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Date: 06-02-2016

Case Style: STATE OF NEW JERSEY VS. ARTHUR RYAN KUREK

Case Number: A-5839-13T3

Judge: Michael Haas

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: O. Nicholas Monaco, Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor

Defendant's Attorney: John Menzel

Description: Defendant Arthur Ryan Kurek appeals from his convictions
and sentences for refusal to submit to an Alcotest in violation
of N.J.S.A. 39:4-50.2 and reckless driving in violation of
N.J.S.A. 39:4-96 following trial de novo in the Law Division.
Defendant asserts he was denied a speedy trial, not informed of
all material consequences resulting from a refusal to submit to
an Alcotest; and the State presented insufficient evidence to
support a conviction for reckless driving. Additionally,
defendant seeks reversal of the license suspension imposed for
the reckless driving conviction. For the reasons that follow,
we affirm defendant's convictions and remand for resentencing on
his reckless driving conviction.
We discern the following facts and procedural history from
the record. On January 16, 2011, Daniel Moeller was driving
home from a Boy Scout function when he observed defendant's
vehicle driving erratically hitting snow banks on the side of
the Garden State Parkway, swerving into different lanes, and
ultimately bumping another car twice in the Toms River toll
plaza. Moeller called 9-1-1 and reported the incident.
Defendant then pulled over to the side of the toll plaza, exited
the vehicle, and "stumbled to the ground."
Moeller also pulled over and could smell alcohol emanating
from defendant as he laid on the ground. According to Moeller,
defendant "appeared to be very inebriated." Defendant's speech
was slurred and he "could not walk really on his own."
Thereafter, the police arrived and arrested defendant.
A-5839-13T3 3
Defendant was later asked to perform an Alcotest which he
refused to do.
Prior to his refusal, defendant was read the "standard
statement" regarding potential consequences of refusing to
submit to an Alcotest. These pertinent provisions of the
standard statement were read to defendant:
8. According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months, but no more than 20 years. The Court will also fine you a sum of no less than $300, and no more than $2,000 for your refusal conviction.
9. Any license suspension or revocation for a refusal conviction may be independent of any license suspension or revocation imposed for any related offense.
10. If you are convicted of refusing to submit to chemical tests of your breath, you will be referred, by the Court, to an Intoxicated Driver Resource Center, and you will be required to satisfy the requirements of that Center in the same manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for your failure to do so.
Defendant was then charged with driving while intoxicated,
N.J.S.A. 39:4-50 (DWI), refusing to submit to a breath test,
N.J.S.A. 39:4-50.2 (refusal), and reckless driving, N.J.S.A.
39:4-96.
A-5839-13T3 4
The parties appeared in municipal court over the span of
nine hearings from April 6, 2011 through January 27, 2014.
Defendant was represented by three different attorneys at
various points in the litigation. The delay in proceeding to
trial was largely based on defense counsel's continued
adjournment requests, seeking time to acquire additional
discovery outside the possession of the prosecutor. The
prosecutor repeatedly informed defense counsel that all
available discovery was provided. Moreover, the court permitted
adjournments for defense counsel to pursue his OPRA request for
video recordings of the Toms River toll plaza from the New
Jersey Turnpike Authority. The trial began on April 10, 2013,
with Moeller's testimony, but was not concluded.
On January 27, 2014, defendant entered a guilty plea for
refusal. The municipal court judge accepted defendant's plea
and granted the State's motion for a directed verdict of not
guilty for the DWI charge. The judge also found defendant
guilty of reckless driving, noting defendant drove
erratically; . . . hit snowbanks; . . . crossed over all three lanes of traffic on the [p]arkway . . . ; rear-ended a vehicle in front of him [at the toll plaza], not once, but twice hit that same vehicle; that all of that in combination, together with . . . [defendant] also smell[ing of] alcohol . . . ; [and] apparently [defendant] did a face-plant on the sidewalk.
A-5839-13T3 5
Defendant was thereafter sentenced on the refusal
conviction to seven months of license suspension and a
subsequent six months with an ignition interlock device, fines
and penalties, and twelve hours of counseling at the Intoxicated
Driver Resource Center. For the reckless driving conviction,
defendant was sentenced to three months of license suspension
along with fines and penalties. The license suspensions were to
run concurrently. Additionally, the judge granted defendant's
request for a stay of the sentence pending appeal.
Defendant requested a trial de novo before the Law
Division, arguing: (1) Defendant was denied a speedy trial, (2)
Defendant's refusal conviction should be reversed because the
standard notice statement was deficient, (3) Erratic driving
does not prove defendant was driving recklessly, and (4) No
forfeiture of driving privileges should be imposed against
defendant.
After oral argument, the Law Division judge entered an
order denying defendant's appeal. The judge found the trial was
delayed for two-and-one-half years. However, he found most, if
not all, of the delays were a result of defendant's attorney
seeking additional discovery of items not in the possession or
control of the State. Additionally, the judge found defense
counsel was seeking time to obtain an expert witness on
A-5839-13T3 6
concussions, but no such expert was presented at trial.
Furthermore, the judge found the speedy trial claim was not
asserted by defense counsel until the trial commenced.
Moreover, the judge found there was no prejudice to defendant,
as Moeller's memory was not "so faded that the matter was unable
to proceed."
The judge rejected defendant's claim that the standard
rights form for refusal was insufficient. He reasoned that the
lack of notice about an interlock device in the standard form
was "inconsequential" in light of the inclusion of notice of
penalties of greater consequence including license suspension.
With respect to defendant's de novo review of his reckless
driving conviction, the judge found "sufficient evidence beyond
really any doubt that the defendant was driving in such a
manner." He principally relied on the facts that defendant's
erratic driving was reported to the police by a third-party,
that defendant crashed into a snow bank on the side of the
highway twice and twice crashed into a car at the toll plaza,
and that defendant was swerving in between three lanes.
Defendant now appeals from the Law Division order
convicting him of the traffic offenses and imposing penalties,
raising the following claims:
A-5839-13T3 7
I. BOTH THE STATE AND MUNICIPAL COURT DENIED DEFENDANT A SPEEDY TRIAL WITH DELAY SO EXCESSIVE AS TO WARRANT DISMISSAL OF THE COMPLAINTS.
II. BECAUSE THE STANDARD STATEMENT USED HERE FAILED TO ADEQUATELY INFORM DEFENDANT OF THE CONSEQUENCES OF REFUSAL AS REQUIRED BY THE IMPLIED CONSENT STATUTE, THIS COURT SHOULD ACQUIT HIM OF BREATH TEST REFUSAL.
III. EVIDENCE OF MERE ERRACTIC DRIVING FAILED TO PROVE THE DEFENDANT DROVE HIS CAR EITHER RECKLESSLY OR CARELESSLY.
IV. IF THIS COURT CONVICTS DEFENDANT OF EITHER RECKLESS OR CARELESS DRIVING, HE ASKS THAT NO FORFEITURE OF DRIVING PRIVILEGE BE IMPOSED AS PART OF THE SENTENCE.
We first address defendant's speedy trial claim. The Law
Division's findings with respect to speedy trial claims should
be reversed "only if the court's determination is clearly
erroneous." State v. Tsetsekas, 411 N.J. Super. 1, 10, (App.
Div. 2009) (quoting State v. Merlino, 153 N.J. Super. 12, 17
(App. Div. 1977)). Our courts "have been loath to sponsor the
more severe sanction of dismissal because the demands of justice
require adjudications on the merits to the greatest extent
possible and because of concerns for the integrity of our
statutory scheme governing the operation of motor vehicles."
State v. Farrell, 320 N.J. Super. 425, 447 (App. Div. 1999)
(citations omitted). Nonetheless, in the event of a speedy
trial violation, "dismissal of the indictment . . . is the only
A-5839-13T3 8
possible remedy." Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct.
2182, 2188, 33 L. Ed. 2d 101, 112 (1972).
When evaluating claims of a denial of the constitutional
right to a speedy trial, a court must review and balance the
four factors identified in Barker: (1) length of delay, (2)
reasons for delay, (3) assertion of a speedy trial claim, and
(4) prejudice to the defendant. Barker, supra, 407 U.S. at 530,
92 S. Ct. at 2192, 33 L. Ed. 2d at 117; State v. Szima, 70 N.J.
196, 201 (adopting the standard from Barker), cert. denied, 429
U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976).
If a "delay exceeds one year, it is appropriate to engage
in the analysis of the remaining Barker factors." State v.
Cahill, 213 N.J. 253, 266 (2013). The Supreme Court has
declined to set a "bright-line rule" for a maximum time of delay
constituting an excessive delay. Id. at 258, 277. If there is
an excessive delay without "reasonable explanation or
justification . . . , speedy trial principles have been
violated." Farrell, supra, 320 N.J. Super. at 453.
Delays caused by "the trial court itself . . . are
attributable to the State and not to the defendant." Id. at
451. However, any delay caused or requested by the defendant
"would not weigh in favor of finding a speedy trial violation."
State v. Gallegan, 117 N.J. 345, 355 (1989). Additionally,
A-5839-13T3 9
"legitimate and substantial reasons for the delay in defendant's
trial" would not weigh in favor of finding a speedy trial
violation. State v. Marcus, 294 N.J. Super. 267, 294 (App. Div.
1996), certif. denied, 157 N.J. 543 (1998).
The court must consider whether the delays "were
'reasonably explained and justified.'" Farrell, supra, 320 N.J.
Super. at 450 (quoting State v. Detrick, 192 N.J. Super. 424,
426 (App. Div. 1983)). A "neutral reason" for delay "such as
. . . a heavy caseload, will also be weighed against the
government, albeit less heavily than deliberate delay." Cahill,
supra, 213 N.J. at 266.
In Cahill, after the defendant was sentenced for fourth
degree assault by auto, it took sixteen months to receive a
trial date in municipal court for his related DWI charge. Id.
at 257. The defendant did not claim his ability to present a
defense was prejudiced. Id. at 259. Nonetheless, the Court
found "the unexplained delay of sixteen months . . . [to be]
inordinate and unreasonable." Id. at 258.
Here, trial was delayed for over two years. However, we
disagree with defendant's claim that the reasons for delay are
mainly attributable to the State. This case is unlike
Tsetsekas, supra, 411 N.J. Super. at 12, where "every delay was
caused by the State's failure to be ready to proceed."
A-5839-13T3 10
Specifically, the delay was largely based on defense counsel's
continued adjournment requests in hopes of acquiring evidence
outside the possession of the prosecutor, despite the
prosecutor's repeated declaration that all available discovery
was provided. Moreover, the court permitted adjournments for
defense counsel to pursue his OPRA request for video recordings
of the Toms River toll plaza from the New Jersey Turnpike
Authority. Because the reasons for delay were largely caused by
defendant, we conclude this factor does not weigh in favor of
finding a speedy trial violation.
The third factor is defendant's assertion of the right to a
speedy trial. Although a defendant is not obligated to "bring
himself or herself to trial, it is difficult to prevail on a
speedy trial claim without a timely assertion of rights." State
v. Fulford, 349 N.J. Super. 183, 193 (App. Div. 2002). "[T]he
assertion of a right to a speedy trial in the face of continuing
delays is a factor entitled to strong weight when determining
whether the state has violated the right." Cahill, supra, 213
N.J. at 266.
As a corollary, the absence of such an assertion by the
defendant in the face of continuing delays "must be considered."
Id. at 274. See also Barker, supra, 407 U.S. at 532, 92 S. Ct.
at 2193, 33 L. Ed. 2d at 117-18 ("We emphasize that failure to
A-5839-13T3 11
assert the right will make it difficult for a defendant to prove
that he was denied a speedy trial."); Fulford, supra, 349 N.J.
Super. at 193 (holding "it is difficult to prevail on a speedy
trial claim without a timely assertion of rights" where the
defendant waited twenty-eight months to assert the claim).
Here, defendant did not assert his right to a speedy trial
until the trial actually commenced, which was approximately two
years after the first appearance in this matter. The absence of
a speedy trial claim for such a duration "make[s] it difficult
for [] defendant to prove that he was denied a speedy trial."
Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d
at 117-18. Therefore, we conclude this factor does not weigh in
favor of finding a speedy trial violation.
The final factor, prejudice, need not be established to
succeed on a speedy trial claim. Cahill, supra, 213 N.J. at
274. We note a defendant may face prejudice "from a variety of
factors including 'employment interruptions, public obloquy,
anxieties concerning the continued and unresolved prosecution,
the drain on finances, and the like.'" Farrell, supra, 320 N.J.
Super. at 446 (quoting State v. Smith, 131 N.J. Super. 354, 368
n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976)). However,
the "most serious" form of prejudice a defendant may face in
this context is an impairment of his or her ability to present a
A-5839-13T3 12
defense. Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33
L. Ed. 2d at 118.
To be sure, defendant could have suffered some form of
anxiety from the continuation of this case for over two years.
However, the most important form of prejudice from which we seek
to protect defendants, their ability to present a defense, was
not implicated in this case. Defendant's only contention is
that Moeller's memory of the incident was impaired by the delay.
A review of the record and Moeller's testimony suggests
otherwise, as Moeller testified clearly and with only minor
discrepancies that are common among eyewitnesses. Therefore, we
conclude this factor does not weigh in favor of finding a speedy
trial violation.
Considering all of the Barker factors as a whole, we
conclude there was no speedy trial violation in this case, and
affirm that portion of the Law Division order.
Next, we address defendant's claim that the standard
statement informing him of the consequences associated with
refusing to submit breath samples was defective because it did
not mention the ignition interlock requirement.1
1 Defendant, citing Canadian law, also raises the claim that he was not "advised of the significant consequence of inadmissibility into Canada." We find that claim to be without (continued)
A-5839-13T3 13
We uphold the Law Division's findings if supported by
sufficient credible evidence in the record. State v. Adubato,
420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209
N.J. 430 (2012). However, we review purely legal issues, such
as this one, de novo. Ibid.
A refusal conviction requires the State to prove beyond a
reasonable doubt that:
(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.
[State v. Marquez, 202 N.J. 485, 503 (2010) (citations omitted).]
One such consequence is the ignition interlock requirement
codified in N.J.S.A. 39:4-50.17.
The Supreme Court, in State v. O'Driscoll, 215 N.J. 461
(2013), held that "[c]ourts should consider whether an error in
the reading of the standard statement is material in light of
the statutory purpose to inform motorists and impel compliance.
(continued) merit. R. 2:11-3(e)(2). It is not required to advise a defendant of the laws of other countries.
A-5839-13T3 14
Id. at 466. Courts must "examine whether a defendant reasonably
would have made a different choice and submitted to a breath
test had the officer not made an error in reciting the
statement. An immaterial variation from the standard form does
not require reversal of a conviction for refusal." Ibid.
Here, defendant was not advised of being subject to the
ignition interlock requirement following a license suspension
for refusal. However, as we recently held in State v. Monaco,
__ N.J. Super. __, __ (App. Div. 2016) (slip op. at 15),
"defendant's argument that h[is] conviction should be set aside
because the standard statement failed to advise h[im] of the
ignition interlock requirement" is without merit. We disagree
with his contention that being informed of the ignition
interlock requirement would "affect a reasonable person's
decision-making" after they had already been advised of the
minimum seven-month license suspension requirement associated
with refusal. O'Driscoll, supra, 215 N.J. at 478. Therefore,
we affirm the Law Division order with respect to the standard
statement.
Next, we turn our attention to defendant's claim that
"evidence of mere erratic driving failed to prove that defendant
drove his car either recklessly or carelessly."
A-5839-13T3 15
Our review of a judge's factual findings following a bench
trial is limited. State v. Frank, __ N.J. Super. __, __ (App.
Div. 2016) (slip op. at 7). The trial judge's factual findings
"must be upheld, provided they 'could reasonably have been
reached on sufficient credible evidence present in the record.'"
