STATE OF NEW JERSEY v. CORRINE EVANOCHKO

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. CORRINE EVANOCHKO, Defendant–Appellant.

DOCKET NO. A–5994–11T3

Decided: March 7, 2014

Before Judges Kennedy and Guadagno. Law Office of Matthew W. Reisig & Associates, LLC, attorneys for appellant (Luke C. Kurzawa, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel;  Matthew P. Tallia, of counsel and on the brief).

Defendant Corrine Evanochko appeals from the June 21, 2012 Law Division order, affirming her conviction for refusal to submit to a breath test but vacating certain portions of her sentence and remanding the matter to municipal court for resentencing.   Defendant claims that the municipal judge erred in finding probable cause for her arrest without hearing the testimony of a defense witness.   She also claims that the imposition of an illegal sentence, since corrected by the Law Division, renders her guilty plea void ab initio.   We reject both of these arguments and affirm.

I.

At approximately 10:30 p.m. on April 9, 2011, Plainsboro Township Patrolman Jason Mandato responded to a report of a highly intoxicated person causing a disturbance at the Westin Hotel.   Upon arrival, Mandato spoke with Bolivar Hernandez, a security manager at the Westin, who identified Thomas Cooke as causing the disturbance.   Mandato observed Cooke to be “extremely intoxicated, argumentative ․ unstable on his feet [and] exhibiting ․ overt signs and symptoms of extreme intoxication.”   Mandato also observed defendant at the scene and learned that she was married to Cooke.   When defendant offered to drive her husband home, Mandato permitted her to leave with him.   Defendant did not appear to be intoxicated to Mandato.

At approximately 11:39 that evening, East Brunswick Patrolman Frank Sutter was pulling out of a parking lot when he observed defendant's vehicle speeding.   He made a K-turn, pulled behind her, and stopped her vehicle.   When he approached the vehicle, Sutter smelled an odor of alcohol coming from the vehicle and noticed that defendant was crying.   Sutter observed defendant's eyes were bloodshot and watery, her eyelids “droopy,” and she seemed intoxicated.   When Sutter asked defendant for her license, registration, and insurance card, she handed him a credit card, which he returned to her.

Sutter asked defendant if she had consumed any alcohol and she replied that she had one glass of wine.   Sutter wanted to make sure the odor of alcohol he smelled was coming from defendant and not Cooke, so he asked her to get out of the car.   He confirmed that the odor of alcohol was coming from defendant's breath as well.

Sutter conducted field sobriety tests including the HGN (horizontal gaze nystagmus) test, the walk-and-turn test, and the one-leg-stand test.   Defendant was not able to maintain her balance in the walk-and-turn test and scored five out of a possible eight.   Defendant began the one-leg-stand test before Sutter finished instructing her, and scored two out of a possible four.   As a result of his observations and defendant's performance on the tests, Sutter concluded that she was intoxicated.   He placed her under arrest and advised her of her Miranda 1 rights.

Sutter transported defendant to the police station and requested that she provide a breath sample for the Alcotest.   He gave her a standardized form advising her that the Miranda rights did not give her the right to refuse to provide breath samples.   Defendant, who is an attorney, responded that she had questions that she wanted Sutter to “clarify.”   Sutter then completed an Alcohol Influence Report, indicating that defendant had refused to provide breath samples.

Defendant was charged with refusal to submit to a breath test, N.J.S.A. 39:4–50.2;  driving while intoxicated, N.J.S.A. 39:4–50;  careless driving, N.J.S.A. 39:4–97;  reckless driving, N.J.S.A. 39:4–96;  and failure to produce a registration, N.J.S.A. 39:3–29.

Trial began on August 18, 2011.   Defendant's counsel informed the court that he had subpoenaed Bolivar Hernandez to testify that day but Hernandez contacted the court administrator to report that he could not appear that day.   Counsel first requested that Hernandez be permitted to appear by phone but the court rejected that suggestion explaining, “I need to be able to look at a witness to determine if they're being truthful or credible or not.”   Counsel then sought a continuance to permit Hernandez to appear.   The court did not deny the request, but reserved decision until he could “see how [the trial] goes.”

Defendant called three witnesses, including Officer Mandato, and testified on her own behalf.   The State called Officer Sutter.   At the conclusion of trial, defendant rested without revisiting the issue of Hernandez's testimony.   Defendant asked the court to reserve decision and allow him to submit a brief on the issue of defendant's refusal.   The prosecutor questioned whether defendant would be raising the issue of probable cause for the stop or the arrest.   Counsel replied that he was not, but if his brief contained arguments regarding probable cause, to “just consider it excised.”   The court then decided to address the issue and determined that there was probable cause for the stop and the arrest.

