to your [A]lcotest and therefore your motion to suppress the [A]lcotest reading based upon the failure to observe for 20 minutes is denied.

Defendant stipulated that there was probable cause to arrest him on the DWI charge, and he also stipulated to the admission in evidence of the twelve "foundational documents" required by State v. Chun. After the State reserved its right to present testimony about the field sobriety tests if defendant's conviction were to be reversed on appeal,2 the judge sentenced defendant, imposing appropriate fines and penalties, suspending defendant's driving privileges for a period of three months,3 and requiring him to serve twelve hours in the Intoxicated Drivers Resource Center.

Defendant appealed his conviction to the Law Division. The proceedings on May 12, 2010 were brief, with neither attorney presenting any oral argument. Instead, the judge made the following findings of fact and conclusions of law, which we quote in their entirety:4

Jesse Martinez filed a municipal appeal and the appeal number is 78-2009. It was a municipal appeal out of East Brunswick Municipal Court. I looked at the transcripts and I can understand [defense counsel's] frustration as to what happened in Municipal Court especially since the new term of art in [Alcotest] cases have [sic] to do with 20 minute observation. That term of art was brought to the legal community's attention in theState v. Chun. Draeger5 when they made and manufactured the machine required a 20 minute observation so [defense counsel] found . . . the police officer's testimony to be less than credible especially since that word of art "20 minute observation" really wasn't in anybody's world in Municipal Court but it was in everybody's world with regard to the manufacturer's requirements of a police officer when performing the [Alcotest] and so I had denied the appeal.

I'm bound by the record below and it would seem that the judge below, [name of municipal court judge], found the officer to be credible on that point and the judge below found that 20 minute observation period had been conducted in accordance with the 20 minute rule so [defense counsel] filed the appeal and I gave a lot of consideration but based upon my function as a Superior Court judge reviewing the Municipal Court matter, I denied his application[.]

[(Emphasis added).]

On appeal, defendant raises the following claim:



Rule 3:23-8(a) provides for a de novo review on the record

when a municipal court conviction is appealed to the Law Division:

[T]he trial of the appeal shall be heard de novo on the record unless it shall appear that the rights of either party may be prejudiced by a substantially unintelligible record or that the rights of defendant were prejudiced below in which event the court to which the appeal has been taken may either reverse and remand for a new trial or conduct a plenary trial de novo without a jury.

A judge in a trial de novo must "make his own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197(1983). See also State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000);State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). "His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function in respect of defendant's guilt or innocence." Ross, supra, 189 N.J. Super. at 75.

Because the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472 (1999). However, the Law Division judge "need . . . give only due, although not necessarily controlling, regard to the opportunity of the municipal court judge to judge the credibility of the witnesses." Ross, supra, 189 N.J. Super.at 75. This is because the function of the Law Division is not "governed by the substantial evidence rule but rather [it engages in] an independent fact-finding function in respect of defendant's guilt or innocence." Ibid.(citing State v. States, 44 N.J. 285, 293 (1965); State v. Johnson, 42 N.J. 146, 157 (1964)).

By comparison, "when a defendant appeals from a judgment of [the Law Division] on an appeal from a municipal court, the appellate court will consider only the action of the [Law Division] and not that of the municipal court." State v. Joas, 34 N.J. 179, 184 (1961). Our review analyzes only whether there was sufficient credible evidence to uphold the decision of the Law Division. Johnson, supra, 42 N.J. at 162. We owe the Law Division's legal conclusions no deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, the Law Division judge appears not to have analyzed the record from the municipal court to make the independent findings of fact required by State v. Ross. Instead, the Law Division judge considered himself obligated to accept the factual findings of the municipal court judge whether he agreed with those findings or not, as evidenced by his statement that "the judge below found that 20 minute observation period had been conducted . . . but based upon my function as a Superior Court judge reviewing the Municipal Court matter I denied his application."

Because defendant's conviction in the Law Division is based upon a misapprehension of the applicable standard of review before that court, we vacate defendant's conviction and remand for further proceedings consistent with the principles discussed in this opinion. Jurisdiction is not retained.

Reversed and remanded.

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

2 We express no opinion on whether the State would be entitled to such a second trial.

3 Defendant's Alcotest reading was .09.

4 We note that defense counsel referred briefly to the judge having made comments on the record "last time." Because only the proceedings of May 12, 2010 have been transcribed, we asked both counsel whether there had been any other proceedings in the Law Division. Both assured us there had not.

5 The judge's reference to "Draeger" was to the manufacturer of the Alcotest machine, Draeger Safety Diagnostics, Inc.

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