State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v.
Locurto, 157 N.J. 463, 471 (1999)). However, we review legal
issues de novo. State v. Ghandi, 201 N.J. 161, 176 (2010).
A person who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving and be punished by imprisonment in the county or municipal jail for a period of not more than 60 days, or by a fine of not less than $50.00 or more than $200.00, or both.
[N.J.S.A. 39:4-96.]
Defendant concedes that "Moeller described erratic
driving." He contends there is insufficient evidence in the
record to show he was driving recklessly and that the judge
erred by relying on a res ipsa analysis in finding him guilty of
reckless driving. Defendant relies exclusively on State v.
Lutz, 309 N.J. Super. 317 (App. Div. 1998), and State v. Wenzel,
113 N.J. Super. 215 (App. Div. 1971).
In Lutz, "other than the [car] accident itself, the State
only presented defendant's statement that his vehicle began to
A-5839-13T3 16
slide on the wet highway and continued to do so when he tapped
his brakes." Lutz, supra, 309 N.J. Super. at 327. We reversed
a careless driving conviction, concluding "[t]he State presented
no evidence indicating that defendant had been speeding, driving
too fast for the wet road conditions, distracted or otherwise
driving without due caution and circumspection." Ibid.
Similarly, in Wenzel, we reversed the defendant's conviction
based on what amounted to a "res ipsa doctrine." Wenzel, supra,
113 N.J. Super. at 218.
We disagree with defendant's argument that the lower court
relied on a res ipsa analysis in finding him guilty of reckless
driving. Here, defendant was swerving between three lanes on
the Garden State Parkway and twice crashed into a snow bank on
the side of the highway. He then bumped into a car at the toll
plaza twice. This conduct did and "was likely to endanger a
person or property" proving beyond a reasonable doubt he
committed reckless driving. N.J.S.A. 39:4-96. Therefore, we
affirm defendant's reckless driving conviction.
Next, we address defendant's claim that the Law Division
judge erred in suspending defendant's license in connection with
his reckless driving conviction, pursuant to N.J.S.A. 39:5-31.
When reviewing a sentence, we must afford trial courts
"great deference and '[j]udges who exercise discretion and
A-5839-13T3 17
comply with the principles of sentencing remain free from the
fear of second guessing.'" State v. Dalziel, 182 N.J. 494, 501
(2005) (alteration in original) (quoting State v. Megargel, 143
N.J. 484, 494 (1996)). If "the proper legal principles have not
been applied or the facts found by the [trial] judge are not
supported by the record . . . it is for the [trial] judge to
resentence[.]" Id. at 501-02.
N.J.S.A. 39:5-31 provides the court with discretion to
"revoke the license of any person to drive a motor vehicle, when
such person shall have been guilty of such willful violation of
any of the provisions of this subtitle as shall . . . justify
such revocation." In the context of N.J.S.A. 39:4-96,
"'willful' bespeaks a deliberate or intentional disregard of the
lives and property of other in the manner in which a driver
operates a vehicle." State v. Moran, 202 N.J. 311, 323 (2010).
However, in N.J.S.A. 39:5-31, "'willful' suggests a deliberate
violation of certain motor-vehicle statutes . . . involv[ing] a
state of mind and conduct that exceed reckless driving itself."
Moran, supra, 202 N.J. at 323. In other words, a license
suspension arising from a reckless driving conviction requires
"an aggravated form of reckless driving." Ibid.
A-5839-13T3 18
The Supreme Court enunciated the following guidelines to
consider, prior to imposing a license suspension, pursuant to
the statute:
[T]he nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation; whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation; whether the defendant's conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or dependents; and the need for personal deterrence; . . . [and] [a]ny other relevant factor clearly identified by the court.

Outcome: Here, the trial judge did not perform the necessary
analysis promulgated by the Supreme Court in Moran prior to
suspending defendant's license in connection with his reckless
driving conviction. Therefore, we vacate the sentence imposed
by the Law Division on the reckless driving offense and remand
the matter for resentencing.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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