STATE OF NEW JERSEY VS. TIMOTHY CHMIEL(16-015, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5435-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY CHMIEL,

Defendant-Appellant.
______________________________

Argued September 25, 2017 – Decided October 11, 2017

Before Judges Whipple and Rose.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Municipal
Appeal No. 16-015.

Luke C. Kurzawa argued the cause of appellant
(Reisig Criminal Defense & DWI Law, LLC,
attorneys; Mr. Kurzawa, on the brief).

Mary R. Juliano, Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Monmouth County Prosecutor,
attorney; Ms. Juliano, of counsel and on the
brief; Vanessa L. Coleman, Legal Assistant,
on the brief).

PER CURIAM
 Defendant Timothy Chmiel appeals from a Law Division order

denying his petition for post-conviction relief ("PCR") without

an evidentiary hearing. We affirm.

Defendant was charged with driving while intoxicated ("DWI"),

N.J.S.A. 39:4-50(a), refusal to submit to a breath test, N.J.S.A.

39:4-50.4(a),1 reckless driving, N.J.S.A. 39:4-96, and unsafe lane

change, N.J.S.A. 39:4-88(b).

Defendant, represented by counsel, pled guilty to DWI in

Brielle Municipal Court. The State dismissed the remaining

charges. Defendant was sentenced as a fourth-time offender to 180

days in jail, mandatory fines, and penalties. Defendant did not

appeal the conviction.

Defendant filed a PCR petition with the municipal court,

pursuant to Rule 7:10-2, claiming that plea counsel was ineffective

for failure to challenge the motor vehicle stop. The municipal

judge denied the petition. Subsequently, pursuant to Rule 3:23-

1, defendant appealed the municipal judge's order to the Law

Division on the same grounds.

Defendant now appeals from the Law Division's order denying

his PCR petition. Renewing his previous argument, defendant

presents the following issue for our consideration:

1
The summons was incorrectly cited as N.J.S.A. 39:4-50.2.

2 A-5435-15T3
 THE LAW DIVISION ERRED WHEN IT FOUND THAT []
DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE
CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND
AS A RESULT, HIS APPLICATION FOR POST-
CONVICTION RELIEF SHOULD BE GRANTED, HIS
CONVICTION VACATED, AND THE MATTER REMANDED
TO ANOTHER MUNCIPAL COURT WITHIN THE MONMOUTH
VICINAGE FOR FURTHER PROCEEDINGS.

I.

We glean the facts pertinent to this appeal from the record. 2

Following a telephone call from defendant's concerned female

friend to the Brielle Police Department, Officer Gary Olsen was

dispatched to defendant's residence to conduct a welfare check.

Upon arrival, a male neighbor met Olsen and advised he had just

observed defendant lying on the ground appearing intoxicated.

According to the neighbor, defendant then entered his red, older

model Ford Explorer and drove from the area. The neighbor

disclosed that defendant often drove to a nearby convenience store

to purchase alcohol and cigarettes.

Acting on the information provided by defendant's neighbor,

Olsen drove to the nearest convenience store and observed defendant

enter a red Ford Explorer and drive onto Higgins Avenue toward

Highway 71. Olsen followed defendant and activated his vehicle's

2
As noted in the State's brief, the facts are garnered from the
police report proffered by defendant to support his claim that
plea counsel was ineffective. The trial judge cited these facts
in his opinion.

3 A-5435-15T3
emergency lights. Defendant did not pull over, but eventually

drove onto Highway 35. Olsen activated his vehicle's sirens, but

defendant failed to stop until he reached the driveway of his

residence. Olsen approached the driver's side of defendant's

vehicle and detected an odor of alcohol emanating from the interior

through the open window. Defendant's eyes were bloodshot and

watery, and his movements were slow and deliberate. Defendant

stated he had been shaking all day and his only relief resulted

from drinking vodka. Defendant was arrested and charged as set

forth above.

II.

We review the PCR court's findings of fact under a clear

error standard, and conclusions of law under a de novo standard.

See State v. Harris, 181 N.J. 391, 420-21 (2004), cert.

denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Where, as here, however, "no evidentiary hearing has been held,

we 'may exercise de novo review over the factual inferences drawn

from the documentary record by the [PCR judge].'" State v. Reevey,

417 N.J. Super. 134, 146-47 (App. Div. 2010) (alteration in

original) (quoting Harris, supra, 181 N.J. at 421), certif.

denied, 206 N.J. 64 (2011).

When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, entitlement to the

4 A-5435-15T3
requested relief. State v. Preciose, 129 N.J. 451, 459 (1992).

The mere raising of a claim for PCR does not, however, entitle the

defendant to an evidentiary hearing. State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a

prima facie claim of ineffective assistance. Preciose, supra, 129

N.J. at 459-64; R. 3:22-10(b).

Pursuant to the two-pronged test established in Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct.

2039, 80 L. Ed. 2d 657 (1984), as adopted by the New Jersey Supreme

Court in State v. Fritz, 105 N.J. 42 (1987), the defendant must

demonstrate counsel's performance was both deficient and

prejudicial. State v. Martini, 160 N.J. 248, 264 (1999) (citing

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693)). The performance of counsel is "deficient" if it

falls "below an objective standard of reasonableness" measured by

"prevailing professional norms." Strickland, supra, at 466 U.S.

at 687-88, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94. In the

context of a PCR petition challenging a guilty plea based on the

ineffective assistance of counsel, the second prong is established

when the defendant demonstrates a "'reasonable probability that,

5 A-5435-15T3
but for counsel's errors, [the defendant] would not have pled

guilty and would have insisted on going to trial.'" State v.

Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original)

(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

Defendant asserts that plea counsel was constitutionally

ineffective because he failed to file a motion to suppress the

motor vehicle stop. When a defendant's ineffective assistance of

counsel claim is based on a failure to file a suppression motion,

defendant must establish that the suppression motion has merit.

State v. O'Neal, 190 N.J. 601, 618–19 (2007); State v. Fisher, 156

N.J. 494, 501 (1998). "It is not ineffective assistance of counsel

for defense counsel not to file a meritless motion[.]" O'Neal,

supra, 190 N.J. at 619. Here, defendant has not demonstrated that

a motion to suppress the stop of his vehicle would have been

successful. Rather, based on his assessment of the totality of

the circumstances, Olsen had a reasonable and articulable

suspicion that defendant was intoxicated while driving. State v.

Stovall, 170 N.J. 346, 356 (2002).

The standards governing motor vehicle stops are familiar and

well-settled, and we need not review them at length here. See,

e.g., Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed.

2d 660 (1979); State v. Locurto, 157 N.J. 463, 470 (1997); State

v. Golotta, 178 N.J. 205, 213 (2003). An officer must have at

6 A-5435-15T3
least a reasonable and articulable suspicion of a motor vehicle

violation or criminal offense in order to effectuate an

investigatory stop. Golotta, supra, 178 N.J. at 213. The

underlying issue in this appeal is whether the officer had a

sufficient basis to stop defendant on suspicion he was under the

influence of alcohol. The answer turns on the reliability of the

neighbor's report.

Contrary to defendant's claims, Olsen did not act on an

anonymous tip, but rather pursuant to specific information

provided by his concerned neighbor. The principles in Golotta

guide our analysis here. We begin by looking at the source and

circumstances of the "tip." The tip did not come from someone

from the criminal milieu who might seek some favor in return.

Rather, it came from a citizen who, in this case, expressed concern

for public safety by reporting he had just witnessed defendant

acting intoxicated then driving from his residence.3 See id. at

219-20 (distinguishing between citizen and criminal informants).

If the informer is a "'concerned citizen' or a known person[,]"

Amelio, supra, 197 N.J. at 212-13 (quoting Wildoner v. Borough

of Ramsey, 162 N.J. 375, 390 (2000)), less scrutiny attaches to

3
It is likewise well-settled that symptoms of intoxication are
common knowledge capable of description by a lay person. State
v. Amelio, 197 N.J. 207, 214-15, cert. denied, 556 U.S. 1237, 129
S. Ct. 2402, 173 L. Ed. 2d 1297 (2009) (citations omitted).

7 A-5435-15T3
the informant's reliability because a citizen "acts with an intent

to aid the police in law enforcement because of his concern for

society or for his own safety." Ibid. (internal citation and

quotation marks omitted); see also State v. Williams, 251 N.J.

Super. 617, 626-27 (App. Div. 1991).

Here, while the neighbor is not named in the police report,

he provided information to Olsen in person, outside his residence,

and did not seek some favor in return. Olsen not only corroborated

the identity of the vehicle described by the citizen informant,

but also confirmed the specifically described vehicle, a red Ford

Explorer, had been driven to the nearest convenience store as

suggested by the neighbor. Further, defendant twice failed to

stop his vehicle when Olsen signaled by first activating his

vehicle's emergency lights, and then activating his vehicle's

siren.4

We are satisfied that Officer Olsen had a reasonable and

articulable suspicion to conduct the stop in light of: the

reliability of his concerned neighbor's providing detailed

information; the corroboration of the neighbor's identification

4
Even if Olsen's initial signal to stop were not supported by
reasonable suspicion, however, defendant's subsequent refusal to
stop was contrary to the well-settled principle that a defendant
does not have a right to elude police in response to an
unconstitutional stop. State v. Herrerra, 211 N.J. 308, 334-35
(2012)(citations omitted).

8 A-5435-15T3
of the vehicle, and the vehicle's location; and the danger to

public safety posed by the operation of a motor vehicle that twice

failed to stop when signaled to do so by law enforcement.

Therefore, a motion to suppress the stop was meritless, and the

PCR judge correctly ruled that defendant failed to establish a

prima facie case of ineffective assistance of counsel entitling

him to a hearing as defendant failed to satisfy either of the

Strickland prongs.

Affirmed.

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