Date: 04-04-2016

Case Style: STATE OF NEW JERSEY VS. LAWRENCE CLEAVER

Case Number: A-0919-14T3

Judge: Jack M. Sabatino, Karen L. Suter

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Fredric M. Knapp, Paula Jordao

Defendant's Attorney: Albert P. Mollo

Description: Defendant appeals from his conviction of driving while
intoxicated ("DWI"), N.J.S.A. 39:4-50. He was found guilty of
that offense in a trial in the municipal court, a result which
was sustained on de novo review in the Law Division.
Defendant's essential claim on appeal is that the Law Division's
de novo review of his municipal conviction was unduly delayed
and that he was thereby deprived of his right to a speedy trial.
We affirm.
The record shows that on August 28, 2011, defendant went
out for a drive in his pickup truck in the midst or aftermath of
Hurricane Irene. He encountered flood waters on the local
streets in Pequannock Township and his vehicle stalled and began
to float. He was rescued from the roof of his floating truck
after a neighbor recognized him and called 9-1-1. The rescuers
observed that defendant had a strong odor of alcohol, bloodshot
eyes, and displayed other signs of intoxication. Defendant
admitted to drinking five beers between 8:00 p.m. and 10:00 p.m.
that evening. After defendant failed several field sobriety
tests, he was arrested and provided a breath sample that
measured .16 blood alcohol content, over the legal limits.
Defendant moved before the municipal court to suppress the
breath test results. The municipal judge denied suppression.
The judge considered the proofs during the course of two
intermittent trial days in December 2011 and January 2012 and
found defendant guilty of DWI, both under the per se standard
and based on the field observations.
Defendant was sentenced to a nine-month loss of his
driver's license and other penalties and consequences. His
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sentence was stayed pending appeal. The judgment of conviction
in the municipal court was entered on January 9, 2012.
On January 26, 2012, defendant filed a de novo appeal with
the Law Division. Among other things, he argued that he had
been deprived of discovery on the Alcotest "return and repair"
forms from the manufacturer. The county prosecutor got involved
and filed a motion with the Superior Court to supplement the
record with the return and repair forms. Evidently the
municipal prosecutor disagreed with the county prosecutor's
willingness to provide the discovery, which led to some of the
delay that is involved here. The Law Division judge who was
then handling the case granted the State's motion to supplement
the record.
On July 31, 2012, the Law Division remanded the matter back
to the municipal court for an evidentiary hearing to determine
the admissibility of the Alcotest return and repair records and
to evaluate whether they satisfied the business record hearsay
exception under N.J.R.E. 803(c)(6).
On December 10, 2012, the municipal judge on remand
conducted a hearing, at which the municipal prosecutor declined
to join in the county prosecutor's application to supplement the
record. Shortly thereafter, on December 27, 2012, defendant
filed his second notice of appeal with the Law Division seeking
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review of the municipal judge's determination that the Alcotest
return and repair log was admissible hearsay. A briefing
schedule was then established. Defense counsel expressed his
understanding that the Law Division would be remanding the case
back again to the municipal court. The State objected to the
remand.
There was apparently no activity in the case for nearly a
year from about May 2013 until May 20, 2014. On that day, the
parties appeared before the Law Division for a status
conference. At the conference, defendant raised the speedy
trial issue for the first time. Thereafter, on September 9,
2014, the Law Division judge conducted a trial de novo. The
judge found defendant guilty of DWI based solely on the
observations of his conduct and not relying on the Alcotest
results, which she suppressed.
Defendant argued before the Law Division that he had been
deprived of his right to a speedy trial, principally citing the
United States Supreme Court's seminal opinion in Barker v.
Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) and
the New Jersey Supreme Court's opinion in State v. Cahill, 213
N.J. 253 (2013) (applying the Barker v. Wingo factors to a DWI
prosecution).
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The Law Division judge examined all of the pertinent Barker
factors and issued a written statement of reasons ruling that
defendant had not been deprived of his right to a speedy trial.
Although the judge recognized that some of the delay in
completing the de novo review was attributable to the State, on
balance the defendant had not shown sufficient prejudice to
compel relief, or any deliberate motive by the government to
deprive him of his rights.
On appeal, defendant presents the following arguments for
our consideration:
POINT I: DEFENDANT-APPELLANT WAS DENIED A SPEEDY TRIAL
A. Length of the Delay B. Reasons for the Delay C. Assertion of Right to a Speedy Trial D. Prejudice to the Defendant
POINT II: THE TRIAL JUDGE DENIED DEFENDANTAPPELLANT'S RIGHT TO A PRESUMPTION OF INNOCENCE
POINT III: THE STATE HAS NOT PROVEN VIOLATION OF N.J.S.A. 39:4-50 BEYOND A REASONABLE DOUBT
A. The State did not Prove Intoxication Beyond a Reasonable Doubt B. The State did not Prove Operation Beyond a Reasonable Doubt
POINT IV: DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL
A-0919-14T3 6
Having fully considered these arguments, we affirm defendant's
conviction, substantially for the sound reasons expressed in the
Law Division's comprehensive written statement of reasons. We
add only a few observations.
We must first highlight that defendant does not claim that
he was deprived of a speedy trial in the municipal court. Nor
could he reasonably make such an assertion given the short
