                        NOT FOR PUBLICATION WITHOUT THE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 only binding 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-0489-13T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FRANKLIN MARINHO,

     Defendant-Appellant.
__________________________

              Argued September 28, 2016 – Decided August 21, 2017

              Before Judges Fuentes, Simonelli and Gooden
              Brown.

              On appeal from the Superior Court of New
              Jersey, Law Division, Bergen County, Municipal
              Appeal No. 001-20-13.

              James B. Seplowitz argued the cause for
              appellant (Foy & Seplowitz LLC, attorneys; Mr.
              Seplowitz, of counsel and on the brief).

              Elizabeth R. Rebein, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Gurbir S. Grewal,
              Acting Bergen County Prosecutor, attorney;
              Jacqueline Choi, Special Deputy Attorney
              General/Acting   Assistant  Prosecutor,   of
              counsel and on the brief).

PER CURIAM
     On September 27, 2012, the North Arlington Municipal Court

found   defendant   Franklin   Marinho   guilty   of   driving   while

intoxicated (DWI), N.J.S.A. 39:4-50.1    This was defendant's third

DWI conviction. On October 11, 2012, the municipal court sentenced

defendant pursuant to N.J.S.A. 39:4-50(a)(3) to serve 180 days of

imprisonment in the Bergen County Jail, imposed the mandatory

fines and penalties, revoked defendant's right to operate a motor

vehicle in this State for ten years, and directed him to install

an ignition interlock device that would remain for the ten-year

period of suspension.     On that same day, the municipal court

entered an order staying the execution of the sentence, but

excluded the requirement to install the ignition interlock device,

pending the outcome of defendant's appeal for a de novo review

before the Law Division as provided under Rule 3:23-8.2

     On August 13, 2013, defendant appeared before the Law Division

represented by private counsel for a trial de novo of his municipal

court conviction.     Defendant argued that the municipal court


1
  The municipal court also convicted defendant of failing to
produce the vehicle's registration card, N.J.S.A. 39:3-29(b);
delaying traffic, N.J.S.A. 39:4-56; and failing to produce the
insurance identification card, N.J.S.A. 39:3-29(c). Defendant is
not challenging his conviction on these Title 39 infractions in
this appeal.
2
  The decision to grant or deny an application for a stay of the
revocation of a defendant's driver's license in DWI cases pending
appeal is now governed by the standards established by the Supreme
Court in State v. Robertson, 228 N.J. 138, 150-52 (2017).
                            2                              A-0489-13T1
violated his constitutional right to a speedy trial because it

took a total of 312 days, consisting of four pretrial court

appearances and six non-sequential trial days, to reach a final

decision.     Defense counsel also claimed that unrebutted expert

testimony   from   a   toxicologist   established   that   the   arresting

officer's description of defendant as "being passed out behind the

wheel of a car, with vomit on him, was consistent with someone

suffering from carbon monoxide poisoning."          Stated differently,

counsel argued that the State did not prove, beyond a reasonable

doubt, that defendant was under the influence of alcohol at the

time of his arrest.

     After conducting a de novo review of the record developed

before the municipal court, Rule 3:23-8(a)(2), and applying a

deferential standard of review to the factual findings based on a

witness's credibility, State v. Johnson, 42 N.J. 146, 157 (1964),

the Law Division judge found defendant guilty of DWI.             Applying

the four-factor balancing analysis in Barker v. Wingo, 407 U.S.

514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972), the

judge also rejected defendant's speedy trial argument.            The Law

Division judge imposed the same sentence as the municipal court

and "stayed all fines/penalties pending appeal," but ordered that

the ignition interlock device remain installed pending and during

the appeal.

                               3                                   A-0489-13T1
       Defendant filed a Notice of Appeal to this court on September

27, 2013.    On September 19, 2014, this court, on its own motion,

entered an order pursuant to Rule 2:5-3(f) remanding the matter

to    "the   Borough     of   North   Arlington   Municipal   Court    for

reconstruction of the proceedings on April 26, 2012."         We directed

the municipal court to complete this task within sixty days.