The parties next appeared on December 13, 2011.   The municipal court was prepared to render the remainder of its decision, but defendant informed the court that she wished to plead guilty to refusal to submit to a breath test.   Defendant had a prior conviction for driving while intoxicated and the court informed her, incorrectly, that, as a result, she faced a sentence of incarceration as well as certain penalties.   After a brief allocution, the court suspended defendant's driver's license for two years;  imposed a fine of $506 plus $33 in court costs;  imposed a $50 Violent Crimes Compensation Board (VCCB) assessment, a $200 DWI surcharge, and a $75 Safe Neighborhoods Services Fund (SNSF) assessment;  required defendant to serve forty-eight hours in the Intoxicated Drivers Resource Center in lieu of jail;  and imposed thirty days community service.   Pursuant to a plea agreement, the judge dismissed the remaining charges with the exception of the driving while intoxicated charge.   Based on the fact that defendant was wearing a long dress when she performed the field sobriety tests, the judge found her not guilty of that charge.

Defendant appealed, and on June 21, 2012, the Law Division entered an order finding that there was no error in the municipal court's failure to hear testimony from Bolivar Hernandez.   The court vacated the community service, the VCCB penalty and the SNSF assessment, reduced the DWI surcharge from $200 to $100, and remanded the matter to the municipal court for re-sentencing within forty-five days.

On appeal, defendant raises the following points:

point i

the municipal court erred by making a finding of sufficient probable cause for the arrest of the defendant for suspected violation of the dwi statute without hearing the testimony of defense witness bolivar hernandez.

point ii

the municipal court imposed an illegal sentence, and therefore, defendant's guilty plea to refusal is void ab initio.

II.

When a defendant appeals from a conviction of violating a traffic regulation following a trial de novo, the scope of our review is both narrow and deferential.  State v. Stas, 212 N.J. 37, 48–49 (2012).   Our function as a reviewing court is to determine whether the findings of the Law Division “could reasonably have been reached on sufficient credible evidence present in the record.”  State v. Johnson, 42 N.J. 146, 162 (1964).   We “defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.”  State v. Locurto, 157 N.J. 463, 474 (1999).

After Officer Sutter observed defendant's vehicle speeding, he was justified in stopping her.  Id. at 470.   The alcohol smell on defendant's breath combined with her watery and bloodshot eyes and slurred speech prompted Sutter to administer field sobriety tests, which she failed.   Sutter clearly had probable cause to place defendant under arrest.   Defendant's subsequent acquittal on the charge of driving while intoxicated does not impugn the propriety of the initial stop.  State v. Murphy, 238 N.J.Super. 546, 553–54 (App.Div.1990) (quoting State v. Nugent, 125 N.J.Super. 528, 534 (App.Div.1973)).

Defendant's argument that the court's decision to rule on the issue of probable cause without hearing the testimony of Hernandez is also without merit.   The court did not refuse to hear the testimony of Hernandez, it merely reserved decision on defendant's request for a continuance of the trial so he could appear.   In fact, a continuance was granted at defendant's request for the purpose of briefing the refusal issue.   After his initial request, counsel never raised the Hernandez issue again.   Moreover, we agree with the Law Division that any testimony by Hernandez, a lay witness, as to defendant's appearance at the Westin, is not only irrelevant to the issue of Sutter's probable cause but was cumulative in light of Mandato's testimony that defendant did not appear intoxicated when he observed her at the same time Hernandez did.

Defendant next argues that the illegal sentence imposed by the municipal judge renders defendant's guilty plea void ab initio.   Defendant cites no authority for this proposition and we find her arguments lack sufficient merit to warrant discussion in our opinion beyond the following brief comments.   R. 2:11–3(e)(2).

Rule 3:21–10(b)(5) provides that where the sentence imposed is not authorized by law, the sentence may be corrected at any time.   See also Bozza v. United States, 330 U.S. 160, 166 S.Ct. 645, 648–49, 91 L. Ed. 818, 821–22 (1947);  State v. Kirk, 243 N.J.Super. 636, 641–45 (App.Div.1990);  State v. Sheppard, 125 N.J.Super. 332, 336 (App.Div.), certif. denied, 64 N.J. 318 (1973);  State v. Baker, 270 N.J.Super. 55, 72 (App.Div.), aff'd o.b., 138 N.J. 89 (1994).

The State concedes and the Law Division determined that portions of the sentence imposed by the municipal judge were not authorized by law.   Those sanctions were either vacated entirely or reduced to conform to the penalties permitted by the statute of conviction.   Defendant does not claim that any portion of the corrected sentence is illegal, nor does she allege any prejudice resulted from the misstatements by the municipal judge.   Moreover, the Law Division stayed her two-year suspension and she has enjoyed her driving privileges during the pendency of this appeal.   We are satisfied that defendant fully understood the nature of the charge and entered her guilty plea to that charge voluntarily.   She admitted to the essential elements of the offense and the corrected sentence she received is less punitive than the sentence imposed by the municipal judge.   Any excess fines and assessments were refunded to defendant.

In the order of June 21, 2012, the Law Division stayed the suspension of defendant's driver's license “for 45 days pending appeal.”   Notice of appeal was filed on August 6, 2012, and, by its terms, the stay granted by the Law Division expired at that time.   There has been no request before us for a further stay, and no evidence in the record that defendant surrendered her license at the expiration of the stay.   Defendant shall surrender her driver's license immediately upon the filing of this opinion.

Affirmed.

FOOTNOTES

1.  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

PER CURIAM

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