Opinion
DOCKET NO. A-5170-10T3
06-07-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID REYNOLDS, Defendant-Appellant.
Terry Webb argued the cause for appellant (Hanlon Dunn & Robertson, attorneys; Ms. Webb, of counsel and on the brief). Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Erin Smith Wisloff, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-006.
Terry Webb argued the cause for appellant (Hanlon Dunn & Robertson, attorneys; Ms. Webb, of counsel and on the brief).
Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Erin Smith Wisloff, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from his de novo conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. It is undisputed that defendant struck a parked vehicle when he drove home from a restaurant, a distance of approximately two miles. The main question is whether the State has proven beyond a reasonable doubt that defendant was under the influence of alcohol when he drove home. We affirm.
On December 17, 2009, Officer David Xenitelis was dispatched to the area of Whippany Road and Sylvan Way. When he arrived, the officer noticed that "some of the pavement had actually been gouged up." The officer testified that the gouge marks "appeared to be . . . made by a tire that had been blown out or an axle that had been dragging . . . off a vehicle." He followed the gouge marks on Sylvan Way directly to defendant's home.
When Officer Xenitelis arrived at the house, he located defendant outside his home. The officer testified that he could tell that defendant was "extremely intoxicated." Defendant admitted to the officer that he struck a parked car and that he had his last alcoholic drink at a restaurant, which is located "a couple of minutes" from defendant's home. Officer Xenitelis arrested defendant, charged him with DWI, and transported him to the police headquarters.
Meanwhile, Officer Carmen Capinegro had been dispatched to the area where the parked car was located. He arrived at the location, observed that the rear-end of a white Honda "[h]ad been crushed pretty good," and noticed a trail of fluid and gouge marks that led from the Honda to defendant's home. Officer Capinegro then traveled to police headquarters where defendant admitted to him that he was not paying attention to the road and struck the parked Honda. The Honda was located between the restaurant and defendant's home.
The matter was tried in the Township of Morris Municipal Court before Judge Robert J. Nish. Officers Xenitelis and Capinegro testified for the State. Defendant did not testify. Judge Nish rendered an oral opinion and found defendant guilty of DWI. Judge Nish treated the DWI conviction as defendant's second offense, sentenced him to two-years loss of license, and imposed penalties and fines. Defendant then appealed to the Law Division.
Judge Stuart A. Minkowitz conducted a trial de novo in the Law Division and issued an eight-page oral opinion. Defendant contended that the State failed to introduce sufficient evidence to prove he was under the influence when he drove home from the restaurant. Judge Minkowitz disagreed and stated:
The pieces of the puzzle fall together. While it's not a neat puzzle, nevertheless all the pieces are present.Judge Minkowitz then found defendant guilty of DWI. Judge Minkowitz treated the DWI conviction as defendant's first offense, sentenced him to seven-months loss of license, and imposed fines and penalties. This appeal followed.
First, the testimony is that the defendant admitted to drinking at the [restaurant]. The last drink he had was at the [restaurant], not any time thereafter.
He admitted to the officers that the last drink he had was right before he saw them. While that may not have occurred two minutes before, the officer's testimony indicates that . . . it would take [approximately two minutes] to get between the [the restaurant and defendant's home].
I acknowledge that there was a car accident in between. But again, these are approximate times. And it's clear from the defendant's statement that [one could draw] a reasonable inference [that the accident] had occurred in the very recent past. Perhaps not within two minutes of the officer's arrival at his home, but certainly very close to it, which would be corroborated with the officer's testimony, it's the time it takes to get between the two locations.
[T]he white Honda . . . had damage consistent with the damage to the defendant's vehicle. And there's no dispute that this vehicle belonged to the defendant. [W]hite paint [was transferred] onto the defendant's vehicle, and the vehicle which was struck . . . was white. There was a trail of fluids and a gouge in the road directly leading from the Honda . . . to the defendant's vehicle in his driveway. It was liquid, it wasn't dry liquid, it was actual liquid which would also be an indication of time. Common sense would dictate, liquid doesn't remain liquid for . . . an extended period of time on the roadway.
Defendant was also convicted of other traffic violations arising from the incident, but they are not the subject of this appeal.
The parties agreed that the DWI conviction should be treated as a first offense. Before Judge Minkowitz imposed the sentence, defendant had pled guilty to a second DWI and was awaiting sentencing on that second DWI.
