STATE OF NEW JERSEY VS. JEANNETTE M. BRADBURY (17-22, OCEAN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5140-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEANNETTE M. BRADBURY,
Defendant-Appellant.
___________________________
Argued September 22, 2021 – Decided October 1, 2021
Before Judges Mayer and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Municipal Appeal No. 17-22.
Matthew W. Reisig argued the cause for appellant
(Reisig Criminal Defense & DWI Law, LLC, attorneys;
Matthew W. Reisig, on the brief).
Cheryl L. Hammel argued the cause for respondent
(Bradley D. Billhimer, Ocean County Prosecutor,
attorney; Samuel Marzarella, Chief Appellate Attorney,
of counsel; Cheryl L. Hammel, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant Jeannette M. Bradbury appeals from a June 14, 2019 Law
Division order denying a petition for post-conviction relief (PCR) based on her
conviction for driving while intoxicated (DWI) after a de novo review of the
record from the municipal court proceeding in accordance with Rule 3:23-8. We
affirm.
We recite the facts relevant to defendant's PCR petition. During the
municipal court trial, the arresting officer, Sergeant James F. Sharkey, Jr.,
testified. According to Sharkey, on October 20, 2011, he stopped defendant's
car after observing her driving erratically. When Sharkey asked for defendant's
driving credentials, he detected an odor of alcohol. Defendant admitted she had
one drink prior to getting into her car. The sergeant then asked defendant to
perform several field sobriety tests, including the horizontal gaze nystagmus
test, walk-and-turn test, and one-legged stand test. According to Sharkey,
defendant performed poorly on all three tests. Based on his observations and
defendant's inability to successfully complete the sobriety tests, the sergeant
arrested defendant for DWI.
After being taken to the police station and given her Miranda rights,
defendant volunteered she consumed five drinks prior to driving. She agreed to
submit to an Alcotest at the police station.
A-5140-18
2
Prior to the municipal court trial, counsel agreed the results of the Alcotest
would not be scientifically reliable and, therefore, trial evidence would be based
on the psychophysical tests only and Sergeant Sharkey's testimony.
Defendant testified before the municipal court judge. She claimed the
sergeant's testimony was flawed and the events were not as he testified.
However, defendant admitted telling Sergeant Sharkey she consumed a gin and
tonic prior to driving and knew the officer was following her car. She testified
to fumbling for her inhaler at the time, causing it to appear she was driving
erratically.
The municipal court judge found Sergeant Sharkey's testimony credible
because the sergeant had conducted more than 200 drunk driving arrests and had
significant training and experience identifying individuals who exhibited signs
of driving under the influence. On the other hand, the municipal court judge did
not find defendant's version of the events credible.
Based on Sergeant Sharkey's testimony, the municipal judge found
defendant guilty of DWI, her second such conviction. She was sentenced to two
years loss of driving privileges, two years ignition interlock, thirty days
community services, and related monetary penalties and fines. The municipal
judge also sentenced defendant to jail time.
A-5140-18
3
On January 3, 2017, almost five years after her second DWI conviction,
defendant filed a PCR petition before the municipal court judge. 1 She
subsequently filed an amended PCR petition on June 28, 2017. In support of
her petition, defendant filed an affidavit expressing her belief that "an expert
witness at the time of trial would have resulted in an acquittal of her DWI." She
claimed to have paid for an expert but said the expert did not testify during the
municipal court proceeding. In addition, she contended no one told her the
public defender could apply for funding in municipal court to pay for an expert
on her behalf.
On July 26, 2017, the municipal court judge denied the PCR petition. He
found the public defender could have applied for money to retain an expert and
the municipality would have been obligated to pay for the expert. However, the
municipal court judge based his decision on the observations of Sergeant
Sharkey and the judge's evaluation of the credibility of the witnesses at the time
of trial. The municipal court judge concluded there was nothing "an expert
witness could have [ ] supplied in a trial that would have changed the [c]ourt's
determination as to the observations that were made by the officer and that the
[c]ourt relied upon . . . in convicting [defendant] of driving while intoxicated."
1
She did not file a direct appeal challenging the DWI conviction.
A-5140-18
4
Thus, he determined the availability of publicly available funds for defendant to
retain an expert was irrelevant and "there [was] no demonstration that there was
any prejudice to [defendant] whatsoever, because the [c]ourt's determination
was made based on the testimony supplied."
Defendant filed a municipal appeal from the denial of her PCR petition.
She then moved to change venue from Ocean County. In seeking a change in
venue, defendant asserted there was a conflict of interest involving the Ocean
County Prosecutor's office (OCPO) because one of her assigned public
defenders was currently employed by the OCPO and her other assigned public
defender was employed as a domestic violence hearing officer for the Ocean
County Superior Court.
The Law Division judge denied the request for a change of venue. The
judge found no conflict of interest because defendant's original public defender
"could effectively be screened from participation in [d]efendant's PCR" and the
current employment of defendant's second public defender "would have no
bearing on the Ocean County Prosecutor's Office objective responsibility of
handling this matter."
A different Law Division judge was assigned to handle defendant's
municipal appeal from the denial of her PCR petition. He conducted a trial de
A-5140-18
5
novo on May 29, 2019. In a six-page written decision, the Law Division judge
found defendant met the first prong in support of her ineffective counsel claim.
He agreed "the public defenders should have made a request to the municipal
court for funds to allow [d]efendant to retain an expert to render a written
opinion and to testify at trial." However, the Law Division judge found
defendant failed to satisfy the second prong in support of her ineffective
assistance of counsel claim. In denying defendant's PCR petition, the Law
Division judge wrote,
[T]he "but for" prong cannot be met by [d]efendant.
Defendant's claim rests on demonstrating that had
funding for an expert witness been obtained and that
expert testified at trial, the outcome would have
resulted in an acquittal, not a conviction. The facts of
this case simply do not support that conclusion. This
case did not involve [a motor vehicle recording] and the
Alcotest results were stipulated [to be] unreliable at the
outset of trial. Defendant was convicted based solely
on the observations made by Sergeant James Sharkey
during the motor vehicle stop and the administration of
the field sobriety tests.
Regarding credibility, the Law Division judge found Sharkey's testimony
credible. However, he found "[d]efendant's testimony to be entirely incredible.
Defendant's testimony stretched credulity beyond the breaking point."
The Law Division judge also determined to acquit defendant "an expert
would have had to opine rebutting or undermining Sharkey's testimony in its
A-5140-18
6
entirety." Given Sergeant Sharkey's "extensive experience and training, his
credibility in this matter, [d]efendant's unsatisfactory performance regarding the
[field sobriety tests] and [d]efendant's entirely incredible testimony, the [c]ourt
finds no expert would have been able to render an opinion to secure an
acquittal." Consequently, the judge concluded defendant's PCR petition failed
to satisfy the second prong of the State v. Fritz 2 test and defendant could not
prevail on her ineffective assistance of counsel claim.
On appeal, defendant raises the following arguments:
Point I
DEFENDANT'S PCR TRIAL DE NOVO SHOULD
HAVE BEEN GRANTED BY THE LAW DIVISION
BELOW DUE TO THE UNPRECEDENTED
COMBINED EFFECTS OF TWO DIFFERENT
MUNICIPAL PUBLIC DEFENDERS DIRECTY
CONTRAVENING THE EXPRESS DICTATES OF
THE MUNICIPAL PUBLIC DEFENDER'S ACT
PERTAINING TO EXPERT ANCILLARY
SERVICES IN CONJUNCTION WITH THE
MUNICIPAL COURT'S DIRECT KNOWLEDGE OF
SAME, AND ACQUIESENCE TO SAME, WHICH
CONSTITUTED AN EGREGIOUS VIOLATION OF
BOTH HER PROCEDURAL AND SUBSTANTIVE
DUE PROCESS RIGHTS AFFORDED UNDER THE
UNITED STATES CONSTITUTION AND NEW
JERSEY CONSTITUTION, RESPECTIVELY.
2
105 N.J. 42, 53-58 (1987).
A-5140-18
7
Point II
THE LAW DIVISION SHOULD HAVE GRANTED
DEFENDANT AN EVIDENTIARY HEARING
DURING THE PCR TRIAL DE NOVO SINCE BOTH
THE LETTER MEMORANDUM IN SUPPORT OF
HER PCR AND THE ORAL ARGUMENT
ADVANCED DURING THE TRIAL DE NOVO
ITSELF CLEARLY SATISFIED THE THREE
FACTORS ENUNCIATED IN STATE v. PORTER TO
REQUIRE SAME.