After the reconstruction of the record was completed, we directed

the Law Division to reconsider its earlier decision.

       On May 8, 2015, defendant filed a motion requesting that we

enforce our order dated September 19, 2014.         On May 27, 2015, we

granted defendant's unopposed motion, remanded the matter to the

Law Division, and directed the "reconstruction of the record

. . . be completed within thirty (30) days[.]"        We stated that we

would grant no further extensions, and again remanded the matter

to the Law Division for reconsideration.

       After receiving the reconstructed record from the municipal

court, Judge Susan J. Steele, who was then the Presiding Judge of

the Criminal Part,3 conducted a second trial de novo on January

20, 2016.    Judge Steele was not the judge who decided this case

in August 2013.        Before hearing the arguments of counsel, Judge

Steele comprehensively reviewed the procedural history of the case

and noted that proceedings before the municipal court were delayed


3
    Judge Steele has since retired.
                              4                                   A-0489-13T1
a   number   of   times    due   to       technical   problems   with   the   audio

recording equipment.          The actual trial was also adjourned at

defense counsel's request due to the unavailability of a witness.

Against this procedural backdrop, Judge Steele heard the arguments

of counsel and reserved judgment.

       The case reconvened on February 2, 2016, at which time Judge

Steele placed her factual findings on the record and explained the

legal basis for finding defendant guilty of DWI.                    Based on the

record developed before the municipal court, Judge Steele found

that at approximately 6:00 p.m. on November 20, 2011, defendant

drove to a restaurant located in the Town of Kearny in Hudson

County to eat "his first meal of the day[.]"                       According to

defendant, he also "consumed five mugs of wine," which he described

as "ten ounce mixed drinks, consisting of half wine and half Seven-

Up."

       At approximately 8:00 p.m., James O'Connor, the Chief of

Police of the Township of Lyndhurst in Bergen County, arrived at

the restaurant with a friend.              O'Connor was off-duty and had gone

to the restaurant to eat dinner.                O'Connor testified as a witness

for    the   State.       Defendant       did   not   know   O'Connor   before   he

encountered him at the restaurant.                 The two men started talking

while seated at the restaurant's bar. O'Connor testified defendant

struggled to sit on the bar stool and had a "flushed face,

                                      5                                   A-0489-13T1
bloodshot watery eyes, and slurred speech."      Defendant left the

restaurant at approximately 10:00 p.m.      Judge Steele found that

after leaving the restaurant, defendant sat in his car for about

fifteen minutes talking to a friend on his cellphone.       When the

conversation ended, defendant drove away.

      North Arlington Police Officer Joseph Rinzivillo testified

that at approximately 10:46 p.m. on November 20, 2011, he was

driving his marked patrol car southbound on Ridge Road when he

"observed the defendant, Mr. Marinho, asleep at the wheel at a red

light . . . with his head to the steering wheel."    When the traffic

light turned to green, Rinzivillo stepped out of the patrol car,

walked toward defendant's car, and knocked "on the window several

times, trying to get Mr. Marinho's attention.       He would not wake

up.   [Rinzivillo] then proceeded to open Mr. Marinho's door and

he woke up."   Rinzivillo testified that he "smelled a strong odor

of alcohol emanating from [defendant's] breath."      Rinzivillo then

placed defendant's car in park.

      Rinzivillo described what happened next:

          Q. You put the vehicle in park.

          A. Put his vehicle in park.   He was out of it.

          Q. Okay.   Did he say anything at that time to
          you?

          A. He did not say anything to me.

                . . . .
                            6                                 A-0489-13T1
          He just woke up stunned.

          Q. Okay.   Did you make any other observations?

               . . . .

          A. I saw some vomit on his shirt and a strong
          odor of alcoholic beverage emanating from his
          breath.   The whole car was really, really
          strong.

               . . . .