interval between his arrest in late August 2011 and his
municipal trial which began in December 2011. His focus instead
is upon the delay that transpired after he appealed his
municipal conviction to the Law Division and the Law Division's
ultimate disposition of that appeal on de novo review in
September 2014.
We are mindful that our case law has recognized that not
only does a DWI defendant have a right to a speedy trial of the
charges in the municipal court, but the defendant also should
not be unduly delayed in obtaining the Law Division's de novo
review if he is convicted by the municipal judge. State v.
Misurella, 421 N.J. Super. 538, 544 (App. Div. 2011); State v.
LeFurge, 222 N.J. Super. 92, 98 (App. Div.), certif. denied, 111
N.J. Super. 568 (1988). Defendant claims that the operative
delay here is the two years, eight months, and eight days from
the date of his arrest to the date defendant was first notified
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of the May 2014 status conference, while the State focuses
instead on the nearly twenty-one-month delay from defendant's
second notice of appeal in December 2012 until the status
conference.1 Regardless of which starting date is chosen for the
analysis, we agree with the Law Division judge that defendant
has not demonstrated that his interests in a speedier
disposition of his de novo appeal were sufficiently curtailed to
justify the vacature of his conviction.
The four well-established factors identified in Barker for
speedy trial analysis are: "[1] [the] [l]ength of delay, [2]
the reason for the delay, [3] the defendant's assertion of his
right, and [4] [the] prejudice to the defendant." Barker,
supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117.
"The [Barker] Court regarded none of the four factors as either
a necessary or sufficient condition to the finding of a
deprivation of the right to a speedy trial. Rather, they were
to be treated as related factors to be considered with such
other circumstances as may be relevant." State v. Szima, 70 N.J.
196, 201 (1976). Put another way, since the factors are
related, none are determinative and even the absence of one or
1 A third possibility not advocated by either party is to use the May 14, 2013 filing date of defendant's amended second notice of appeal.
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more does not exclude a finding that a defendant's rights were
violated. See Cahill, supra, 213 N.J. at 267.
We are satisfied that the Law Division did not misapply
these Barker factors in its detailed decision. Although the
delay in completing the de novo review process in the Law
Division was uncommonly lengthy here, there were extenuating
circumstances, including the need to remand this matter for a
period of time to the municipal court on the hearsay issue
relating to suppression. There was also some degree of
uncertainty that all parties apparently shared about whether the
municipal court or the Law Division was exercising jurisdiction
at certain times, and what the next procedural step would be.
We find it particularly significant that there is no indication
that defendant took any action between his correspondence to the
court about the case in May 2013 and the May 2014 conference to
seek the Law Division's attention to the continued pendency of
the unresolved appeal.
Moreover, as the Law Division judge noted, "there is no
evidence that the State attempted to delay the case in order to
hamper the defense." In addition, she also astutely observed
that "rather than challenge the adequacy of the State's evidence
in a trial de novo, the remand issue was prolonged when
defendant filed a new appeal of the municipal court's ruling."
A-0919-14T3 9
Although we agree with the Law Division judge that the
unexplained subsequent twelve-month delay between May 2013 and
May 2014 was unreasonable and weighs in defendant's favor, on
the whole he has not demonstrated entitlement to relief under
the Barker factors when considered in their entirety.
In Misurella, we concluded that a delay of twenty-seven
months in adjudicating that defendant's de novo appeal did not
require his DWI conviction to be set aside, despite the fact
that a substantial portion of that delay was attributable to the
State. Misurella, supra, 421 N.J. Super. at 544-45. Here, as
in Misurella, defendant did not assert his right to a speedy
trial until late in the process and during that time period his
loss of driving privileges was stayed. Moreover, defendant,
like the defendant in Misurella, has failed to demonstrate that
he was prejudiced by the delay in awaiting de novo review. As
we noted in Misurella, "[t]he 'hardship' of waiting for
disposition of [defendant's] appeal [de novo], standing alone,
'is insufficient to constitute meaningful prejudice.'" Id. at
546 (citing LeFurge, supra, 222 N.J. Super. at 99-100).
As to defendant's secondary argument that the evidence of
his guilt of DWI was insufficient, we agree with the State that
defendant's manifest signs of intoxication when he was extracted
from his floating truck, coupled with his admission of drinking
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five beers that evening, are ample to sustain the conviction.
Defendant was observed by an eyewitness operating his truck
before it stalled, attempting to make a left hand turn onto
Greenwood Avenue. The municipal judge found that eyewitness to
be credible, and we defer to that credibility finding. State v.
Locurto, 157 N.J. 463, 474 (1999). The direct and
circumstantial evidence of operation of the truck, in violation
of N.J.S.A. 39:4-50, is more than sufficient here. The remainder of defendant's arguments lack sufficient
merit to discuss in this opinion.

Outcome: Defendant's conviction is affirmed. Any stay of penalties
or of the suspension of his driving privileges that may remain
in place shall expire automatically within twenty days of this
opinion.

Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: