NOT FOR PUBLICATION WITHOUT THE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-5356-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL ARNO,
Defendant-Appellant.
_______________________________
Argued October 26, 2017 – Decided November 14, 2017
Before Judges Simonelli, Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Municipal
Appeal No. 5-15.
Timothy P. Kane argued the cause for appellant
(Abdy & Kane, PC, attorneys; Mr. Kane, on the
briefs).
Rory A. Eaton, Assistant Prosecutor, argued
the cause for respondent (Michael H.
Robertson, Somerset County Prosecutor,
attorney; Mr. Eaton, of counsel and on the
brief).
PER CURIAM
Defendant appeals from his conviction, after a trial de novo
in the Law Division, of driving while intoxicated (DWI), N.J.S.A.
39:4-50; refusal to submit to a chemical breath test, N.J.S.A.
39:4-50.2; and careless driving, N.J.S.A. 39:4-97.1 We affirm.
The facts and procedural history of this case are set forth
at length in Judge Kimarie Rahill's comprehensive twenty-six-page
written decision and need not be repeated here in the same level
of detail.
Officer Ryan Cerro observed defendant driving his car near
the Somerville Circle at approximately 2:45 a.m. Defendant veered
off into the left lane of travel and, although the speed limit was
forty-fives mile per hour, defendant accelerated to approximately
sixty miles per hour and then had trouble maintaining his lane.
After defendant began driving even faster, Officer Cerro activated
his overhead lights and executed a motor vehicle stop.
The officer detected the odor of alcohol emanating from
defendant's car and on his breath. Defendant's eyes were watery,
he appeared nervous, and his speech was boisterous in nature.
1
Defendant does not challenge his sentence in this appeal.
Following our April 26, 2016 order granting defendant a limited
remand to the municipal court for resentencing, the municipal
court sentenced defendant as a second offender on the DWI
conviction to a two-year driver's license suspension, forty-eight
hours at an Intoxicated Drivers Resource Center, the installation
of an interlock device for one year, and appropriate fines and
penalties. The Law Division had earlier affirmed the municipal
court's imposition of a concurrent seven-month driver's license
suspension for refusal, together with fines and penalties on that
charge, as well as for the careless driving conviction.
2 A-5356-14T4
Defendant admitted he had been drinking alcohol during the day,
but believed he was fine to drive.
Officer Cerro had defendant perform two field sobriety tests,
which he was unable to successfully complete.2 Defendant's
performance on these tests was recorded by the officer's mobile
video recorder (MVR) and this recording was played at defendant's
trial. After defendant failed the field sobriety tests, Officer
Cerro arrested him, placed him in his patrol car, and drove to the
police station. At the station, defendant refused to submit to a
chemical breath test.
Officer Cerro was the State's only witness at the municipal
court trial. After the State rested, defendant called two expert
medical witnesses. One of the witnesses, a podiatrist, testified
that he treated defendant for a "painful left big toe" both before
and after his arrest and that this condition affected his ability
to walk normally. A pulmonologist, who was also defendant's
brother, testified that he diagnosed defendant with a bronchospasm
two days before his arrest. The brother also stated that when he
2
On the "walk-and-turn" test, defendant needed to raise his arms
to maintain his balance and failed to walk heel-to-toe as
instructed. Defendant was also unable to perform the "one-leg-
stand" test because he again needed to raise his arms to maintain
his balance and could not keep his foot six inches off the ground
for thirty seconds.
3 A-5356-14T4
picked defendant up from the police station, defendant did not
appear to be under the influence.
Based upon the testimony presented at trial, the municipal
court judge found defendant guilty of DWI, refusal, and careless
driving. The judge made detailed findings of fact, fully crediting
Officer Cerro's testimony. The judge rejected the opinions of
defendant's experts, noting that their claims that defendant's
performance on the field sobriety tests may have been affected by
a medical condition were belied by the MVR recording of defendant
performing the tests. Based on his review of that recording, the
judge found that although defendant was unable to maintain his
balance during the tests, he had no difficulty walking on the
roadway as he prepared to take the tests.
Following the trial de novo in the Law Division, Judge Rahill
made equally detailed findings of fact and conclusions of law in
her extremely thorough written opinion, and affirmed defendant's
convictions. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL COURT'S ARBITRARY AND UNREASONABLE
DENIAL OF AN EXTENSION CONSTITUTED AN ABUSE
OF DISCRETION AND A VIOLATION OF DEFENDANT['S]
. . . RIGHT TO COUNSEL MANDATING A REVERSAL
OF DEFENDANT'S CONVICTIONS.
4 A-5356-14T4
POINT II
DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT
AND NEW JERSEY CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND HIS
DUE PROCESS AND STATE RIGHT TO A FAIR TRIAL
BY JUDGE KELLEHER'S GRANTING THE WITHDRAWAL
MOTION OF HIS RETAINED ATTORNEY WITHOUT CAUSE,
AND BY SAID ATTORNEY FAILING TO COMPLY WITH
THE COURT ORDER AS TO THE REASON FOR FILING
THE MOTION TO BE RELIEVED, RESULTING IN: 1)
DEPRIVATION OF DEFENDANT'S COUNSEL OF CHOICE;
2) TRIAL WITH INSUFFICIENT TIME FOR NEW
COUNSEL TO PREPARE; 3) A LACK OF DISCOVERY;
AND 4) A LACK OF THE DEFENSE EXPERT WHICH HAD
BEEN PAID FOR BY THE DEFENDANT AND WAS
ESSENTIAL TO HIS DEFENSE.
POINT III
THE DEFENDANT'S CONVICTIONS MUST BE REVERSED
DUE TO THE MUNICIPAL COURT'S STRUCTURAL ERROR
IN INCORPORATING THE SUPPRESSION MOTION AND
TRIAL INTO A CONCURRENT PROCEEDING WITHOUT THE
EXPRESS CONSENT OF THE PARTIES.
POINT IV
THE STATE FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT THE DEFENDANT . . . OPERATED A MOTOR
VEHICLE UNDER THE INFLUENCE OF ALCOHOL; THE
DWI CONVICTION MUST BE REVERSED.
POINT V
THE EXISTENCE OF MEDICAL ISSUES AFFECTING
DEFENDANT'S ABILITY TO PERFORM THE WALK-AND-
TURN AND ONE-LEG-STAND TESTS RAISES REASONABLE
DOUBT AS TO THE ELEMENT OF BREATH TEST REFUSAL
REQUIRING PROBABLE CAUSE TO ARREST HIM FOR
DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL.
5 A-5356-14T4
POINT VI
THE CARELESS DRIVING CONVICTION SHOULD BE
REVERSED AS REASONABLE DOUBT EXISTS AS TO THE
DEFENDANT['S] . . . GUILT; THERE WAS NO
EVIDENCE AS TO ANY EFFECT ON OR DANGER TO
OTHERS FROM THE MANNER IN WHICH [DEFENDANT]
DROVE.
POINT VII
DEFENDANT WAS ENTITLED TO A JURY TRIAL IN
LIGHT OF THE LEGISLATURE'S SHIFT, WITH THE
2004 AMENDMENTS TO N.J.S. 39:4-50, FROM
REHABILITATION TO PUNISHMENT OF THIRD DWI
OFFENDERS, COUPLED WITH THE POSSIBILITY OF
JAIL IN EXCESS OF 180 DAYS AND THE IMPOSITION
OF OTHER ONEROUS PENALTIES.
We find insufficient merit in defendant's Points I, IV, V,
and VI, to warrant discussion in a written opinion. 3 R. 2:11-
3(e)(2). We add the following brief comments concerning these
contentions.
3
At oral argument, defendant's attorney waived defendant's
argument in Point VII that he was entitled to a jury trial on the
DWI charge. See State v. Denelsbeck, 225 N.J. 103, 107 (2016)
(holding that third or subsequent DWI offenders under N.J.S.A.
39:4-50 are not entitled to a jury trial), cert. denied, ___ U.S.
___, 137 S. Ct. 1063, 197 L. Ed. 2d 175 (2017). Therefore, there
is no need to address this point in this opinion. We also decline
to consider defendant's contention in Point II that three of the
attorneys he retained rendered ineffective assistance to him
during the course of this proceeding. State v. Rambo, 401 N.J.
Super. 506, 525 (App. Div.) (noting that "[c]ontentions of
ineffective assistance of counsel are more effectively addressed
through petitions for post-conviction relief, at which point an
appropriate record may be developed") (citing State v. Preciose,
129 N.J. 451, 460 (1992)), certif. denied, 197 N.J. 258 (2008).
6 A-5356-14T4
Contrary to defendant's argument in Point I, the municipal
court judge exercised his sound discretion in denying defendant's
last-minute adjournment request on July 29, 2014, the day of trial.
State v. Hayes, 205 N.J. 522, 538 (2011). The matter had been
pending for ten months, and defendant had already obtained multiple
adjournments due to his alleged difficulties in retaining counsel.
Thus, the judge was well within his discretion to deny defendant's
request for yet another adjournment, this time to obtain an expert
who defendant's attorney stated was then on vacation.
Defendant's Points IV, V, and VI also lack merit. On appeal
from a Law Division decision, the issue is whether there is
"sufficient credible evidence present in the record" to uphold the
findings of the Law Division, not the municipal court. State v.
Johnson, 42 N.J. 146, 162 (1964). "We do not weigh the evidence,
assess the credibility of witnesses, or make conclusions about the
evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give
due regard to the trial court's credibility findings. State v.
Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
A DWI conviction may be based upon physical evidence, such
as symptoms observed by the arresting police officers or failure
of the defendant to perform adequately on balance and coordination
tests. State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.
1995), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996). A
7 A-5356-14T4
defendant's demeanor, physical appearance, slurred speech, and
bloodshot eyes, together with an odor of alcohol or an admission
of the consumption of alcohol and poor performance on field
sobriety tests, are sufficient to sustain a DWI conviction. State
v. Bealor, 187 N.J. 574, 588-89 (2006).
Here, defendant operated his car erratically, smelled of
alcohol, had watery eyes, exhibited boisterous behavior, admitted
to drinking, and failed both field sobriety tests. Thus, there
was ample evidence in the record supporting defendant's DWI
conviction beyond a reasonable doubt.
Because there was obviously probable cause to arrest
defendant for DWI under the totality of circumstances described
above, and he thereafter refused to submit to a chemical breath
test, we discern no basis for disturbing defendant's refusal
conviction under N.J.S.A. 39:4-50.2. See State v. Marquez, 202
N.J. 485, 503 (2012) (listing the elements that must be established
to uphold a refusal conviction). Finally, Officer Cerro's
testimony that defendant veered from one lane to another, and
drove at least fifteen miles over the speed limit, provided more
than enough credible evidence to support defendant's conviction
for careless driving under N.J.S.A. 39:4-97.
We now turn to defendant's Point III, where he asserts that
the municipal court judge improperly combined the trial on the
8 A-5356-14T4
charges and his motion to suppress evidence into a single
proceeding in violation of the principle that a judge should
conduct these matters separately. Judge Rahill rejected this
argument, finding that defendant's attorney "stipulated that the
testimony from the motion to suppress [would] be incorporated into
the trial." Based on our review of the applicable case law as
applied to the facts of this case, we also reject defendant's
contention.
Since at least 1989, the Municipal Court's Training Guide has
counselled municipal court judges not to incorporate the evidence
from a suppression motion into the trial record. State v. Gibson,
219 N.J. 227, 240-41 (2014) (citing State v. Allan, 283 N.J. Super.
622, 630 (Law Div. 1995) (holding that the better practice is to
conduct two separate proceedings unless both sides consent and
defense counsel is given wide latitude in cross-examining the
State's witnesses)). As the Court explained in Gibson, a
suppression hearing and a trial are governed by different rules
and have different purposes. Id. at 241-42. For example, a
suppression hearing determines whether certain evidence may be
excluded and the State may present hearsay evidence that would
otherwise be inadmissible at a trial. N.J.R.E. 104(a).
Thus, the Court held that the two proceedings may only be
combined if both parties consent and the defense is granted the
9 A-5356-14T4
opportunity to fully cross-examine the State's witnesses on all
issues raised. Gibson, supra, 219 N.J. at 248-49. "Following
this procedure[,]" the Court found, "underscores the separate
nature of each proceeding, the limited scope of a suppression
motion, and the different standards of proof governing each
proceeding." Id. at 245. In cases where this rule was not
followed by the municipal court, the Court ruled that the matter
should be remanded for a new trial. Id. at 249.4
In Allan, defense counsel vehemently objected to having the
evidence adduced at the motion to suppress proceeding incorporated
into the trial. Allan, supra, 283 N.J. Super. at 628. Moreover,
the municipal court judge did not permit defense counsel to cross-
examine a police officer at the trial concerning the officer's
testimony at the earlier suppression hearing. Id. at 629. As a
result, the Law Division found that the municipal court judge
4
The parties each devote a portion of their briefs to a debate
over whether the Supreme Court's Gibson decision, which was
rendered less than two months after defendant's trial, should be
applied retroactively. As noted above, the general rule for over
twenty-five years has been that the motion to suppress hearing
should be conducted separately from a DWI or refusal trial. Allan,
supra, 283 N.J. Super. at 630. Moreover, prior to defendant's
trial, we had already issued our decision in State v. Gibson, 429
N.J. Super. 456, 468 (App. Div. 2013), rev'd on other grounds, 219
N.J. 227 (2014), which also criticized the practice of relying on
suppression hearing evidence in the trial on the merits of a DWI
matter without the parties' consent. Thus, we will apply the
Gibson decision to the facts of this case.
