Opinion
DOCKET NO. A-5366-13T2
07-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CYNTHIA HWANG, Defendant-Appellant.
Cynthia Hwang, appellant, argued the cause pro se. John R. Ascione, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Ascione, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Lihotz. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 5-14. Cynthia Hwang, appellant, argued the cause pro se. John R. Ascione, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Ascione, on the brief). PER CURIAM
Defendant Cynthia Hwang appeals from a July 2, 2014 Law Division order entered following a trial de novo denying her request to vacate a conviction entered in municipal court for driving while intoxicated (DWI), N.J.S.A. 39:4-50, refusal to submit a breath sample, N.J.S.A. 39:4-50.4(a); failure to keep right, N.J.S.A. 39:4-82, and resisting arrest, N.J.S.A. 2C:29-2(a)(1). We affirm substantially for the reasons set forth in the twenty-six page written opinion of Judge Julie M. Marino.
The following facts are taken from the record. During the early morning of October 18, 2012, Hillsborough Township Police Officer Robert Fariello conducted a traffic stop after observing defendant's vehicle swerve, several times, across the double-yellow median lane of Amwell Road. Approaching defendant's vehicle, Officer Fariello detected a "strong odor" of alcohol emanating from her breath and noted her eyes were bloodshot and watery. When asked by the patrolman whether she had been drinking, defendant responded yes, "but not much."
Officer Fariello requested defendant exit her vehicle to perform field sobriety tests. Defendant complied, and stated she "wanted an attorney." Defendant was instructed to: recite the alphabet, beginning at the letter "d" and stopping at the letter "y"; count backwards from forty-seven to twenty-three; balance on one leg; and complete the "walk and turn" test. Defendant failed each test. Specifically, she advanced past the advised stopping points on the verbal exams and was unable to maintain her balance. Defendant asserted she misunderstood the directions for the "walk and turn" test. Officer Fariello repeated the instructions with a demonstration. Defendant acknowledged she now understood, but wanted an attorney before she would continue. Officer Fariello arrested her for DWI. Defendant again requested an attorney.
As Officer Fariello attempted to handcuff defendant she "became physically and verbally resistant," pressing her left hand against the side of her body and refusing to release it. Officer Fariello instructed defendant to stop resisting and warned her if she did not comply, "he would put her to the ground." Failing to yield, Officer Fariello radioed for backup and moved defendant to a grassy area, where he placed her on her stomach. Defendant continued her obstinate behavior, requiring Officer Fariello to restrain her using two sets of interlocking handcuffs. Officer Fariello transported defendant to the Hillsboro Township Police Department (HTPD) for an Alcotest chemical breath test to ascertain her blood-alcohol content.
Widely used in New Jersey, "[an] Alcotest measures the amount of alcohol present in a person's breath as an indirect measure of the amount of alcohol present in the person's blood." State v. Carrero, 428 N.J. Super. 495, 505 (App. Div. 2012) (citing State v. Chun, 194 N.J. 54, 78, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008)).
At the HTPD, Officer Fariello issued Miranda warnings and read the New Jersey Motor Vehicle Standard Statement for Operators of a Motor Vehicle (standard statement), N.J.S.A. 39:4-50.2(e). He then prepared the Alcotest.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
During the initial twenty-minute pre-Alcotest observation period, see Chun, supra, 194 N.J. at 79, defendant belched. She was observed for a second twenty-minute period. See ibid. ("If the arrestee swallows anything or regurgitates . . . the operator is required to begin counting the twenty-minute period anew."). After time elapsed, defendant agreed to provide breath samples. However, on her first attempt she failed to provide enough air to register a reading. Officer Fariello informed defendant she would be charged with refusal if she did not provide an adequate air sample. He reread the standard statement's provision outlining the consequences of refusing, non-compliance, or failure to provide sufficient breath samples.
A second test was administered. This time, "[d]efendant merely puffed her cheeks with air and did not blow into the [Alcotest machine's] mouthpiece." Again warned of the consequences for submitting an inadequate breath sample, defendant responded by spitting out the mouthpiece. Officer Fariello charged defendant with DWI, refusal to submit a breath sample, resisting arrest, and other moving violations.
Defendant's trial was held in Bridgewater Township Municipal Court on June 18 and August 14, 2013. The State submitted testimony from Officer Fariello and admitted foundational documents from the Alcotest machine, including the Alcohol Influence Report, recording the duration of failed breath tests as approximately 15.4 and 2.4 seconds, respectively.
Testimony was also elicited from Sergeant Brian Besser, the Hillsboro Police shift commander, but was struck from the record by the municipal court judge as duplicative.
Defendant testified on her own behalf. She adamantly denied resisting and stated Officer Fariello responded angrily to her repeated requests for an attorney. Defendant maintained she was arrested "because the officer . . . wanted to teach [her] a lesson."
In a written opinion attached to defendant's judgment of conviction (JOC), the municipal court judge found Officer Fariello "utterly credible," and rejected defendant's version of events. Defendant was sentenced to an aggregate seven-month suspension of her driving privileges, the installation of an ignition interlock device for a subsequent six months, and twelve hours of participation in the Intoxicated Driver Program. Applicable fines and fees totaling approximately $1,6 00 were also imposed. Defendant appealed her conviction to the Law Division.
Judge Marino conducted a trial de novo. She denied defendant's motion to vacate her conviction and dismiss the charges, concluding the State provided sufficient evidence to prove each of the underlying offenses beyond a reasonable doubt. The judge detailed her factual findings, including her determination Officer Fariello's testimony was credible; particularly "his observations of [d]efendant's demeanor, physical appearance, the odor of alcohol on her breath, . . . her admission she consumed alcohol, and her refusal to continue with field sobriety tests."