          I asked Mr. Marinho has he been drinking
          tonight. He told me yes, he has. He was out
          to dinner in Kearny.     I asked him what he
          [was] drinking and he said wine, mugs of wine.

          Q. Okay. At some point in time did you ask
          the defendant to step out of his vehicle?

          A. Yes, I did.

               . . . .

          Q. Tell me what happened when the defendant
          came out of his car?

          A. He was swaying, staggering and slurring his
          speech as I was instructing him to do some
          field sobriety testing.

     Rinzivillo asked defendant to perform a field sobriety test.

He directed defendant to walk nine steps heel-to-toe with his

hands to the side of his body.    When defendant reached the ninth

step, Rinzivillo asked defendant to "turn around and pivot and

walk back nine steps in a straight line[.]"   Although he attempted

to perform the test, Rinzivillo testified defendant was unable to

follow the instructions.   "He was swaying back and forth, having

                             7                              A-0489-13T1
his arms trying to balance himself.          And for his safety, as well

as mine, I had to stop the test."           Based on these observations,

Rinzivillo concluded defendant was "highly intoxicated" and placed

him under arrest for DWI.        According to Rinzivillo, defendant

"kept apologizing" and said he had had "too much to drink."

     Rinzivillo transported defendant in his patrol car to the

North Arlington Police Station.        At the station, Rinzivillo read

defendant his Miranda4 rights.          Judge Steele found defendant

voluntarily consented to waive his Miranda rights and admitted to

Rinzivillo "that he had consumed five mugs of wine."             Judge Steele

found defendant "cried constantly," admitted he drove his car

while   intoxicated,   stated   that   he    "had   too   much    to   drink,"

apologized to the officers, and "begged for the police to release

him."

     Defendant claimed he was disoriented and disheveled during

the arrest because he inadvertently inhaled carbon monoxide gas

that had seeped into the interior of his car from a defective

exhaust pipe.   According to defendant, he discovered this alleged

problem when he took his car to a mechanic on November 28, 2011,

eight days after his arrest.       The mechanic used "a dual smoke

detector carbon monoxide detector" he purchased from Home Depot



4
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
                            8                            A-0489-13T1
to detect the presence of the gas in the interior compartments of

the car.

     Judge Steele found the mechanic "placed the device on the

trunk of the car and determined that the car had an exhaust leak

in the trunk which he repaired."    At trial, defendant called Dr.

Gary Lage to establish the physiological effects of inhaling carbon

monoxide gas.   Dr. Lage had a Bachelor of Science in Pharmacy from

Drake University, a Master of Science in Pharmacology from the

University of Iowa, and a Doctor of Philosophy in Pharmacology

from the University of Iowa.    The municipal court judge admitted

him as an expert in the field of toxicology.

     Dr. Lage described the toxicological effects of inhaling

carbon monoxide:

           At low levels it'll cause dizziness, vomiting.
           At higher levels it'll cause nausea and lack
           of coordination. At higher levels it'll cause
           sleepiness and even coma, and ultimately
           death, and it's not so much the level of carbon
           monoxide in the air, but the level of
           carboxyhemoglobin. That's the molecule that's
           formed once it binds with hemoglobin. As the
           concentration of carbonxyhemoglobin goes up,
           the toxic effects go up.

           Q. And is there any way for a person to notice
           that they are inhaling carbon monoxide?

           A. No. Just like we don't recognize carbon
           dioxide, you don't recognize carbon monoxide.
           It has no odor. So there's no way to notice
           it. That's why we all have carbon monoxide
           detectors in our houses, is because there's
           . . . no early warning of the effects.
                             9                               A-0489-13T1
           Q. And if someone inhaled carbon monoxide,
           . . . setting aside the cases of fatality, can
           it cause someone to pass out for instance?

           A. Yeah.   Sleepiness, dizziness, ultimately
           coma, or passing out, whatever word you want
           to put to it.

      Dr. Lage made clear on cross-examination that his opinion

concerning     defendant's     exposure    to   carbon    monoxide   gas    was

predicated on the veracity of the mechanic's report, which stated:

"I   believe   that   carbon    monoxide   could   have    gotten    into   the

passenger compartment from the trunk through the armrest in the

backseat that when placed down leads directly into the trunk."

Dr. Lage conceded he did not know whether the armrest was up or

down at the time defendant was driving his car on November 20,

2011.   However, Dr. Lage indicated that carbon monoxide gas could

have seeped into the vehicle's passenger compartment even if the

armrest was down "because it's not going to be a complete seal."

      Judge Steele made the following findings with respect to Dr.

Lage's5 testimony:

           The doctor, the toxicologists Dr. Lage, was
           fully conversant on the physical effects of
           carbon monoxide poisoning. However, he relied
           on the mechanic's report in coming to the
           conclusion that defendant's behavior was
           likely the result of exposure to carbon
           monoxide rather than alcohol. He did not have

5
  The transcript of Judge Steele's oral opinion contains a
typographical error in the spelling of this witness' name. We use
the correct spelling.
                            10                            A-0489-13T1
            the opportunity, unfortunately, to observe the
            defendant at the relevant time. He did not
            have the benefit of blood tests potentially
            supporting his theory.      And his and the
            mechanic's theory of how the gas found its way
            into defendant's car I find to be speculative
            at best. He seemed to hypothetically say if
            this then that, if this then that without
            having full information in coming to his
            conclusions.

            Thus the expert's testimony provides only an
            unsupported theory which in this [c]ourt's
            opinion does not overcome the cumulative
            evidence to the contrary.

     Judge Steele found defendant guilty of DWI based on Officer

Rinzivillo's testimony, which she characterized as "replete" with

observations supporting his opinion that defendant was under the

influence of alcohol.   Judge Steele found that at the time Officer

Rinzivillo arrested defendant, he had slurred speech, vomit on his

shirt, and was unable to walk unassisted.       Defendant was also

unable to

            locate any of the necessary documents other
            than his driver's license.     Packaging that
            with his statements at the police station that
            he had had too much to drink, along with the
            fact that he was found asleep at the wheel,
            and most importantly, the fact that there is
            a strong smell of alcohol on the defendant's
            breath lead me to believe that there is
            overwhelming evidence the defendant was under
            the influence of alcohol and that the State
            met its burden in proving that at trial.

     Judge Steele also rejected defendant's speedy trial argument.

Applying the four-factor balancing analysis from Barker v. Wingo,

                              11                             A-0489-13T1
supra, Judge Steele acknowledged that the case had "a circuitous

course over many months[.]"       She found that the delays were caused

by "a host of reasons," including, in part, delays in providing

discovery and failure of the court's audio recording system.

Although she did not attribute the delays to defendant "in any

way,"   Judge   Steele    found     the   length   of   delay   was   not

"unreasonable."

     Judge Steele also found a lack of evidence showing defendant

suffered undue prejudice attributable to the delay. Both defendant

and the State relied on State v. Cahill, 213 N.J. 253 (2013), in

which the Supreme Court acknowledged that in 1984:

          Chief Justice Wilentz issued a directive
          stating that offenses under N.J.S.A. 39:4-50
          (operation   of   an  automobile   under   the
          influence of alcohol or drugs) and N.J.S.A.
          39:4-50a (refusal to submit to a chemical
          test) "must be disposed of within [sixty] days
          of filing. "Administrative Directive #1-84
          (July 26, 1984) (Directive #1-84). Directive
          #1-84 explained that the sixty-day period was
          designed to reduce the backlog of those cases
          and to protect the public from the havoc
          wrought by intoxicated drivers.          Ibid.
          Directive #1-84 also emphasized the sixty-day
          period was a goal, did not replace "the
          traditional guidelines established through
          case law for dismissals based on lack of a
          speedy trial," and should not be invoked at
          the expense of other court efforts to achieve
          speedy disposition "of more serious disorderly
          persons complaints." Ibid.

          [Id. at 269.]


                              12                                 A-0489-13T1
     Citing Cahill, Judge Steele correctly noted that Directive

#1-84 established a "dispositional goal" and the Court in Cahill

made clear that it "has steadfastly declined to adopt a bright-

line try-or-dismiss rule."      Id. at 270.       In short, Judge Steele

was "not persuaded" that defendant's due process right to a speedy

trial was violated.

     Against   this   record,   defendant   now   raises   the   following

arguments.

          POINT I

          THE COURT BELOW ERRED IN BALANCING THE SPEEDY
          TRIAL FACTORS AND THE CHARGES AGAINST FRANKLIN
          MARINHO SHOULD HAVE BEEN DISMISSED BECAUSE HIS
          CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL WAS
          VIOLATED.

          POINT II

          THE COURT BELOW ERRED IN FINDING FRANKLIN
          MARINHO GUILTY OF DWI BEYOND A REASONABLE
          DOUBT BY DISREGARDING THE UNREBUTTED DEFENSE
          EXPERT TESTIMONY AND THE FACT THAT FRANKLIN
          MARINHO'S UNCONSCIOUS STATE AND DETERIORATED
          CONDITION WAS MORE CONSISTENT WITH CARBON
          MONOXIDE POISONING THAN WITH BEING UNDER THE
          INFLUENCE OF ALCOHOL.

          POINT III

          FRANKLIN MARINHO'S DWI CONVICTION SHOULD BE
          OVERTURNED BECAUSE THE LAW DIVISION JUDGE
          ERRED IN CONSIDERING AN IMPROPERLY ADMITTED
          ALLEGED STATEMENT AGAINST INTEREST BY MR.
          MARINHO THAT WAS NOT DISCLOSED TO THE DEFENSE
          PRIOR TO TRIAL AND WHICH MR. MARINHO WAS
          PREVENTED FROM REBUTTING THROUGH HIS EXPERT
          WITNESS.

                                13                                 A-0489-13T1
     N.J.S.A.      39:4-50(a)      prohibits   the      operation    of   a     motor

vehicle under the influence of intoxicating liquor.                    The phrase

"under the influence" generally means a substantial deterioration

or diminution of the mental faculties or physical capabilities of

a person.    State v. Tamburro, 68 N.J. 414, 420 (1975).                  In cases

involving    intoxicating      liquor,    "under     the    influence"    means       a

condition that affects a motorist's judgment or control "as to

make it improper for him to drive on the highway." Johnson, supra,

42 N.J. at 165.       After carefully reviewing the record developed

in this case, we affirm substantially for the reasons expressed

by Judge Steele in her oral opinion delivered from the bench on

February 2, 2016.           Judge Steele's factual findings are well-

supported by the competent evidence in the record. State v. Cryan,

363 N.J. Super. 442, 454-55 (App. Div. 2003).

     We nevertheless briefly address defendant's speedy trial

argument.    In Cahill, the Court noted that "prejudice is assessed

in the context of the interests the right [to a speedy trial] is

designed    to    protect.      Those    interests      include    prevention        of

oppressive incarceration, minimization of anxiety attributable to

unresolved       charges,    and    limitation     of      the    possibility        of

impairment of the defense."              Cahill, supra, 213 N.J. at 266

(citations omitted).



                                    14                                        A-0489-13T1
     Here, counting from the date of defendant's arrest, 312 days

passed before the municipal court judge provided his reasons for

finding defendant guilty.      As is the case in the overwhelming

number of DWI cases, defendant was released immediately after the

police cataloged his arrest.       However, unlike most cases in which

a defendant is convicted of DWI for a third time, defendant has

retained his driving privileges, has not served a single day of

his 180-day sentence, and has not paid any of the mandatory fines

or penalties imposed by the court. Given the overwhelming evidence

of intoxication that Judge Steele correctly found in support of

defendant's   conviction,   any    delay   in   bringing   this   case    to

conclusion has inured to defendant's benefit.

     Affirmed.




                              15                                   A-0489-13T1