10 A-5356-14T4
"infringed upon the defendant's constitutional right to confront
the witness against him" and remanded the matter for a new trial.
Ibid.
Similarly, in Gibson, a motion to suppress hearing was
conducted prior to the trial. Gibson, supra, 219 N.J. at 233.
Immediately after the municipal court judge denied the defendant's
suppression motion, he began the trial and incorporated the
testimony from the suppression hearing into the trial record. Id.
at 234-35. In doing so, the judge did not allow the defendant's
attorney to further cross-examine the police officer who had
earlier testified for the State at the suppression hearing. Id.
at 235. Although the defendant's attorney did not object to
combining the motion to suppress record and the trial, he also did
not consent to proceeding in this fashion. Ibid. The Court
therefore concluded that a new trial was necessary. Id. at 249.
The facts of this case are in no way similar to those
presented in Gibson or Allan. Here, the parties appeared on July
29, 2014, for the purpose of conducting a trial on the charges
pending against defendant. Although, on July 17, 2014, defendant's
newly-retained attorney had filed a motion to suppress "all
evidence seized as a result of a warrantless search that occurred
on" the day of defendant's arrest, the attorney did not bring this
11 A-5356-14T4
motion to the municipal court judge's attention at the beginning
of the trial.
Instead, defense counsel asked for an adjournment of the
trial to permit him to retain an expert to replace the one
defendant had previously engaged. When the judge denied this
motion, the attorneys and the judge discussed the schedule for the
day. After the judge confirmed with the court clerk that "[t]he
whole day" had been set aside for the trial, defendant's attorney
mentioned that one of his two experts would not be available until
noon. At no time did defendant's attorney ask the judge to
consider a motion to suppress evidence.
The judge then commenced the trial with the State presenting
the testimony of Officer Cerro. At the conclusion of the officer's
direct examination, defendant's attorney thoroughly cross-examined
him on all issues relating to the charges involved in the trial.
After the State rested, defendant's attorney presented the
testimony of both of his experts. Again, there was no mention of
a motion to suppress.
After defendant rested, the judge asked, "Any motions by
anyone?" In response to that standard inquiry, defendant's
attorney for the first time stated, "Your Honor, I filed a motion
to suppress which I think was really incorporated within the entire
trial[.]" The judge responded by noting that defendant's motion
12 A-5356-14T4
was "really not timely[,]" but he would consider it. The judge
then found that Officer Cerro had probable cause to stop
defendant's car after he observed defendant speeding and driving
carelessly. Therefore, the judge denied the motion to suppress
the evidence of alcohol use the officer observed after the motor
vehicle stop.
The judge next asked defense counsel if there was "[a]nything
else" and the attorney stated, "Not in that regard, Your Honor,
no." The judge then proceeded to render his findings on the
charges.
Thus, this case is nothing at all like Gibson or Allan, where
the defendants were forced to have evidence adduced at an earlier
suppression hearing incorporated into the trial record without
their consent and without the opportunity to fully cross-examine
the witnesses on the charges themselves. Unlike in those cases,
both parties were fully aware that a trial was going to be
conducted on July 29, 2014. Defendant also had the opportunity
to fully cross-examine Officer Cerro on his reasons for stopping
defendant's car and the officer's observations after that stop all
the way through to defendant's refusal to submit to a chemical
breath test.
The only reason there was any "combination" of the trial and
a motion to suppress here was because defendant's attorney
13 A-5356-14T4
belatedly asked the judge to consider a motion to suppress at the
very end of the trial. Clearly, the judge's decision to
accommodate defendant's late motion did not implicate any of the
concerns that led the Gibson court to prohibit the use of testimony
and evidence presented at a pre-trial suppression hearing at a
later trial on the merits. Therefore, we reject defendant's
arguments on this point.
Affirmed.
14 A-5356-14T4