Judge Marino rejected, as meritless, defendant's contention "she was arrested simply for asking for an attorney." The judge noted field sobriety tests are "non[-]testimonial in nature" and, therefore, not subject to the protections of Miranda. See State v. Green, 209 N.J. Super. 347, 352-53 (App. Div. 1986) ("[T]he privilege against self-incrimination is not necessarily implicated just because a suspect is compelled in some way to cooperate in developing evidence which may be used against him [or her]." (citation and internal quotation marks omitted)). Judge Marino found defendant guilty of the charges and imposed the penalties and fines as issued by the Municipal Court. This appeal ensued.
Defendant argues:
POINT I.
Evidence presented by the prosecutor was not enough to support the conviction.
POINT II.
Did Judge Kelleher and Judge Marino do their job properly?
POINT III.
Judge Kelleher and Judge Marino abused their discretion.
POINT IV.
Defendant should have been given a jury trial.
POINT V.
Jury trial must be afforded in all criminal prosecutions, whether "petty" or not?
We reject Points IV and V, raised for the first time on appeal, as legally untenable. Our Supreme Court has declined to recognize the right to a jury trial for convictions arising from a DWI offense. See State v. Hamm, 121 N.J. 109, 112 ( 1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991). Further, we conclude Point II lacks sufficient merit to warrant any discussion in our opinion. R. 2:11-2(e)(2). We address defendant's remaining arguments.
It is also worth noting the procedural defect in defendant's merits brief, which fails to properly indicate certain issues were not raised below. See R. 2:6-2(a)(1).
Review of a municipal court conviction is first addressed by the Superior Court de novo. R. 3:23-8(a). The Law Division must independently issue findings of facts and conclusions of law based on the record, as developed by the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). See also State v. Ross, 189 N.J. Super. 67, 75 (App. Div.) (stating the Law Division performs "an independent fact-finding function in respect of defendant's guilt or innocence"), certif. denied, 95 N.J. 197 (1983). Our review of the Law Division's de novo decision is limited to "whether there was sufficient credible evidence in the record to have led to the judge's findings." Avena, supra, 281 N.J. Super. at 333.
Defendant challenges her convictions, maintaining they were unsubstantiated by sufficient credible evidence in the record, because they were "based exclusively on [Officer Fariello]'s word." She argues the lack of corroborating evidence to support the judge's credibility findings results in the State's failure to prove her guilt beyond a reasonable doubt. We disagree.
Defendant's attack on Officer Fariello's credibility, pinpointing discrepancies in his testimony, was presented before both the Municipal Court and the Law Division and rejected as neither compelling nor material. Defendant cites no other evidence to support her credibility challenge.
There was a video of the motor vehicle stop; however, during the municipal court trial the video player was not functioning. The prosecutor decided to proceed to trial without the benefit of this evidence. --------
Contrary to defendant's assertions, additional evidence substantiating Officer Fariello's trial testimony is not necessary to demonstrate credibility and uphold a DWI conviction. See State v. Kent, 391 N.J. Super. 352, 355 (App. Div. 2007) (sustaining the defendant's DWI conviction "based upon the arresting police officer's numerous field observations of intoxication that were not contradicted by competing proofs at the municipal trial and were ratified by the Law Division"); See also Biunno & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 701 (2014) ("Testimony by lay witnesses based on the physical characteristics of a drunk driving suspect has consistently been considered admissible on the issue of sobriety.").
In his opinion, the municipal court judge detailed the basis of his credibility determinations after observing the demeanor and character of the witnesses. See State v. Jamerson, 153 N.J. 318, 341 (1998). Judge Marino independently reviewed the municipal court record and recited her factual findings, giving "'due, although not necessarily controlling, regard to the opportunity of a municipal court judge'" to determine witness credibility. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (quoting Johnson, supra, 42 N.J. at 157).
Judge Marino noted no evidence refuted Officer Fariello's testimony relating his observations of defendant's erratic driving, demeanor and physical condition, inability to perform the psycho-motor tests, and conduct when refusing to submit an adequate air sample for the Alcotest. The judge also assessed and rejected defendant's testimony as not credible.
Appellate courts should 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. Jamerson, 153 N.J. 318, 341 (1998); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Johnson, supra, 42 N.J. at 161. Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious andSee also State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2005).
exceptional showing of error. Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952).
[State v. Locurto, 157 N.J. 463, 474 (1999).]
We find defendant's DWI conviction was well-supported by Judge Marino's independent consideration of all the evidence. The conviction will not be disturbed.
The record evidence equally supports defendant's convictions for resisting arrest and refusal. Once advised she was under arrest, defendant became uncooperative, failing to acquiesce and comply with repeated instructions from Officer Fariello. Defendant declined to yield her left hand, keeping it pinned against the side of her body, which ultimately forced Officer Fariello to move her to a nearby grassy area, pin her to the ground, and restrain her by placing two sets of interlocking handcuffs on her wrists.
Defendant's belligerence continued at the police station. Despite multiple attempts and Officer Fariello's repeated recitation of the standard statement instructions, she would not provide an adequate breath sample, instead defendant puffed up her cheeks and spit the Alcotest machine-mouthpiece onto the ground.
It is well-established "anything substantially short of an unconditional, unequivocal assent to an officer's request that the asserted motorist take the breathalyzer test constitutes a refusal to do so." State v. Marquez, 202 N.J. 485, 504 (2010) (citation and internal quotation marks omitted). Here, both Officer Fariello's testimony and documentary evidence admitted from the Alcotest machine showed defendant failed to provide an adequate breath sample. Defendant's urgings for reversal of her convictions are groundless.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION