NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0274-23
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION August 11, 2025 Plaintiff-Respondent, APPELLATE DIVISION
v.
VICTOR BAVEROV,
Defendant-Appellant. _______________________
Argued April 28, 2025 – Decided August 11, 2025
Before Judges Gummer, Berdote Byrne and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 23-004.
John Menzel argued the cause for appellant.
Alexandra E. Harrigan, Assistant Prosecutor, argued the cause for respondent (Raymond S. Santiago, Monmouth County Prosecutor, attorney; Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
JACOBS, J.S.C. (temporarily assigned) Defendant Victor Baverov appeals from an August 30, 2023 Law Division
order upholding a municipal court's January 26, 2023 finding of guilt for a fifth
driving-while-intoxicated (DWI) offense, sentencing him to 180 days in jail, an
eight-year license forfeiture, and other mandatory fines and penalties. N.J.S.A .
39:4-50. Defendant claims ineffective assistance of counsel, arguing his trial
attorney refused to present a psychiatric defense based on "persecutory
paranoia" and amnesia unrelated to alcohol use. He also challenges the
constitutionality of a bench trial, claiming he was entitled to a jury trial given
the custodial sentence imposed.
We conclude neither of defendant's contentions has merit and affirm the
Law Division's order.
I.
Shortly before 11:00 p.m. on November 19, 2021, a New Jersey State
Trooper was dispatched to a motor-vehicle accident on a rural roadway in Upper
Freehold. The trooper encountered defendant standing beside his vehicle, which
had veered off the road and struck a tree. The trooper saw that defendant
exhibited signs of alcohol impairment. Specifically, the trooper observed
defendant's eyes were bloodshot and watery, his speech was slurred, and there
2 A-0274-23 was a strong odor of alcohol emanating from his breath. When questioned,
defendant admitted consuming "five or six beers" that evening at a nearby bar.
The trooper administered a battery of field sobriety tests, several of which
defendant failed. Defendant was arrested and transported to the police station.
After being advised of his Miranda1 rights, defendant again admitted to
consuming alcohol earlier that night and consented to provide Alcotest breath
samples.
Defendant was charged with DWI, N.J.S.A. 39:4-50; reckless driving,
N.J.S.A. 39:4-96; and failure to maintain lane, N.J.S.A. 39:4-88(b). Before trial,
defendant expressed to his attorney that he wished to assert a psychiatric defense
based on persecutory paranoia and amnesia. He contended he had suffered from
a mental abnormality that caused episodes of memory loss, independent of
alcohol consumption. Defendant claimed he could not recall the accident and
had no memory of consuming alcohol on the night in question. Defendant did
not retain an expert to advance this defense.
During a trial held on November 17, 2022, the State called as a witness
the trooper who had conducted the sobriety tests and effectuated arrest. After
the State rested, the following colloquy ensued:
1 Miranda v. Arizona, 384 U.S. 436 (1966).
3 A-0274-23 DEFENSE COUNSEL: Judge, we're not going to put a case on, but I do want to – and Your Honor may want to hear from the defendant. I just want to build a record on a legal issue in case there's an appeal out of this.
THE COURT: Understood.
DEFENSE COUNSEL: And I'm going to have my client testify[,] not substantively. Your Honor doesn't have to put him under oath because . . . he wants to pursue a line of defense which [by] my understanding of the law is improper and inadmissible. I'm certain the prosecutor would object, and I'm a hundred percent positive Your Honor would sustain the objection. The case I'm referring to [is] a Law Division [case], but it's still good law[,] called State v. Inglis I-N-G-L-I-S. It's reported at 304 N.J. [Super.] 207 [(Law Div. 1997)]. It's a 1997 Law Division case, and it came out with a tranche of cases from that era dealing with what the Appellate Division, Supreme Court call – . . . they're just defenses that are just subject to being made up. Okay. I'll think of what the word they used to describe it.[2] But the bottom line is that one of the defenses that came up, and this was in the Inglis case, was the defense of insanity . . . . And the Law Division said, listen, this is not an appropriate defense in a drunk driving case. First of all, you're dealing with a strict liability offense. The defendant's state of mind is irrelevant. That's Number 1. And Number 2, it's a type of defense that lends itself to fraud and, you know, just made-up evidence, and there's really no way for the State to rebut those things. So, this case stands for the proposition
2 We surmise the word counsel likely attempted to recall was "pretextual." For example, Justice Garibaldi wrote, "In our DWI decisions we attempt to eliminate every possibility of pretextual defenses. We have done so not only because of any doubts about the veracity of the factual defense offered, but also because of the potential for pretext." State v. Fogarty, 128 N.J. 59, 68 (1992).
4 A-0274-23 that if you're going to raise a psychiatric defense in a drunk driving case, that evidence is inadmissible and should not be heard by the court. It's not relevant to the case in any way, shape or form. Now, as an attorney and the relationship between attorney and client is pretty specific in the sense that at trial defendant gets to decide three things. If you want to plead guilty or you want to plead not guilty, that's Number 1. Number 2, in the Superior Court do you want to have a jury trial or not a jury trial? And, Number 3, do you want to testify or not testify? Okay. Apart from that, every other decision in the case gets made by the attorney. Everything that's – all of those tactical and strategic decisions are out of the defendant’s hands, and I've made a determination based on my understanding of the law that Your Honor would not admit it, the prosecutor would object, it's improper testimony and just can’t be part of the case based upon the case law. If I thought it was going to help my client and be admissible, I'd take a different position, and my client disagrees with me on that, and he wanted Your Honor to know about that, not as substantive evidence, only just for the purpose of building a record, and I would ask Your Honor not to consider it as evidence. Is that okay with the court?
THE COURT: That's fine.
After hearing from defendant directly as to his lack of memory of events
on the night in question, the court reserved decision to consider the evidence.
On January 26, 2023, the municipal judge found defendant guilty of DWI and
dismissed the remaining charges. Noting this was defendant's fifth DWI
offense, the court imposed a sentence of 180 days in county jail, an eight-year
driver's license suspension, four year of mandatory ignition interlock, and other
5 A-0274-23 mandatory fines and penalties. Execution of the sentence was stayed pending
appeal.
Represented by new counsel, defendant appealed to the Law Division. On
August 14, 2023, Judge Michael A. Guadagno, J.A.D. (Ret.) heard argument and
conducted a de novo review, ultimately affirming the conviction and sentence.
The Law Division rejected defendant's ineffective assistance of counsel
argument, holding that even if the psychiatric defense had been presented, there
was no resulting prejudice because the defense was without merit as a matter of
law. Judge Guadagno emphasized that the insanity defense and other
affirmative defenses under the Criminal Code are not applicable to motor-
vehicle violations such as DWI. State v. Federico, 414 N.J. Super. 321, 326-27
(App. Div. 2010).
After the Law Division vacated the stay, defendant moved before this
court for a stay pending further appeal. Although this court denied the stay, we
remanded for resentencing before a different judge to permit defendant to make
a statement in mitigation. On December 7, 2023, the case was heard by the
presiding judge of the Criminal Part. The presiding judge denied defendant's
request for a stay of sentence and re-affirmed the sentence previously imposed.
On appeal, defendant advances two arguments for consideration:
6 A-0274-23 POINT I
BECAUSE DEFENSE COUNSEL NOT ONLY FAILED TO PRESENT, BUT ALSO UNDERMINED HIS CLIENT'S DEFENSE, THIS COURT SHOULD VACATE THE CONVICTION AND REMAND FOR A NEW TRIAL.
POINT II
GIVEN CHANGES IN DOUBLE JEOPARDY JURISPRUDENCE AND THE SEVERITY OF THE PENALTIES TO WHICH DEFENDANT IS EXPOSED, THIS COURT SHOULD REMAND THIS MATTER FOR A JURY TRIAL.
II.
On appeal from a municipal court to the Law Division, the standard of
review is de novo on the record. Pressler & Verniero, Current N.J. Court Rules,
cmt. 1.1 on R. 3:23-8 (2025). Because the Law Division judge is not in a
position to judge the credibility of witnesses, deference is due to the credibility
findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472
(1999). See R. 3:23-8(a) (governing de novo criminal trials). Our review is
limited to determining whether the Law Division's findings could reasonably
have been reached on sufficient credible evidence in the record. State v.