On appeal, defendant raises the following points:
POINT I
THE STATE DID NOT PROVE BY COMPETENT EVIDENCE BEYOND A REASONABLE DOUBT THAT MR. REYNOLDS OPERATED WHILE INTOXICATED.
POINT II
THE STATE FAILED TO ESTABLISH THE NEXUS BETWEEN THE TIME OF INTOXICATION AND THE TIME OF OPERATION AND THUS FAILED TO PROVE A NECESSARY ELEMENT OF THE OFFENSE.
In a matter such as this, our scope of review is limited. Following defendant's conviction in municipal court, he appealed to the Law Division pursuant to Rule 3:23-1. See, e.g., State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003). The Law Division judge then conducted a trial de novo on the municipal court record pursuant to Rule 3:23-8(a). See, e.g., State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), 209 N.J. 430 (2012). In conducting that trial, the Law Division judge was required to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964); see also Adubato, supra, 420 N.J. Super. at 176. In our review, we must likewise give deference to the findings of the trial judge who was influenced by his opportunity to hear and see the witnesses. Johnson, supra, 42 N.J. at 161. We then determine whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Our review of the law is de novo. Id. at 158-59.
After considering the record and briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Minkowitz in his thorough oral opinion. We add the following brief comments.
Here, the State proved that defendant was "under the influence" through the observations of the police officers. See State v. Ravotto, 169 N.J. 227, 242 (2001) (noting that proof of blood alcohol levels to convict drunk drivers is not required). Physical manifestations of intoxication have been held to include: slurred speech, the smell of alcohol on defendant's breath, fumbling for credentials, staggering or swaying while standing or walking, and belligerent behavior. See Ravotto, supra, 169 N.J. at 242; Johnson, supra, 42 N.J. at 153; State v. Hammond, 118 N.J. 306, 308 (1990). In determining whether a driver is under the influence of alcohol, field sobriety tests and breathalyzer tests are not always required. Even without such tests, "observational evidence" can be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI." State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd, 293 N.J. Super. 535 (App. Div. 1996).
This is so even though defendant submitted to a breathalyzer test, which indicated a .23 blood alcohol level.
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Here, Officer Xenitelis testified that he did not perform field sobriety tests because defendant "could barely stand on his own two feet." The officer observed that defendant's eyes were "glazed over" and "bloodshot," and that his speech was "[v]ery slurred." Defendant needed assistance walking at the police headquarters. Based on the officers' observations, there was sufficient evidence in the record to conclude that defendant was "under the influence."
Proving operation of a car may be done by direct or circumstantial evidence so long as that evidence is competent and meets the standards of proof. State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). As we noted in State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005) (emphasis in original), N.J.S.A. 39:4-50, the drunk driving statute, applies to "a person who operates a motor vehicle while under the influence of intoxicating liquor." We further held in that case:
"Operation" may be proved by actual observation of the defendant driving while intoxicated, State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976); by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, State v. Mulcahy, 107 N.J. 467, 476 (1987); [State v.] Morris, 262 N.J. Super. [413,] 419-20 [(App. Div. 1993)]; State v. Sweeney, 77 N.J. Super. 512, 521 (App. Div. 1962)[, aff'd, 40 N.J. 359 (1963)]; State v. Witter, 33 N.J. Super. 1, 5-7 (App. Div. 1954); or by defendant's admission, State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant's conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 506 (1981); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974) (affirming defendant's conviction based on his admission to drinking and driving when the police woke him up in his parked car on Interstate 287); State v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960) (affirming defendant's conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found "buried full length in some shrubbery and lilac bushes").
[Ebert, supra, 377 N.J. Super. at 10-11.]
Here, defendant stated to Officer Capinergo at police headquarters that he struck the parked vehicle because he was talking on his cell phone and not paying attention to the road ahead. Defendant told Officer Xenitelis that he had his last drink at the restaurant, which was approximately two minutes before the officer arrived at defendant's home. It takes approximately two minutes to travel from the restaurant to defendant's home. The officer also verified with the Honda owner that the vehicle damage was new. Thus, there is sufficient evidence in the record to conclude that defendant operated his vehicle between the restaurant and his home that night.
We are therefore satisfied that the record contains sufficient credible evidence that defendant is guilty of DWI beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION