Opinion
DOCKET NO. A-4829-13T2
04-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KIMBERLY BROMBERG, Defendant-Appellant.
Judson L. Hand argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Hand and Alan L. Zegas, on the briefs). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Currier. On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 6074. Judson L. Hand argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Hand and Alan L. Zegas, on the briefs). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the Law Division's order entered after a de novo trial on the record. The Law Division judge found her guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, driving with a suspended license, N.J.S.A. 39:3-40, and refusal to submit to a breath test, N.J.S.A. 39:4-50.2. After reviewing the record in light of the contentions advanced on appeal and the applicable law, we affirm.
Defendant was found not guilty of failing to comply with a court order to install an interlocking ignition device, N.J.S.A. 39:4-50.19.
Springfield Police Officer Joseph Leniart testified that he was dispatched to investigate a report of a verbal dispute. When he arrived at the location, Leniart observed a car stopped in the center of the roadway, parked over the double yellow line with the front tires facing in towards the center of the road. The headlights were on; the engine was not running and the key was not in the ignition.
Leniart further testified that he spoke with defendant who was sitting in the driver's seat. She stated that after arguing with her fiancé, he took the keys and walked away. When the fiancé returned to the scene, he told Leniart that defendant had been driving the car.
Police Officer Eric Knudsen stated that when he arrived at the scene, he encountered defendant's fiancé, who stated he and defendant had been at a nearby bar. When they left, defendant drove the car to its present location where the fiancé told her she was in no shape to drive. They argued and he took the keys from the ignition. According to Knudsen and a third officer, defendant told them she had driven the car to its present location. Knudson described defendant's eyes as being bloodshot and her speech slurred. Another officer described a pungent smell of alcohol emanating from both defendant and the vehicle.
Defendant underwent several field sobriety tests. It was noted that she staggered and stumbled, almost falling, as she walked. She was unable to follow basic instructions, nor perform any of the tests successfully. Based upon the officers' observations, the odor of alcohol emanating from the vehicle, and defendant's poor efforts at performing the field sobriety tests, she was arrested and charged with DWI. At the police station, defendant refused to submit to a breath test, resulting in the additional summons.
After checking defendant's credentials, the officers learned that her license was suspended and she was charged with the violation of driving while suspended. --------
Defendant's fiancé testified defendant had been arguing with another patron in the bar, and he determined it was time to leave. He drove her car because she was inebriated. Within a block of the bar, he said defendant was "abusive" and getting violent with him, "punching me in the head," so he stopped the car in the middle of the road, took the keys and left. He stated he was clear to the officers, and the officers understood defendant had not been driving.
Two other patrons of the bar provided testimony that they saw defendant in the passenger seat of the vehicle when she and her fiancé left that night.
On appeal, defendant argues:
POINT I: THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT MS. BROMBERG WAS OPERATING A MOTOR VEHICLE ON THE EVENING IN QUESTION.
POINT II: BECAUSE OF THIS LACK OF EVIDENCE OF OPERATION, THE STATE HAS FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MS. BROMBERG WAS OPERATING A MOTOR VEHICLE WITH A SUSPENDED LICENSE.
POINT III: THE STATE ALSO LACKS EVIDENCE SUFFICIENT TO FIND, BEYOND A REASONABLE DOUBT, THAT IT HAS PROBABLE CAUSE TO REQUIRE MS. BROMBERG TO SUBMIT TO A BREATH TEST UNDER THE "REFUSAL STATUTE."
POINT IV: BECAUSE THE STATE FAILED TO MIRANDIZE MS. BROMBERG UNTIL AFTER SHE WAS BROUGHT TO THE POLICE STATION THIS COURT SHOULD SUPPRESS ANY STATEMENTS MADE BY HER TO THE POLICE AND DISMISS ALL THREE CHARGES AGAINST HER (Not raised below).
Our scope of review is limited to whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). The two-court rule provides that we "should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999) (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
Appellate courts give substantial deference to a trial judge's findings of fact. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). These findings should only be disturbed when there is no doubt that they are inconsistent with the relevant, credible evidence presented below, such that a manifest denial of justice would result from their preservation. Id. at 412. We owe no deference to the trial judge's legal conclusions. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Defendant does not contest that she consumed alcohol at the bar prior to these events; she argues, instead, that she was not operating the car at the time of the DWI arrest. A person is deemed to have been driving while intoxicated if that person "operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug." N.J.S.A. 39:4-50. Defendant presented witnesses at her trial who testified that she was not driving the car. As the State has the burden to prove beyond a reasonable doubt that defendant was driving while intoxicated, and in light of her refusal to submit to a breath test, the issue thus becomes what evidence led to the conclusion that defendant was intoxicated when driving her vehicle.
Intoxication may be proven by evidence of a defendant's physical condition. State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). "The statute does not require as a prerequisite to conviction that the accused be absolutely 'drunk' in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988) (citing State v. Emery, 27 N.J. 348, 355 (1958)), certif. denied, 114 N.J. 473 (1989). In State v. Morris, 262 N.J. Super. 413, 416, 421 (App. Div. 1993), we upheld a DWI conviction, finding that slurred speech, disheveled appearance, bloodshot eyes, alcoholic odor on breath and abrasive demeanor were evidence of the defendant's intoxication.
The Law Division relied on the officers' testimony, which included that defendant's eyes were bloodshot, her speech was slurred, an odor of alcohol emanated from her and from inside the car, she stumbled when walking away from the car and was unable to successfully pass any of the field sobriety tests. The judge found "[t]hese facts constitute proof, beyond a reasonable doubt, that Defendant was intoxicated on the date and time in question."
We turn then to the operation element. A defendant's statements to a police officer at the scene of a DWI arrest can be introduced to show operation. See State v. Macuk, 57 N.J. 1, 7 (1970) (operation was established when defendant admitted to officers that he had been the driver of the vehicle). Proof of actual operation is not required. State v. Sweeney, 40 N.J. 359, 360 (1963).
The Law Division judge opined that circumstantial evidence existed to prove that defendant operated the vehicle beyond a reasonable doubt:
This Court finds credible Officer Knudsen's testimony that Defendant told him that she drove from [the bar] parking lot to Center Street. Furthermore, this Court accepts as credible the testimony, elicited from Officer Leniart on cross examination, regarding [the fiancé's] statement that Defendant had driven the car from the bar. . . . [T]he municipal court . . . implicitly found Officer Leniart's testimony credible, and this Court affords that determination due regard. . . . [T]his Court finds credible the officers' testimony that both Defendant and [her fiancé] told the officers that Defendant had operated the car that night.
. . . .
This Court fully agrees . . . that, if [defendant's fiancé] really had been driving the car before the police arrived, it would have made no sense for [him] to have abandoned the vehicle, with Defendant still inside, in the middle of the street. . . . Had [the fiancé] actually been driving, it seems far more reasonable for him to have pulled over to the curb or parked in a nearby lot.We discern no basis to disturb the trial judge's decision. She thoroughly reviewed the facts and we are satisfied there is sufficient credible evidence in the record to substantiate her findings that defendant was operating her car while intoxicated.
. . . .
[T]he element of operation can be proven irrespective as to whether the police saw Defendant operating the car, as circumstantial evidence and an admission as to operation suffice to satisfy that requirement . . . .
. . . .
In light of the case law, findings of fact, and credibility determinations, this Court holds that the State established, beyond a reasonable doubt, that Defendant was intoxicated and had "operated" the [car].
As a result of that conclusion, it is not necessary for us to reach defendant's additional arguments and we find that all remaining issues raised by her are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION