                                 NOT FOR PUBLICATION WITHOUT THE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-3558-16T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

CARROLL T. QUINN,

     Defendant-Appellant.
__________________________

                    Argued October 2, 2018 – Decided October 12, 2018

                    Before Judges Fisher, Geiger and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Sussex County, Municipal Appeal No. 15-08-
                    16.

                    John P. Velez argued the cause for appellant (Forster
                    Arbore Velez, attorneys; John P. Velez, of counsel and
                    on the briefs).

                    Nikoletta P. Agouras, Assistant Prosecutor, argued the
                    cause for respondent (Francis A. Koch, Sussex County
                    Prosecutor, attorney; Nikoletta P. Agouras, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Carroll T. Quinn appeals from the Law Division's March 22,

2017 order finding him guilty on trial de novo of refusal to submit to a chemical

test, N.J.S.A. 39:4-50.4a (refusal statute), and failure to maintain a lane,

N.J.S.A. 39:4-82. For the reasons that follow, we affirm in part and vacate and

remand in part.

      On December 25, 2013, Corporal Frank Schomp of the Sparta Police

Department was dispatched to the scene of a late night, one-vehicle accident to

find defendant standing by his car, which had swerved off the road and crashed

into a utility pole, causing the pole to fall. Defendant admitted he was the driver

of the vehicle involved in the accident and had lost control of the vehicle after

he looked down. Defendant told Schomp he was not injured.

      Schomp detected the odor of alcohol on defendant's breath and noticed

defendant's eyes were bloodshot.         Due to weather conditions, Schomp

transported defendant to the police station where he conducted a series of field

sobriety tests in the station's sally port. Defendant slurred his speech but was

able to recite the entire alphabet during the alphabet test. He was unable to

perform a one-leg stand without putting his foot down for balance. Defendant

was unable to follow instructions during the finger-to-nose test, swayed during




                                                                           A-3558-16T3
                                        2
the test, and was unable to touch the tip of his nose despite six attempts.

Defendant was also unable to perform the heel to toe, walk and turn test.

       Defendant was arrested for driving while intoxicated (DWI), N.J.S.A.

39:4-50, and brought into the processing area, where he was Mirandized,1

advised of his obligation to provide breath samples, and read the Attorney

General's Standard Statement For Motor Vehicle Operators (N.J.S.A. 39:4-

50.2(e)).

       When asked to submit samples of his breath for testing, defendant

repeatedly refused to do so. Schomp attempted to initiate the breath test anyway

but was given a controlled failure. Defendant was then transported to the State

Police barracks in Sussex where he, again, refused to submit to breath testing.

       During defendant's detention, Schomp asked him a series of questions

from the standard drinking/driving questionnaire. Defendant said he was sick

with a sore throat and a cold, was under the care of a doctor, was taking

medication for blood pressure and cholesterol, but was not injured. He said he

had two glasses of wine in one hour at Casa Bellisimo, where he ate dinner

between 11:00 p.m. and 11:30 p.m.




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-3558-16T3
                                       3
      Schomp testified defendant was swaying and staggering when he walked,

swaying when he stood, had slow speech and hand movements, had bloodshot

eyes and a flushed face, and an odor of alcohol. Schomp otherwise described

defendant as being polite, calm, and cooperative.

      Defendant was charged with DWI; refusal to submit to a chemical test;

failure to maintain a lane; reckless driving, N.J.S.A. 39:4-96; and improper use

of a cellphone, N.J.S.A. 39:4-97.3.

      Defendant served an initial discovery request on January 10, 2014 . The

court appearance was held on January 16, 2014. The matter was adjourned to

February 24, 2014 because of incomplete discovery. The municipal prosecutor

provided discovery on January 10, 2014, February 19, 2014, December 4, 2014,

and January 20, 2015. Discovery was delayed, in part, due to difficulty in

obtaining a dashboard video from the police. The discovery delays led to several

trial postponements.

      The trial was also postponed several times due to defendant's actions.

Defendant was out-of-state at one point and failed to appear on September 18,

2014. On November 17, 2014, defendant filed a motion pursuant to State v.

Laurick, 120 N.J. 1 (1990). Two days later, defendant advised the municipal

court that he had filed an application for post-conviction relief (PCR) that was


                                                                        A-3558-16T3
                                       4
scheduled for hearing later that year. Defendant also moved to stay the trial,

which was denied on December 29, 2015, and for leave to appeal from the

interlocutory order, which was denied on January 7, 2016.

      In addition, the January 26, 2015 trial date was adjourned due to inclement

weather. Two other trial adjournments were requested by defendant following

receipt of complete discovery to allow his experts to review the discovery.

      On February 23, 2015, the case was heard by a substitute municipal court

judge. On May 13, 2015, the matter was scheduled again, and the municipal

court judge determined a trial date needed to be scheduled. The matter was

ultimately transferred to Franklin Borough Municipal Court due to a judi cial

conflict with an anticipated witness.

      Defendant moved to dismiss the charges on speedy trial grounds because

discovery had been delayed for more than one year. The motion was heard on

March 23, 2016. The municipal court judge reserved decision and the trial

started that day. Trial recommenced on May 11, 2016.

      Schomp testified for the State as its sole witness consistent with the facts

set forth above. Defendant moved for judgment of acquittal after the State

rested. The judge denied the motion.




                                                                          A-3558-16T3
                                        5
      Defendant did not testify. He called Dr. Steven Bloomfield as an expert

in neurosurgery. Bloomfield testified he performed an independent medical

examination of defendant on February 27, 2016. Prior to the examination,

Bloomfield had reviewed some of defendant's medical records, the police

reports, videos, and police photos. Bloomfield concluded "with a reasonable

degree of medical certainty that [defendant] sustained enough injuries to have a

concussion, which was associated with significant amnesia and more likely than

not was associated with a compromise in his cognitive function, which lead (sic)

to poor judgment." Dr. Bloomfield testified that an individual suffering from

symptoms of a concussion would have difficulty following the instruct ions

Schomp relayed to defendant during the field tests.

      Defendant also called Redina Xhudo as a witness. She testified in her

capacity as the owner of Casa Bellisimo, the restaurant where defendant had

dined before the accident. Xhudo testified defendant had an appetizer and "two

[glasses of] pinot grigio wine."

      The third day of trial took place on June 22, 2016. Herbert H. Leckie

testified for defendant as an expert in standardized field sobriety testing. Leckie

testified that the reliability of the sobriety tests conducted were compromised

due to defendant's age, potential injury, improperly given instructions, and


                                                                           A-3558-16T3
                                        6
issues with test scoring. Leckie conceded that "whatever was shown on those

tests has to be taken in conjunction with [defendant's] bloodshot eyes, slurred

speech, the admission of drinking, [and] the opinion of the officer."        After

defendant rested he moved, again, for judgment of acquittal. The municipal

court judge denied the motion for judgment of acquittal and the reserved speedy

trial motion.

      The municipal court judge found defendant guilty of DWI, refusal to

submit to chemical tests, and failure to maintain a lane but not guilty of reckless

driving and improper use of a cellphone. The court imposed a ten-year license

suspension and two-year ignition interlock requirement on the DWI and refusal,

and applicable fines and penalties on each offense.

      Defendant appealed to the Law Division, which granted a stay of the

suspension of his driving privileges subject to extensive conditions. Following

a trial de novo, the Law Division judge found defendant guilty of refusal to

submit to a chemical test and failure to maintain a lane but not guilty of DWI.

Defendant was sentenced to a ten-year license suspension, a two-year ignition

interlock requirement on the refusal, and applicable fines and penalties on both

offenses.




                                                                           A-3558-16T3
                                        7
      In his written statement of reasons, the Law Division judge found plaintiff

had "established by a preponderance of the evidence that [d]efendant violated

the refusal statute." With regard to the speedy trial assertions, the judge noted

the delays were attributable to both defendant and the State, and defendant was

not prejudiced by the delay.

      The judge concluded Schomp had probable cause to arrest defendant for

DWI based on his observations and experience, but, ultimately, plaintiff failed

to prove beyond a reasonable doubt that defendant was operating a motor vehicle

while under the influence, as the DVD recordings of the sobriety tests were not

helpful due to lack of quality and, to the extent defendant appeared off-balance

during his tests, could have been attributed to the fact that he had just been

involved in a car accident, at least in part. This appeal followed.

      Defendant raises the following points:

            POINT I

            THE SUMMONSES ISSUED TO DEFENDANT,
            CARROLL T. QUINN, SHOULD BE DISMISSED
            BECAUSE HIS RIGHT TO A SPEEDY TRIAL
            AFFORDED     BY   THE   UNITED   STATES
            CONSTITUTION AND ITS APPLICATION TO THE
            STATE VIA THE FOURTEENTH AMENDMENT HAS
            BEEN VIOLATED BY THE STATE'S DELAY IN
            PROVIDING NECESSARY RELEVANT DISCOVERY
            FOR OVER ONE-YEAR.


                                                                         A-3558-16T3
                                        8
            POINT II

            THE CONVICTION FOR VIOLATING N.J.S.A. 39:4-
            50.[4a] SHOULD BE REVERSED BECAUSE AT THE
            TRIAL DE NOVO THE COURT APPLIED THE
            INCORRECT      PREPONDERANCE    OF    THE
            EVIDENCE BURDEN OF PROOF AS OPPOSED TO
            THE PROOF BEYOND A REASONABLE DOUBT
            STANDARD.

            POINT III

            NOTWITHSTANDING THE LAW DIVISION'S
            INCORRECT APPLICATION OF THE BURDEN OF
            PROOF, THE STATE HAS FAILED TO PROVE
            BEYOND A REASONABLE DOUBT THAT MR.
            QUINN IS GUILTY OF REFUSAL TO CONSENT TO
            A BREATH SAMPLE, CONTRARY TO THE
            PROVISIONS OF N.J.S.A. 39:4-50.[4a].

      Our standard of review is well-settled. The trial judge's factual findings

will not be disturbed where they are supported by sufficient credible evidence

in the record. State v. Locurto, 157 N.J. 463, 471 (1999). We defer to the trial

court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App.

Div. 2000). In an appeal from a de novo hearing on the record, we consider only

the action of the Law Division and not that of the municipal court. State v.

Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001).

      A determination by a trial judge regarding whether defendant was

deprived of his right to a speedy trial should not be overturned unless clearly an


                                                                          A-3558-16T3
                                        9
abuse of discretion. State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009);

State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). This standard is

highly deferential to the trier of fact. We will only reverse if the decision is

shown to be so erroneous that no reasonable analysis could have produced it.

      The Sixth Amendment, by way of the Due Process Clause of the

Fourteenth Amendment, guarantees the accused the right to a speedy trial in

state prosecutions. Barker v. Wingo, 407 U.S. 514, 515 (1972) (citing Klopfer

v. North Carolina, 386 U.S. 213, 222 (1967)); see State v. Szima, 70 N.J. 196,

200-01 (1976) (discussing the speedy-trial right under Art. I, paragraph 10 of

the New Jersey Constitution and the federal constitution).

      The speedy-trial right protects a defendant's interest in minimizing

"pretrial incarceration," the accused's pretrial "anxiety and concern," and delay

that impairs the ability to present a defense. Barker, 407 U.S. at 514. Alleged

violations of the speedy trial right are assessed by balancing four factors: "(1)

the length of the delay, (2) the reasons for the delay, (3) whether and how

defendant asserted his speedy trial right, and (4) the prejudice to defendant

caused by the delay." State v. Townsend, 186 N.J. 473, 487 (2006).

      In applying the four-part test, "[n]o single factor is a necessary or

sufficient condition to the finding of a deprivation of the right to a speedy trial."


                                                                             A-3558-16T3
                                        10
Tsetsekas, 411 N.J. Super. at 10 (citing Barker, 407 U.S. at 533). "Rather, the

factors are interrelated," and a fact-sensitive analysis is necessary so that each

factor is "considered in light of the relevant circumstances of each particular

case." Ibid. Each application for dismissal based on speedy trial principles is

fact-sensitive, and requires "a case-by-case analysis rather than a bright-line

time limitation." State v. Cahill, 213 N.J. 253, 270 (2013). Fairness calls for

varying timelines depending on individual circumstances — a delay of 344 days

between arrest and resolution was unacceptable in one case, while in another, a

thirty-two-month delay was deemed justifiable. Id. at 271.

      Defendant argues the delay caused by the State's failure to provide

necessary discovery for over one year violated his right to a speedy trial since

the discovery requested was always in the possession of the police. We disagree.

      Defendant contends he was prejudiced by the delay, asserting this

prejudice need not manifest itself, as any person charged with DWI "would

experience some measure of anxiety by the existence of a pending and long -

unresolved charge," especially if the defendant is facing the possibility of a

lengthy mandatory jail term as a repeat offender. Defendant further contends

the delay impeded his retention of experts and impacted the weight given to their

testimony.


                                                                          A-3558-16T3
                                       11
      Regarding the first and second factors, the length and reasons for the

delay, we recognize the delays in providing discovery resulted in trial

postponements. However, defendant was also responsible for some of the delay.

Defendant's Laurick motion, PCR petition, and interlocutory appeal contributed

to the delay, as did his being out-of-state. "[A]ny delay that defendant caused

or requested would not weigh in favor of finding a speedy trial violation." State

v. Long, 119 N.J. 439, 470 (1990) (quoting State v. Gallegan, 117 N.J. 345, 355

(1989)). There is no indication in the record that the State delayed discovery or

used adjournments to gain a tactical advantage. Given these circumstances, the

length of the delay did not violate defendant's right to a speedy trial.

      The third factor requires defendant to assert the right to a speedy trial.

Defendant first asserted that right at trial on March 23, 2016. Defendant did not

assert his right to a speedy trial until the first day of trial on March 23, 2016,

and did not indicate he was ready to proceed to trial at an earlier time but for the

State's delay. See State v. May, 362 N.J. Super. 572, 598 (App. Div. 2003)

(considering when and how the defendant asserted his speedy trial right) .

      The fourth factor considers the prejudice to defendant caused by the delay.

Barker "identified three such interests: (i) to prevent oppressive pretrial

incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to


                                                                            A-3558-16T3
                                        12
limit the possibility that the defense will be impaired." Barker, 407 U.S. at 532.

Defendant was not incarcerated pretrial.      The delay did not cause loss of

employment or other opportunities nor did it drain his finances. Defendant's

experts received and reviewed the discovery and were able to testify. While

defendant claims the delay affected his experts, this argument is unpersuasive.

      We are satisfied that defendant's speedy trial rights were not violated. The

denial of defendant's motion to dismiss on those grounds was not an abuse of

discretion.

      Defendant does not argue any other grounds for setting aside his

conviction for failure to maintain a lane. Accordingly, his conviction and

sentence for that offense are affirmed.

      We next address defendant's claim that the Law Division used the wrong

standard of proof to determine if he violated the refusal statute. The trial court

found defendant violated the refusal statute by a preponderance of the evidence

rather than beyond a reasonable doubt. Violations of the refusal statute must be

proven beyond a reasonable doubt. State v. Cummings, 184 N.J. 84, 89 (2005).

The State concedes the refusal charge must be remanded to the Law Division.

We vacate defendant's conviction for refusal to submit to a chemical test and

remand to the Law Division to determine whether defendant violated N.J.S.A.


                                                                          A-3558-16T3
                                       13
39:4-50.4a beyond a reasonable doubt. In light of this ruling, we do not reach

Point III.

      Affirmed in part and vacated and remanded in part. We do not retain

jurisdiction.




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                                     14
