                                NOT FOR PUBLICATION WITHOUT THE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-2820-16T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

JAMES L. ROGERS, JR.,

     Defendant-Appellant.
_____________________________

                   Submitted May 7, 2018 – Decided May 3, 2019

                   Before Judges O'Connor and Vernoia.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Gloucester County, Municipal Appeal No.
                   08-13.

                   Capehart & Scatchard PA, attorneys for appellant
                   (Amy M. Barca, on the briefs).

                   Charles A. Fiore, Gloucester County Prosecutor,
                   attorney for respondent (Margaret A. Cipparrone,
                   Senior Assistant Prosecutor, on the brief).

         The opinion of the court was delivered by

O'Connor, J.A.D.
      Defendant James L. Rogers, Jr. appeals from a January 23, 2017 Law

Division order convicting him of refusing to submit to a chemical breath test

(refusal), N.J.S.A. 39:4-50.4a, and displaying fictitious plates, N.J.S.A. 39:3-

33. On appeal, defendant asserts the following arguments for our

consideration:

            POINT I: THE LAW DIVISION ERRED IN
            REFUSING TO DISMISS ALL COUNTS ON THE
            BASIS OF DOUBLE JEOPARDY.

            POINT II: THE LAW DIVISION COMMITTED AN
            ERROR OF LAW IN AFFIRMING THE
            CONVICTION FOR REFUSAL TO TAKE A
            BREATH TEST WHEN THE RECORD ONLY
            REFLECTS THE CONCLUSORY ASSERTION
            THAT OFFICER BITTNER READ THE
            "STANDARD STATEMENT."

            POINT III: THE LAW DIVISION ERRED IN
            RELYING UPON DOUBLE HEARSAY EVIDENCE
            OUTSIDE OF THE MUNICIPAL COURT RECORD
            TO CONVICT DEFENDANT OF DRIVING WITH A
            FICTITIOUS TAG.

            POINT IV: THE LAW DIVISION ERRED IN NOT
            FINDING THAT DEFENDANT'S SPEEDY TRIAL
            RIGHTS WERE VIOLATED.

After reviewing the record and applicable legal principles, we affirm in part

and reverse in part.




                                        2
                                                                        A-2820-16T1
                                        I

      We summarize only the evidence pertinent to the issues on appeal.

Because of defendant's claim his right to a speedy trial was violated, see

Barker v. Wingo, 407 U.S. 514, 522 (1972), we also detail the procedural

history set forth in the record.

      In December 2008, the Deptford Township Police Department issued

defendant summonses for ten motor vehicle violations, which included charges

for refusal, N.J.S.A. 39:4-50.4a, driving with fictitious plates, N.J.S.A. 39:3-

33, and driving while intoxicated (DWI), N.J.S.A. 39:4-50. In addition, he

was charged with third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2).

      Because he was charged with an indictable offense, the matter was

transferred to the Gloucester County Prosecutor's Office so the prosecutor

could determine whether to present the indictable offense to the grand jury.

The prosecutor ultimately determined to downgrade the charge of resisting

arrest to disorderly persons hindering the arrest of another, N.J.S.A. 2C:29 -3.

The matter was then remanded to the municipal court for disposition of all of

charges. The record does not reflect the date this matter was returned to the

municipal court, but the trial was initially scheduled for April 22, 2009.




                                        3
                                                                         A-2820-16T1
      Defendant failed to appear for trial and a bench warrant was issued. He

was not apprehended until February 16, 2010, almost ten months later. When

arrested, he was released on his own recognizance and a trial was scheduled

for March 24, 2010. He failed to appear for the scheduled trial and another

bench warrant was issued.

      Twenty-one months later, on December 2, 2011, defendant was arrested.

He was subsequently released on his own recognizance and his municipal court

trial was scheduled for December 21, 2011. Two days before trial, defendant

retained an attorney. His attorney's request for an adjournment on the ground

he needed time to secure discovery was granted. The new trial date of January

25, 2012 was subsequently adjourned to February 22, 2012, because defendant

was hospitalized. On the latter date, defendant failed to appear and his

attorney advised the court he had made several attempts but was unable to

contact defendant. The court issued a bench warrant for defendant's arrest.

      Defendant was arrested and released six days later, and the trial was

rescheduled for April 4, 2012. In the interim, defendant's attorney was

relieved as counsel. On the day of trial, defendant appeared and requested

court-appointed counsel. He also requested the charges against him be

dismissed on the ground his right to a speedy trial was violated. The court

                                       4
                                                                       A-2820-16T1
denied defendant's motion, finding the delay was caused by defendant and not

the State. Defendant was assigned court-appointed counsel and the trial was

relisted for May 30, 2012.

      On the scheduled trial date, defense counsel requested and received an

adjournment in order to review discovery received that day. The trial was

scheduled for June 22, 2012 but subsequently adjourned to August 3, 2012,

when defense counsel stated he needed more time to prepare for trial.

      On August 3, 2012, defendant and his counsel appeared in court.

Defendant moved for dismissal on speedy trial grounds but his motion was

denied. The court again found "a big part of the delay" attributable to

defendant.

      Because a witness was unable to appear on August 3, 2012, the trial was

adjourned to September 14, 2012; it is unclear from the record which party

intended to call the witness who was unable to appear on August 3, 2012.

Although represented by counsel, defendant directly addressed the court and

requested the trial not be adjourned because he was postponing an operation

until the matter was resolved. The nature of and the necessity for the operation

was not disclosed. The court granted the requested adjournment.




                                       5
                                                                          A-2820-16T1
      On September 14, 2012, defendant renewed and the court again denied

his motion to dismiss the charges on the ground his right to a speedy trial was

violated. Defense counsel requested an adjournment, claiming he needed more

time to prepare for trial. The trial was rescheduled for February 1, 2013. The

trial proceeded and concluded on that date, four years and approximately one

month after defendant was charged on December 28, 2008.

      The only witnesses who testified at trial were two Deptford Police

Department police officers, Patrolman James Graham and Patrol Sergeant

William J. Bittner. On direct examination, Graham recounted that, on

December 20, 2008, he was on patrol when he noticed a car that appeared to

have a handwritten cardboard tag on the back where a license plate should

have been. Graham testified the tag was a "North Carolina temp" on which

eight numbers had been handwritten.

      Graham activated his overhead lights and siren, but defendant

accelerated and did not pull over for approximately one and one-half miles.

After stopping his car, defendant ran into a wooded area adjoining the road.

Graham followed on foot and, with the assistance of another officer, was able

to overcome and handcuff defendant, who resisted being placed under arrest.

Graham testified that "after running the VIN [Vehicle Identification Number],"

                                       6
                                                                       A-2820-16T1
he discovered the last "confirmed registration" on the car was a "Jersey tag,

PGL-25B," which did not match the tag on the car. In addition, defendant was

not the owner of the car.

       Graham's testimony on cross-examination further established the letters

"NC" appeared at the top of the tag, which appeared "handmade." The record

does not reveal the source of his information, but Graham also testified the tag

was a North Carolina temporary one that had expired on August 4, 2003.

Graham clarified it was through dispatch that he learned the car was registered

in New Jersey and should have had a license plate bearing the numbers and

letters PGL-25B.

       Bittner testified he appeared on the scene just after defendant was

handcuffed. Bittner noticed defendant's eyes were bloodshot and watery and

his breath smelled strongly of alcohol. Defendant also was "very, very

agitated." Bittner concluded defendant was under the influence of alcohol.

Both at the scene and after he was taken to the police station, defendant was

uncooperative and confrontational. On the charge for refusal, Bittner noted

that

             [d]uring the processing for the drunk driving charge,
             he refused to answer the standard statement. I went
             on to read the second part of the standard statement
             and he refused to answer from there . . . .
                                        7
                                                                        A-2820-16T1
             He was completely unresponsive to the standard
             statement for the drunk driving charge. We read it to
             him.

      Bittner clarified that defendant "just smiled" and did not respond when

Bittner read the "standard statement" to him. After Bittner read the "second

part of the statement" to him, defendant did not respond. Bittner concluded

defendant was refusing to take the breathalyzer test. When pressed how

defendant communicated he was unwilling to submit to such test, Bittner

testified:

             He didn't respond to the – he did not provide a yes
             answer when he was required to take the test. He just
             did not respond. And we read him the second
             paragraph, stating that anything other than a yes
             basically would constitute a refusal, and he did not
             respond to that either.

Given his uncooperative conduct, Bittner assumed it would be futile to attempt

to perform any psychophysical tests as well, and none was conducted.

      At the conclusion of the State's case, the municipal judge dismissed

three of the ten pending motor vehicle charges. At the conclusion of the trial,

he found defendant guilty of DWI, refusal, displaying fictitious plates, and

driving an unregistered vehicle. Defendant was also found guilty of the

remaining motor vehicle offenses, but they were ultimately merged with

defendant's other convictions for purposes of sentencing.
                                       8
                                                                       A-2820-16T1
        Defendant appealed to the Law Division for a trial de novo. 1 Following

that trial, the Law Division judge "affirmed" defendant's convictions for DWI,

refusal, and displaying fictitious plates, and rejected defendant's claim his right

to a speedy trial had been violated. Defendant appealed from the November 3,

2014 order embodying that judge's determinations.

        On review, we found the Law Division judge's determinations that

defendant was guilty of these three charges, as well as his finding defendant's

right to a speedy trial was not violated, were unsupported by any factual

findings, as required by Rule 1:7-4(a). See State v. Rogers, No. A-1700-14

(App. Div. Oct. 25, 2016). We therefore vacated the November 3, 2014 order

and, because the judge who had presided over the trial de novo had retired,

remanded the matter to the Law Division for a new trial de novo. Ibid.

        Following the second trial de novo, the Law Division judge found

defendant guilty of refusal and of displaying fictitious plates, but not guilty of

DWI. On the refusal charge, the judge found Bittner read defendant "the

standard statement for the drunk driving charges." The judge also noted that

Bittner "testified that he made the defendant aware that anything other than a

'yes' would basically constitute a refusal, however, the defendant did not


1
    Defendant did not appeal his conviction for driving an unregistered vehicle.
                                        9
                                                                          A-2820-16T1
respond." We note Bittner did not quite testify to the latter, but he did test ify

that he read the "second paragraph" of the standard statement to defendant and,

according to Bittner, the second paragraph he read to defendant essentially

stated that "anything other than a 'yes' basically would constitute a refusal."

      The Law Division judge determined defendant's responses after the two

statements were read to him were sufficient to establish that he refused to take

the breathalyzer test. Specifically, the judge noted defendant merely smiled

and, thus, was unresponsive after "statement number one was read" and also

did not respond after Bittner read the "second paragraph" to him.

      The Law Division judge further found there was sufficient evidence to

convict defendant of driving with a fictitious tag because there was unrefuted

testimony the car defendant was driving when pulled over displayed a

"cardboard temporary makeshift as his tag. The actual VIN on the vehicle

defendant was driving belonged to a New Jersey tag; however, defendant's

vehicle had a North Carolina cardboard temp."

      Based upon a lengthy recitation of the procedural history the municipal

judge had placed on the record, the Law Division judge rejected defendant's

claim his right to a speedy trial was violated. The latter judge found the trial

was delayed "due to [defendant's] own doing."

                                        10
                                                                          A-2820-16T1
      Finally, defendant argued double jeopardy should have precluded the

second trial de novo, maintaining jeopardy attached after the first hearing,

warranting the dismissal of all charges. The Law Division judge rejected this

contention as well, finding the Law Division was obligated to conduct the

second de novo trial because it was instructed to do so by the Appellate

Division.

      On the conviction for refusal, the court sentenced defendant to a ten-year

loss of license and required installation of an ignition interlock for three years,

and imposed a fine, assessment, surcharge, and costs. On the conviction for

displaying a fictitious tag, the court ordered defendant to pay a fifty-dollar

fine, a six-dollar assessment, and thirty-three dollars in costs.

                                         II

      As previously stated, defendant contends the judge who conducted the

second de novo trial in the Law Division erred because: (1) there was

insufficient evidence the police read the standard statement to defendant before

he refused to take the breathalyzer test, precluding finding defendant guilty of

refusal; (2) she relied upon inadmissible hearsay to find defendant drove with a

fictitious tag; (3) she refused to dismiss all charges on the ground jeopardy

attached at the conclusion of the first de novo trial; and (4) she refused to

                                        11
                                                                          A-2820-16T1
dismiss all charges on the ground defendant's right to a speedy trial was

violated.

      An appeal of a municipal court conviction must first be addressed by the

Law Division de novo. R. 3:23-8. The role of the Law Division is to make

independent findings of facts and conclusions of law based on the record

developed in the municipal court. State v. Avena, 281 N.J. Super. 327, 333

(App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). The Law

Division on an appeal from the municipal court does not search the record for

error, or determine if there was sufficient credible evidence to support a

conviction. The Law Division is required to decide the case completely anew

on the record made before the municipal judge, "giving due, although not

necessarily controlling, regard to the opportunity of the" judge to evaluate

witness credibility. Johnson, 42 N.J. at 157; see also State v. Cerefice, 335

N.J. Super. 374, 382-83 (App. Div. 2000). The Law Division performs "an

independent fact-finding function in respect of defendant's guilt or innocence,"

State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983), and the judge must

"make his [or her] own findings of fact." Avena, 281 N.J. Super. at 333

(quoting Ross, 189 N.J. Super. at 75).




                                         12
                                                                        A-2820-16T1
      We review the Law Division's decision employing the "substantial

evidence rule." State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012). "Our

review is limited to determining whether there is sufficient credible evidence

present in the record to support the findings of the Law Division judge, not the

municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App.

Div. 2005) (citing Johnson, 42 N.J. at 161-62). However, we review the Law

Division's interpretation of the law de novo without according any special

deference to the court's interpretation of "the legal consequences that flow

from established facts." Manalapan Realty, LP v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995).

      We first address defendant's contention there is insufficient evidence the

police read the standard statement to him before he refused to take the

breathalyzer test, warranting a reversal of his conviction for refusal. N.J.S.A.

39:4-50.4a provides in pertinent part:

            a. [T]he municipal court shall revoke the right to
            operate a motor vehicle of any operator who, after
            being arrested for a violation of [N.J.S.A.] 39:4-50
             . . . , shall refuse to submit to a test provided for in
             . . . ([N.J.S.A.] 39:4-50.2) when requested to do so,
            for not less than seven months or more than one year
            unless the refusal was in connection with a second
            offense under this section, in which case the
            revocation period shall be for two years or unless the
            refusal was in connection with a third or subsequent
                                         13
                                                                          A-2820-16T1
            offense under this section in which case the revocation
            shall be for ten years . . . .

      N.J.S.A. 39:4-50.2, referred to as the "implied consent" statute, reads in

relevant part:

            (a) Any person who operates a motor vehicle on any
            public road, street or highway . . . State shall be
            deemed to have given his consent to the taking of
            samples of his breath for the purpose of making
            chemical tests to determine the content of alcohol in
            his blood; provided, however, that the taking of
            samples is made in accordance with the provisions of
            this act . . . and at the request of a police officer who
            has reasonable grounds to believe that such person has
            been operating a motor vehicle in violation of the
            provisions of [N.J.S.A.] 39:4-50 . . . .

                  ....

            (e) No chemical test, as provided in this section, or
            specimen necessary thereto, may be made or taken
            forcibly and against physical resistance thereto by the
            defendant. The police officer shall, however, inform
            the person arrested of the consequences of refusing to
            submit to such test in accordance with section 2
            [C.39:4-50.4a] of this amendatory and supplementary
            act. A standard statement, prepared by the chief
            administrator [2], shall be read by the police officer to
            the person under arrest.


2
  Effective August 24, 2009, and pursuant to Reorganization Plan No. 03-
2009, the responsibility for the promulgation of standard statements regarding
implied consent to chemical breath test statutes was transferred from the Chief
Administrator of the Motor Vehicle Commission to the Attorney General. 41
N.J.R. 2825(a) (Aug. 3, 2009). See also N.J.S.A. 39:4-50.2(e) (providing the
                                       14
                                                                        A-2820-16T1
               [(Emphasis supplied) (footnote added).]

      In State v. Marquez, 202 N.J. 485 (2010), the Court elucidated upon the

interplay between the implied consent and refusal statutes. Id. at 490. The

Court noted the implied consent law, N.J.S.A. 39:4-50.2, provides that drivers

impliedly consent to submit to a breath test to measure the level of alcohol in

their blood, but this statute also provides that drivers are entitled to be

informed of the repercussions of refusing to submit to such a test. Marquez,

202 N.J. at 490. The refusal statute, N.J.S.A. 39:4-50.4a, provides the

penalties for refusing to submit to a breath test when required. Marquez, 202

N.J. at 490.

      The Marquez Court held the elements the State must prove to show a

defendant is guilty of refusal are:

               (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.




Attorney General "shall promulgate guidelines concerning the prosecution of"
driving while intoxicated and refusal violations).
                                       15
                                                                              A-2820-16T1
                [Id. at 503 (emphasis supplied) (first citing N.J.S.A.
                39:4-50.2(e); then citing N.J.S.A. 39:4-50.4a).]

      Here, defendant does not contest the State proved the first, second, and

fourth elements of the refusal statute, but he contends the State failed to prove

the third. He maintains there is no proof of what the police read to him.

Therefore, he argues, there is no proof the police read to him the standard

statement required by N.J.S.A. 39:4-50.2(e) before he refused to take the

breathalyzer test and, accordingly, the State did not prove the third element of

this offense.

      As noted, pursuant to N.J.S.A. 39:4-50.2, those required to provide a

breath sample are statutorily entitled to have a "standard statement" prepared

by the Attorney General read to them by the police, so they will understand the

ramifications of refusing to submit to a breathalyzer test. Marquez, 202 N.J. at

506 n.8. "That statement . . . differentiates between those who consent to

providing the required breath sample and all others, and it requires that an

additional statement 'be read aloud only if, after all other warnings have been

provided, a person detained for driving while intoxicated either conditionally

consents or ambiguously declines to provide a breath sample.'" State v.

Schmidt, 206 N.J. 71, 73-74 (2011) (quoting State v. Spell, 196 N.J. 537, 539

(2008)).
                                           16
                                                                         A-2820-16T1
      Here, defendant was charged with refusal in 2008. The standard

statement in effect in 2008 was issued on April 26, 2004, and provided in

pertinent part:

             1. You have been arrested for operating a motor
             vehicle while under the influence of intoxicating
             liquor or drugs[.] . . .

             2. The law requires you to submit to the taking of
             samples of your breath for the purpose of making
             chemical tests to determine the content of alcohol in
             your blood.

                   ....

             4. Any warnings previously given to you concerning
             your right to remain silent, and your right to consult
             with an attorney, do not apply to the taking of breath
             samples, and do not give you the right to refuse to
             give, or to delay giving, samples of your breath for the
             purpose of making chemical tests to determine the
             content of alcohol in your blood. You have no legal
             right to have an attorney, physician, or anyone else
             present, for the purpose of taking the breath samples.

                   ....

             6. If you refuse to provide samples of your breath you
             will be issued a separate summons for this refusal.

             7. Any response from you that is ambiguous or
             conditional, in any respect, to your giving consent to
             the taking of breath samples will be treated as a
             refusal to submit to breath testing.



                                       17
                                                                        A-2820-16T1
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.

      ....

11. I repeat, you are required by law to submit to the
taking of samples of your breath for the purpose of
making chemical tests to determine the content of
alcohol in your blood. Now, will you submit the
samples of your breath?

12. (ADDITIONAL INSTRUCTIONS FOR POLICE
OFFICER)

13. IF THE PERSON: REMAINS SILENT; OR
STATES, OR OTHERWISE INDICATES, THAT
HE/SHE REFUSES TO ANSWER ON THE
GROUNDS THAT HE/SHE HAS A RIGHT TO
REMAIN SILENT, OR WISHES TO CONSULT AN
ATTORNEY, PHYSICIAN, OR ANY OTHER
PERSON; OR IF THE RESPONSE IS AMBIGUOUS
OR CONDITIONAL, IN ANY RESPECT
WHATSOEVER, THEN THE POLICE OFFICER
SHALL READ THE FOLLOWING ADDITIONAL
STATEMENT:

14. FULL TEXT OF ADDITIONAL STATEMENT
FOLLOWS:
                          18
                                                          A-2820-16T1
            15. I previously informed you that the warnings given
            to you concerning your right to remain silent and your
            right to consult with an attorney, do not apply to the
            taking of breath samples and do not give you a right to
            refuse to give, or to delay giving, samples of your
            breath for the purpose of making chemical tests to
            determine the content of alcohol in your blood. Your
            prior response, silence, or lack of response, is
            unacceptable. If you do not agree, unconditionally, to
            provide breath samples now, then you will be issued a
            separate summons charging you with refusing to
            submit to the taking of samples of your breath for the
            purpose of making chemical tests to determine the
            content of alcohol in your blood.

            16. Once again, I ask you, will you submit to giving
            samples of your breath?

            [New Jersey Motor Vehicle Commission Standard
            Statement for Operators of a Motor Vehicle – N.J.S.A.
            39:4-50.2(e) (rev. & eff. April 26, 2004) (emphasis
            supplied).]

      As stated, defendant contends there is no proof the standard statement

was read to him; accordingly, the State failed to prove all of the elements

necessary to establish defendant was guilty of refusal. We disagree.

      It was undisputed that Bittner read the "standard statement" to

defendant, who "just smiled." Because of that response, Bittner read "the

second part of the standard statement" to defendant, who did not respond at all.

The Law Division judge determined defendant's reaction after the standard

statement was read to him and his lack of response after the "second part of the
                                       19
                                                                        A-2820-16T1
standard statement" was read to him established defendant was refusing to take

the breathalyzer test.

      First, we note the standard statement, which included the "additional

statement" - referred to by Bittner as the "second part of the standard

statement" - had been in existence for over four-and-one-half years by the time

Bittner read such statements to defendant. Given the length of time the

standard statement and additional statement had been in use, the court

reasonably accepted Bittner's testimony that he read both the standard

statement and second part of the standard statement as substantial credible

evidence establishing beyond a reasonable doubt that the requisite statements

were read to defendant prior to his refusal.

      Moreover, during his testimony, the references Bittner made to the

content of those statements unequivocally establish Bittner read the correct

statements to defendant. As noted, Bittner testified that, after he read the

standard statement to him, defendant merely responded with a smile. Because

defendant did not respond by consenting to the breath test, Bittner read "the

second part of the standard statement." Bittner referred to the "second part of

the standard statement" as the "second paragraph," and identified "the second




                                       20
                                                                          A-2820-16T1
paragraph" as that part of the document where it states "anything other than a

'yes' basically would constitute a refusal."

      It is implicit from Bittner's testimony that, after he read paragraph eleven

of the standard statement to defendant, which elicited the smile from defendant

– an ambiguous response –, Bittner followed the instruction in paragraph

thirteen and read paragraph fifteen to him. In pertinent part paragraph fifteen

states:

             Your prior response, silence, or lack of response, is
             unacceptable. If you do not agree, unconditionally, to
             provide breath samples now, then you will be issued a
             separate summons charging you with refusing to
             submit to the taking of samples of your breath for the
             purpose of making chemical tests to determine the
             content of alcohol in your blood.

      Thereafter, because he declined to respond, Bittner charged defendant

with refusal. See Marquez, 202 N.J. at 504 (quoting State v. Widmaier, 157

N.J. 475, 497 (1999) ("[A]nything substantially short of an unconditional,

unequivocal assent to an officer's request that the arrested motorist take the

[breath] test constitutes a refusal to do so.")).

      We are satisfied the record contains sufficient evidence supporting the

Law Division judge's factual determinations the State proved the third element

of the refusal statute. Under the two-court rule, we will not disturb those

                                         21
                                                                         A-2820-16T1
determinations as defendant has not demonstrated a "very obvious and

exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999). To

be sure, the better practice may have been to have had Bittner identify the

specific document he read to defendant and to seek the admission of such

document into evidence. However, the municipal prosecutor's failure to do so

in this case was not fatal to the State's case on the charge of refusal, for the

reasons stated.

      We next turn to defendant's contention the Law Division judge relied

upon inadmissible hearsay to convict him of displaying fictitious plates, N.J.

S.A. 39:3-33. This statute provides in relevant part:

             The owner of an automobile which is driven on the
             public highways of this State shall display . . . an
             identification mark or marks to be furnished by the
             division[.] . . .

             The identification mark or marks shall contain the
             number of the registration certificate of the vehicle
             ....

             No person shall drive a motor vehicle the owner of
             which has not complied with the provisions of this
             subtitle concerning the proper registration and
             identification thereof, nor drive a motor vehicle which
             displays a fictitious number, or a number other than
             that designated for the motor vehicle in its registration
             certificate . . . .

             [(Emphasis added).]
                                        22
                                                                           A-2820-16T1
      The Law Division judge found there was unrefuted testimony the car

defendant was driving when pulled over displayed a "cardboard temporary

makeshift as his tag. The actual VIN on the vehicle defendant was driving

belonged to a New Jersey tag; however, defendant's vehicle had a North

Carolina cardboard temp."

      Defendant argues the evidence establishing that "another license plate

should have been on the vehicle" was Graham's testimony of what he had been

informed by the dispatch officer when Graham "ran the VIN." That is, during

his testimony, Graham merely repeated what the dispatch officer told him,

which was that the car was registered in New Jersey and the plate number the

State of New Jersey had assigned to the car.

      Defendant did not object when the officer testified to what he learned

from the dispatch officer; therefore, we analyze defendant's contention the

court relied on inadmissible hearsay in the context of Rule 2:10-2, the plain

error rule. We may only reverse if we are satisfied that the claimed error "is of

such a nature as to have been clearly capable of producing an unjust result."

R. 2:10-2.

      N.J.S.A. 39:3-33 prohibits a person from driving a vehicle which

displays a fictitious number or a number other than that designated for the

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motor vehicle in its registration certificate. In order to determine whether the

number on the tag was fictitious or was one not designated for the ca r

defendant was driving, evidence of where the car was registered and the plate

number assigned to such car had to be admitted into evidence in accordance

with the Rules of Evidence.

       The evidence used to determine whether the numbers on the tag on the

car were fictitious or not designated for the car defendant was driving was

derived from the dispatch officer and, thus, constituted hearsay. The

information the dispatch officer conveyed to Graham was an out-of-court

statement offered in evidence to prove the truth of the matter asserted, see

N.J.R.E. 801(c), for which no exception existed, see N.J.R.E. 803. Therefore,

the information provided by the dispatch officer was inadmissible hearsay, see

N.J.R.E. 802.

      As inadmissible evidence provided the basis for the Law Division

judge's conclusion defendant violated N.J.S.A. 39:3-33, the claimed error "is

of such a nature as to have been clearly capable of producing an unjust result."

R. 2:10-2. Accordingly, despite defense counsel's failure to object to the

admission of the subject evidence, the plain error rule compels we reverse and

vacate the conviction for displaying a fictitious tag.

                                        24
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      Defendant argues his rights to a speedy trial were violated because his

trial in municipal court was not reached for over four years. We reject his

contention as unsupported by the record. Defendant's specific arguments are

without sufficient merit to warrant discussion in a written opinion. See R. 2:3-

11(e)(2).

      We merely note that, although a delay of three months is attributable to

the State during the period the county prosecutor was deciding whether to

submit one of the offenses to the grand jury, overwhelmingly the delay in this

matter was caused by defendant, who disappeared for over two and one-half

years, was hospitalized, and was granted a number of adjournments in order to

retain counsel or prepare for trial. Delay caused by a defendant will "not

weigh in favor of finding a speedy trial violation." State v. Gallegan, 117 N.J.

345, 355 (1989).

      Finally, defendant asserts the Law Division judge erred by refusing to

dismiss all counts after we remanded this matter. Defendant argues jeopardy

attached during the first de novo trial. We disagree.

      The Double Jeopardy Clause of the Fifth Amendment of the United

States Constitution, and Article I, Paragraph 11 of the New Jersey Constitution

protect an individual from being twice placed in jeopardy for the same offense.

                                       25
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State v. Kelly, 201 N.J. 471, 484 (2010). Under both provisions, a defendant

is protected against "a second prosecution for the same offense after acquittal";

"a second prosecution for the same offense after conviction"; and "multiple

punishments for the same offense." Ibid. (quoting United States v.

DiFrancesco, 449 U.S. 117, 129 (1980)). Here, none of these events occurred.

      Affirmed in part and reversed in part. We do not retain jurisdiction.




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