Robertson, 228 N.J. 138, 148 (2017). Like the Law Division, we lack the
"opportunity to hear and see the witnesses and to have the 'feel' of the case" that
7 A-0274-23 the municipal court has. Locurto, 157 N.J. at 471. We may not "weigh the
evidence, assess the credibility of witnesses, or make conclusions about the
evidence." State v. Barone, 147 N.J. 599, 615 (1997). We thus must defer to
the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383
(App. Div. 2000).
However, legal determinations are reviewed de novo. Robertson, 228 N.J.
at 148. Whether defendant was entitled to a jury trial is a question of law.
Whether he received ineffective assistance of counsel is also a question of law
in this instance, as we accept all that counsel said at face value, without making
credibility determinations.
III.
Ineffective Assistance of Counsel
We begin with defendant's claim that trial counsel provided
constitutionally ineffective assistance by failing to present an insanity or
psychiatric defense in connection with the DWI charge. His argument is
premised on the assertion that these conditions, particularly when manifested
independently of alcohol consumption, would have undermined the State's
ability to prove impairment under N.J.S.A. 39:4-50.
8 A-0274-23 To assess this claim, we apply the familiar two-prong test established
under Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 53-58 (1987). A defendant must
demonstrate both: (1) that counsel's performance fell below an objective
standard of reasonableness; and (2) that, but for counsel's errors, there is a
reasonable probability the result of the proceeding would have been different.
Strickland, 466 U.S. at 687, 694; State v. Echols, 199 N.J. 344, 359 (2009).
Here, the first prong is dispositive. Trial counsel's decision not to advance
an insanity defense was not only reasonable but compelled by prevailing law.
DWI under N.J.S.A. 39:4-50 is a strict-liability offense to which affirmative
defenses based on mental states, including insanity, diminished capacity, or
intoxication, do not apply. See State v. Hammond, 118 N.J. 306, 307, 310
(1990); Federico, 414 N.J. Super. at 326.
The most thorough treatment of the purported defense raised here appears
in an opinion, State v. Inglis, 304 N.J. Super. 207 (Law Div. 1997), authored by
then Law Division Judge Jose Fuentes, P.J.A.D. (Ret.). There, the court rejected
a DWI defendant's attempt to introduce psychiatric evidence of bipolar disorder
to negate culpability. Id. at 209-210. Judge Fuentes explained:
[T]he offense of driving while intoxicated precludes the common-law defense of insanity for two reasons. The
9 A-0274-23 first is that the statute creating the offense embodies a strong legislative policy of precluding defenses that have a high potential for being pretextual. The second is that driving while intoxicated is an absolute liability offense, a fact that militates against permitting a defense that focuses on a defendant's lack of mental culpability.
....
[T]he common-law insanity defense is unavailable to defendants charged with driving under the influence.
[Id. at 211, 214.]
Judge Fuentes noted it is irrelevant for defendants to claim that driving
under the influence meets the M'Naghten test for common-law insanity because
that test focuses on the culpability associated with the defendant's state of mind.
Id. at 213. He wrote, because "[DWI] is a strict liability offense, requiring no
culpable mental state," it is therefore irrelevant whether the defendant "knew or
appreciated that driving under the influence was wrong." Ibid. (citing
Hammond, 118 N.J. at 314).
We endorse the holding and reasoning of Inglis, adopting it as precedent.
In the same vein, our holding aligns with Federico, where defendant claimed
involuntary exposure to intoxicating chemical compounds at his workplace
resulted in an "inability to recollect short memory and lack of orientation." 414
N.J. Super. at 326. The defendant "could therefore neither remember nor h ave
10 A-0274-23 'the cognitive capacity to make a knowing and reasoned response to the
questions that he was asked'" by the police officer who found him sleeping in
his car. Ibid. Here, as there, we emphasize that DWI is an absolute liability
offence. To allow a defense based on involuntary ingestion of intoxicants, like
an altered mental state due to psychiatric condition, "would contravene the 'clear
legislative intent and a strong legislative policy to discourage long trials
complicated by pretextual defenses.'" Id. at 327 (quoting Hammond, 118 N.J.
at 317).
Counsel's decision to cite Inglis and decline pursuit of a legally untenable
defense not only reflected professional competence but fulfilled an ethical
obligation to refrain from advancing a frivolous defense and to disclose to the
tribunal legal authority known to be directly adverse to the position of the client.
RPC 3.1; RPC 3.3(a)(3). 3 Counsel's conduct in this case was tactically sound
and ethically commendable.
3 RPC 3.1 reads, in pertinent part: "Meritorious Claims and Contentions. A lawyer shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law, or the establishment of new law." (Emphasis added).
11 A-0274-23 Because the first prong of the Strickland/Fritz test has not been met, we
do not reach the second prong. Nonetheless, we note the evidence of
intoxication was substantial. Defendant admitted to drinking five or six beers,
failed field sobriety tests, exhibited classic signs of impairment, and drove h is
vehicle into a tree. Had counsel presented psychiatric testimony, there remains
no realistic likelihood the result of the proceeding would have been different.
Accordingly, the claim of ineffective assistance of counsel is without merit.
Right to a Jury Trial
Defendant contends that he was constitutionally entitled to a trial by jury
in light of the 180-day jail sentence imposed combined with the gravity of the
other penalties imposed, including an eight-year license suspension and four-
year ignition interlock device. He argues his offense must be deemed "serious"
rather than "petty," thereby triggering the jury trial guarantee under both the
Sixth Amendment to the United States Constitution and Article I, Paragraph 10
of the New Jersey Constitution.
RPC 3.3(a)(3) reads, in pertinent part: "Candor Toward the Tribunal. A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client . . . ."
12 A-0274-23 Both federal and state precedent foreclose defendant's claim.
The United States Supreme Court has held there is no Sixth Amendment
right to jury trial for "petty offenses," defined as those for which the maximum
authorized term for imprisonment does not exceed six months. Blanton v. N.
Las Vegas, 489 U.S. 538, 543-44 (1989). In Blanton, the Court held that a first-
offense DWI conviction under Nevada law, punishable by a maximum sentence
of six months in jail, was a petty offense that did not constitutionally require a
jury trial. Ibid.
New Jersey courts have uniformly recognized the distinction between
petty and more serious offenses, categorized as disorderly persons and indictable
offenses, the former allowing for a maximum sentence of six months under our
Criminal Code. N.J.S.A. 2C:1-4. In State v. Hamm, 121 N.J. 109, 112 (1990),
our Court held that a third-offense DWI conviction with a 180-day mandatory
jail sentence did not entitle the defendant to a jury trial. The Hamm Court noted
that "the DWI offense is in no sense to be regarded as a criminal offense under
the laws of the State of New Jersey." Id. at 118. As such, the Court observed
that "the culpability standards with respect to state of mind that ordinarily attend
criminal offenses do not attend DWI offenses." Ibid.
13 A-0274-23 Likewise, in State v. Denselbeck, 225 N.J. 103, 106 (2016), the Court
reiterated that the denial of a jury trial in a third-offense DWI case did not offend
federal or state constitutional guarantees. So long as the period of incarceration
does not exceed six months for any single offense, the right to trial by jury does
not attach. Ibid.; see also Lewis v. United States, 518 U.S. 322, 324-28 (1996)
(defendant charged with multiple petty offenses with potential aggregate
penalties exceeding six months is not entitled to a jury trial unless a single
offense carries a sentence exceeding six months).
Applying these principles here, defendant was convicted of a single DWI
offense, subject to a 180-day custodial sentence. Although the court imposed
ancillary penalties, those consequences, though significant, do not establish the
offense as "serious" under controlling jurisprudence.
Defendant's attempt to aggregate multiple Title 39 penalties into a single,
compound offense is unavailing. Likewise, his suggestion that the possibility
of additional jail time on dismissed charges triggers a right to trial by jury is
unsupported by law. Because the remaining charges here were dismissed, and
because the sentence imposed did not exceed the 180-day limit, the
constitutional threshold for a jury trial was not met.
14 A-0274-23 Even if the remaining charges had not been dismissed, New Jersey law
nonetheless permits imposition of concurrent sentences for multiple petty
offenses without mandating a corresponding right to a jury trial. See State v.
Linnehan, 197 N.J. Super. 41, 43 (App. Div. 1984) (citing State v. Owens, 54
N.J. 153, 163 (1969)). Accordingly, we conclude defendant was not entitled to
a jury trial under either federal or state law.
In sum, we affirm the August 30, 2023 order of the Law Division
upholding defendant's municipal court conviction for DWI and the sentence
imposed.
Affirmed.
15 A-0274-23