Point III
THE FACT THAT THE LAW DIVISION JUDGE
WHO PRESIDED OVER DEFENDANT'S PCR
TRIAL DE NOVO WORKED PREVIOUSLY IN THE
SAME VICINAGE ASSIGNED TO THE FAMILY
PART AND PRESIDED OVER CONTESTED FINAL
RESTRAINING ORDER (FRO) HEARINGS AT THE
SAME TIME THAT MUNICIPAL PROSECUTOR
[TWO] WORKED IN THE SAME FAMILY PART AS
A DOMESTIC VIOLENCE HEARING OFFICER
CONSTITUTED AN APPEARANCE OF A
CONFLICT OF INTEREST SUCH THAT
DEFENDANT'S NOTICE OF MOTION FOR
CHANGE OF VENUE REGARDING HER PCR
TRIAL DE NOVO SHOULD HAVE BEEN
GRANTED BELOW. THIS IS PARTICULARLY SO
SINCE THE UNDERLYING PCR TRIAL DE NOVO
WAS SPECIFICALLY ALLEGING THAT
MUNICIPAL PROSECUTOR [TWO] COMMITTED
INEFFECTIVE ASSISTANCE OF COUNSEL IN THE
VERY MATTER PENDING BEFORE THE LAW
DIVISION.
A-5140-18
8
"[A]ppellate review of a municipal appeal to the Law Division is limited
to 'the action of the Law Division and not that of the municipal court.'" State v.
Hannah, 448 N.J. Super. 78, 94 (App. Div. 2016) (quoting State v. Palma, 219
N.J. 584, 591-92 (2014)). "In reviewing a trial court's decision on a municipal
appeal, we determine whether sufficient credible evidence in the record supports
the Law Division's decision." State v. Monaco, 444 N.J. Super. 539, 549 (App.
Div. 2016). We must "determine whether the findings made could reasonably
have been reached on sufficient credible evidence present in the record." State
v. Johnson, 42 N.J. 146, 162 (1964). "When the reviewing court is satisfied that
the findings and result meet this criterion, its task is complete and it should not
disturb the result . . . ." Ibid.We first consider defendant's argument she established a prima case of
ineffective assistance of counsel and, therefore, was entitled to an evidentiary
hearing. We disagree.
Here, defendant was not entitled to an evidentiary hearing because she
was unable to establish a prima facie case of her ineffective assistance of counsel
by satisfying both prongs of the analysis under Strickland v. Washington, 466
U.S. 668 (1984) and Fritz. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
The two-part test governing an ineffective assistance of counsel claim required
A-5140-18
9
defendant to show the performance of her public defender was so deficient as to
violate her right to counsel. Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S.
at 687). The second prong of the Fritz test required defendant to demonstrate
"but for" the ineffective assistance of her public defender the outcome of the
trial would have been different. Ibid. (quoting Strickland, 466 U.S. at 694).
The Law Division judge found defendant met the first prong because her
public defender failed to apply to the municipal court for public funds to retain
an expert to testify at trial on defendant's behalf. However, to prevail on an
ineffective assistance of counsel claim, defendant must satisfy both prongs. The
Law Division judge determined "defendant made only a bald assertion that if a
defense expert witness testified, [d]efendant would have been acquitted" and
such a "bald assertion is not sufficient to meet the requirements of the 'but for'
prong of the Fritz analysis." See State v. Cummings, 321 N.J. Super. 154, 170
(App. Div. 1999).
Further, the Law Division judge concluded the "but for" prong could not
have been met even if defendant had an expert because her conviction was based
on Sergeant Sharkey's observations and the results of the field sobriety tests.
Defendant failed to proffer what evidence, if any, an expert would have
presented to overcome the credible testimony of Sergeant Sharkey regarding his
A-5140-18
10
observations of defendant and her poor performance on each of the administered
field sobriety tests.
Defendant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-(3)(e)(2).
Affirmed.
A-5140-18
11