Opinion
DOCKET NO. A-3534-13T1
04-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PANKAJ KUMAR SHEO, Defendant-Appellant.
Pankaj Kumar Sheo, appellant, argued the cause pro se. William A. Guhl, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Guhl, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 22-13-A. Pankaj Kumar Sheo, appellant, argued the cause pro se. William A. Guhl, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Guhl, on the brief). PER CURIAM
Defendant, Pankja Kumar Sheo, appealed his municipal court conviction for driving under the influence of alcohol in violation of N.J.S.A. 39:4-50. He argued that there was insufficient evidence to support his conviction. In a written opinion dated February 20, 2014, Superior Court Judge Paul W. Armstrong found the State had proven beyond a reasonable doubt that defendant was guilty of the charge. Defendant then filed this appeal. We affirm the conviction.
On October 6, 2012, defendant was stopped by a police officer for exceeding the speed limit, and was subsequently charged as follows: refusal to submit to a breathalyzer, in violation of N.J.S.A. 39:4-50.2; driving while intoxicated, in violation of N.J.S.A. 39:4-50; speeding, in violation of N.J.S.A. 39:4-98; and reckless driving, in violation of N.J.S.A. 39:4-96.
A trial was conducted on May 10, 2013, in the South Bound Brook Municipal Court. Rashawn Davidson, the arresting officer, testified that he observed and clocked defendant on radar traveling thirty-six miles-per-hour in a twenty-five miles-per-hour zone. When he approached the driver side window, he detected the odor of alcohol. Officer Davidson further testified that when asked for his credentials, defendant fumbled with his paperwork and "didn't know what was what[.]" At the time, defendant had slurred speech and red, watery eyes. Officer Davidson continued to detect the odor of alcohol on defendant's breath after he got out of the vehicle.
Officer Davidson described defendant's face as flushed, and his speech slurred. Defendant initially denied drinking, but later admitted to having a beer. Later, at the station, he refused to take the Alcotest, and started talking about how in his country he would not even be talking to the police.
Officer Davidson testified that at the scene of the stop, he asked defendant to perform some standard roadside field sobriety tests. One of these was the "one leg stand test." During the test, defendant was swaying, using his arms for balance, and then put his foot down to maintain balance. A second test defendant was asked to perform was the "walk and turn test." Defendant started too soon, spread his arms out for balance, and failed to touch heel-to-toe several times.
With regard to the field tests, the State provided defense counsel a videotape recording of the stop. The video recording did not actually show the field sobriety tests being performed by defendant, but did capture the audio. The video did, however, capture footage of defendant exiting his car. During the trial, defense counsel attempted to play the recording, but the audio portion would not play in the courtroom. Consequently, there was a slight delay in the trial while efforts were made to obtain working equipment, but these efforts were unsuccessful.
Defendant's counsel did not request an adjournment on the record at that time. Instead, the following was placed on the record starting with a statement by defense counsel:
Mr. Marootian: So what the defense has proposed and — — is that, that the court review the DVD . . . , review the video portion, and I'll continue my cross-examination of Officer Davidson. And then I would like Your Honor to, to at least watch the DVD. And I have no objection if Your Honor watches it at your leisure, so at least you can listen to the - - can do the audio.
The Court: That is acceptable. We'll do that. And continue the trial now. And I will watch it after.
Officer Davidson was cross-examined about the instructions given to defendant before the field tests. The officer was confused as to whether on "the walk and turn test" he had told defendant to start on his left or right foot. Defendant called an expert on field sobriety tests who had seen and heard the video recording from defendant's stop. The defense expert testified that the officer did not give the precise instructions developed by the National Highway Traffic Safety Administration (NHTSA) for either field test. Specifically, he did not start defendant off on the right foot on the "walk and turn test," and did not tell him where to look during the "one leg stand test." The expert therefore testified the results were compromised and could not be relied upon by the officer or the court.
The municipal court judge reserved decision until after she reviewed and listened to the recording. After doing so, she found defendant not guilty of reckless driving, but guilty of all other charges. Defendant appealed to the Law Division judge who made a de novo finding that defendant was guilty of the charges. Defendant filed this appeal raising the following points:
POINT ONE: STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS DRIVING UNDER THE INFLUENCE.
POINT TWO: STOP VIDEO OF THE INCIDENT COULD NOT BE PLAYED WITH AUDIO DURING THE TRIAL, WHICH SEVERELY LIMITED THE CROSS-EXAMINATION OF STATE WITNESS RESULTING IN UNFAIR TRIAL AND ERRONEOUS CREDIBILITY FINDINGS BY MUNICIPAL AND SUPERIOR COURT JUDGE.
We begin our analysis by reciting the familiar standard of review. During a trial de novo, the Law Division is obliged to "determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted). The Law Division judge does not affirm or reverse what occurred in the municipal court. "Rather, [the judge] reviews the transcript and makes an independent determination of the sufficiency of the evidence presented, giving appropriate deference to any credibility assessments the municipal court judge may have made." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004).
Our own standard of review on appeal is markedly different from that applied by the Law Division judge. Unlike the Law Division, we do not make our own findings of fact, and our standard of review is a deferential one. State v. Locurto, 157 N.J. 463, 474 (1999). When we review the findings of the Law Division, our task is "restricted to the test of 'whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record.'" Id. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1998)). With these principles in mind, we turn to a review of this appeal.
We conclude that there is sufficient evidence in the record to sustain the Law Division's conclusion that defendant was operating a vehicle under the influence of alcohol in violation of N.J.S.A. 39:4-50. In this case, there was substantial evidence in the record to support the court's finding of guilt while applying the "beyond a reasonable doubt" standard. Defendant smelled of alcohol, slurred his speech, fumbled with his documents, had red and watery eyes, and admitted drinking after first denying it. These facts were all properly considered by the court.
There were some deviations by the officer from the standardized field test instructions. However, the observations that defendant raised his arms to maintain his balance, did not follow the instructions he was given, and generally performed poorly on the tests were properly considered by the judge. In that regard, we note that a violation of N.J.S.A. 39:4-50(a) can be proven "'through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level.'" State v. Howard, 383 N.J. Super. 538, 548 (App. Div.), certif. denied, 187 N.J. 80 (2006) (quoting State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004)).
Defendant contends that the field sobriety tests should not be given any weight because of the failure to give the exact instructions approved by the NHTSA. Defendant's expert witness testified that the instructions were not precisely correct. The Law Division judge obviously found that defendant's expert witness was not persuasive in discounting the entire value of the field sobriety tests. We agree. There is no legal requirement that officers administer sobriety tests in accordance with the NHTSA standards. No particular sobriety test is a prerequisite for determining intoxication, and an officer can make a valid finding even without the benefit of any field sobriety tests. See State v. George, 257 N.J. Super. 493, 496-97 (App. Div. 1992) (finding sufficient cause to arrest where defendant performed tests "without error" but was found behind steering wheel with odor of alcohol on breath); see also State v. Grant, 196 N.J. Super. 470, 474-77 (App. Div. 1984) (finding probable cause to arrest where defendant did not perform tests but had difficulty balancing, bloodshot eyes, flushed face, and strong odor of alcohol on breath).
A police officer may testify as to his observations of defendant performing field sobriety tests even when not properly trained. The Supreme Court has stated:
[E]ven if no qualifying experience or training of the officers is shown, it does not follow that their testimony must be excluded. It is entirely proper for them to describe the tests or maneuvers they had the defendant perform and then testify as to what his physical reaction was when he undertook to execute them. The reaction should be described in terms of what they observed when the tests were undertaken by defendant. . . . In other words, the observed physical reactions to such tests are on the same plane as other common factual indicia that a person is under the influence of intoxicating liquor which always may be testified to by a layman. Of course the ultimate determination of defendant's intoxication within the meaning of the statute rests with the trial court on
all the evidence in the case.
[State v. Morton, 39 N.J. 512, 514-515 (1963).]
We further find that the inability of defendant to play the audio portion of the recording during the trial did not deprive defendant of a fair trial. The officer was cross-examined in detail on his field test instructions, and defendant's expert reviewed it before trial and referenced the recording during his testimony. In addition, the municipal court judge listened to the recording before rendering her decision, and found it supported her decision. This procedure was suggested by defendant and not objected to at trial.
Therefore, we affirm the judgment substantially for the reasons embodied in Judge Armstrong's opinion of February 20, 2014, in which he made a finding of defendant's guilt beyond a reasonable doubt. Judge Armstrong's opinion is supported by sufficient credible evidence in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION