State v. Jamarino

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: PER CURIAM
• Decision Date: 31 May 2019
• Docket Number: DOCKET NO. A-5612-17T4
• Citation: State v. Jamarino, DOCKET NO. A-5612-17T4 (N.J. Super. App. Div. May 31, 2019)
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIELLE JAMARINO, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIELLE JAMARINO, Defendant-Appellant.

DOCKET NO. A-5612-17T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted April 29, 2019

May 31, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Sabatino and Susswein.

On appeal from Superior Court, Law Division, Ocean County, Municipal Appeal No. 17-07.

John Menzel, attorney for appellant.

Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Chief Appellate Attorney, of counsel; William Kyle Meighan, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Danielle Jamarino appeals from her convictions for driving while intoxicated ("DWI") and for refusing to submit to a breath test ("refusal"). Defendant raises three issues on appeal. She contends, first, that the summons-complaint that charged her with refusal was fatally defective because it mistakenly cited to N.J.S.A. 39:4-50.2 rather than to the correct citation of N.J.S.A. 39:4-50.4; second, that the Point Pleasant Beach Police Department lacked procedures to safeguard her right to get an independent blood analysis; and third, that the officer who administered the "standard statement" at the police station failed to read the final portion of the statement.

All three contentions were addressed and rejected by the municipal court judge who conducted the bench trial and the Superior Court judge who conducted the trial de novo on defendant's appeal to the Law Division. We have considered each of defendant's contentions on appeal in light of the record and applicable legal principles and conclude that they are without merit. We therefore affirm the convictions for both DWI and refusal.

I.

We rely on the trial record and the findings of the municipal court judge who conducted the bench trial and the Superior Court judge who heard the trialde novo on appeal to the Law Division. We briefly summarize the facts elicited at trial to place our legal conclusions in context.

On November 3, 2016, police received a report of a vehicle being driven erratically. Then-sergeant Gerald Quaglia¹ observed defendant's vehicle pass his patrol car travelling in excess of the posted speed limit. He ordered defendant to pull over, and she complied, pulling into the parking lot of a diner. The officer noticed that her face was flush and her eyes were watery and bloodshot. He also detected the odor of alcohol on her breath. When questioned, she stated that she had consumed three or four glasses of wine.

Defendant had difficulty maintaining her balance as she exited her vehicle. Lieutenant Quaglia administered a battery of field sobriety tests, which she failed. For example, she recited the alphabet only up to the letter "T," at which point she had to start over. She could not perform the "walk and turn" test while keeping her arms at her side and walking heel-to-toe. Nor could she perform the one-legged-stand test.

Based on his observations, Lieutenant Quaglia arrested defendant for drunk driving and she was transported to the police station. There, Lieutenant Quaglia administered the Miranda² warnings and read the "N.J. ATTORNEY GENERAL'S STANDARD STATEMENT FOR MOTOR VEHICLE OPERATORS (N.J.S.A. 39:4-50.2(e) (revised & effective July 1, 2012))." Paragraph No. 9 of that "standard statement" reads, "I repeat, the law requires you to submit samples of your breath for testing. Will you submit samples of your breath?" Defendant unequivocally answered "no" to that question.

At the conclusion of the bench trial, the municipal court judge made specific findings regarding the credibility of the trial witnesses, stating:

I've sat in contemplation of these cases for well over 30 years, and I've seen officers that lie. I've seen defendants that lie. I have to tell you, this lieutenant's testimony here today was the most credible testimony I've seen in a long time. I'm not swayed by anything [the defendant] tells this Court. I am satisfied that the credible version of what occurred on the date and time in question is that presented on behalf of the State.

Based on the foregoing facts elicited at the trial, the municipal court judge acquitted defendant of reckless driving, but found her guilty of DWI based on the lieutenant's observational evidence and found her guilty of refusing tosubmit to a breath test. On a trial de novo to the Superior Court, the Law Division judge affirmed those convictions.

Defendant was sentenced on the DWI conviction to revocation of driving privileges for ninety days, to attend twelve hours at an Intoxicated Driver Resource Center (IDRC), a $360 fine, $350 in surcharges, and $33 in court costs. Defendant was sentenced on her refusal conviction to revocation of driving privileges for seven months to be followed by six months during which she must use an alcohol ignition interlock device, to attend twelve hours at an IDRC, a $360 fine, $100 in surcharges, and $33 in court costs. The suspension of driving privileges and IDRC sentences were ordered to be served concurrently. Execution of the sentence, including suspension of defendant's driving privileges, has been stayed throughout the pendency of this appeal.

II.

On appeal, defendant raises the following contentions:

I. THIS COURT SHOULD DISMISS COMPLAINT PPC-086217 CHARGING DEFENDANT WITH "REFUSAL" IN VIOLATION OF N.J.S.A. 39:4-50.2, BECAUSE REFERENCE TO THIS "IMPLIED CONSENT" STATUTE CONSTITUTES A FATAL DEFECT IN THAT THE STATUTE DOES NOT DEFINE AN OFFENSE.

II. THIS COURT SHOULD DISMISS ALLEGATIONS BASED ON DEFENDANT'S

FAILURE TO SUBMIT BREATH SAMPLES BECAUSE THE POLICE DEPARTMENT LACKED PROCEDURES NECESSARY TO PROTECT HER RIGHTS.

III. THIS COURT SHOULD FIND DEFENDANT NOT GUILTY OF REFUSING TO SUBMIT BREATH SAMPLES BECAUSE THE EVIDENCE FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT WHETHER SHE WAS PROPERLY ADVISED OF HER RIGHTS AND OBLIGATIONS CONCERNING THE SUBMISSION OF BREACH SAMPLES.

A.

Defendant argues that the summons that charged her with refusal was fatally defective because it mistakenly cited to N.J.S.A. 39:4-50.2 rather than to N.J.S.A. 39:4-50.4. The State acknowledges the summons cites to the implied consent statutory provision in the motor vehicle code rather than to the statutory provision that actually defines the refusal offense. The legal question before us is whether this was merely a technical defect or whether instead it was a mistake of such magnitude as to require that we overturn defendant's refusal conviction.

In State v. Cummings, 184 N.J. 84 (2005), the Supreme Court commented in a footnote that care should be taken to list N.J.S.A. 39:4-50.4(a) rather than N.J.S.A. 39:4-50.2 when charging a refusal offense. Id. at 90 n.1. The Court also indicated "we see no prejudice resulting from it [the incorrect citation in the complaint]." Ibid.

In the case before us, as in Cummings, greater care should have been exercised in listing N.J.S.A. 39:4-50.4(a) in the body of the summons. But also as in Cummings, Jamarino was not prejudiced by the citation error. Defendant offers no explanation as to how or why the faulty citation inhibited her ability to prepare and present a trial defense. It is hard to imagine how she might possibly have been confused as to what specific offense she had to answer to at trial. In State v. Marquez, 202 N.J. 485 (2010), the Supreme Court recognized that N.J.S.A. 39:4-50.2 and N.J.S.A. 39:50.4 are "plainly interrelated" and that they "not only cross-reference one another internally, but they also rely on each other substantively. They must therefore be read together." Id. at 501-02.

Defendant relies on State v. Nunnally, 420 N.J. Super. 58 (App Div. 2011), for the proposition that the citation error was more than a technical defect. Her reliance on Nunnally is misplaced, however, as the circumstances presented in that case are markedly different from the situation presented in this appeal. In Nunnally, the defendant held a commercial driver's license (CDL) and was arrested for operating a commercial vehicle while under the influence. Id. at 62. The summons, however, charged the defendant with the general refusal offense, N.J.S.A. 39:4-50.4, rather than the distinct offense set forth in a different part of the motor vehicle code that applies to operators of commercialvehicles, N.J.S.A. 39:3-10.24. The summons could not be amended on the day of trial to reflect the correct CDL refusal offense because the ninety-day statute of limitations had expired. Nunnally, 420 N.J. Super. at 62-63.³

We concluded in Nunnally that the error in the charging instrument was not merely a technical defect because the material elements of the general refusal offense are substantively different from the elements of the CDL refusal offense. For example, the CDL refusal statute requires that police have probable cause to believe that the driver has a 0.04% blood alcohol content (BAC), which is a much lower threshold than the one that applies to the general refusal statute. In short, the charging instrument averred the wrong offense, charging a different substantive offense than the one that the defendant had been arrested for and that the State sought to prosecute at trial.

We recognized in Nunnally that in order to prepare a defense, a defendant must know the offense with which he or she is charged. Id. at 66. In the circumstances presented in that case, the summons failed to provide thedefendant with notice as to the specific offense that the State intended to prosecute at trial.

In the present case, in contrast, defendant was not charged with the wrong offense, that is, an offense different from the one for which she was arrested and eventually tried and convicted. Rather, the error in the charging instrument in the...