Opinion
DOCKET NO. A-6314-11T2
01-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DA-RON A. STRICKLAND, Defendant-Appellant.
Levow & Associates, attorneys for appellant (Evan M. Levow, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nathan C. Howe, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 15-12-R.
Levow & Associates, attorneys for appellant (Evan M. Levow, of counsel and on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nathan C. Howe, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a trial de novo in the Law Division, defendant Da-Ron A. Strickland was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and failure to maintain lane, N.J.S.A. 39:4-88b. We affirm.
Defendant does not challenge his conviction for failure to maintain lane.
We derive the following facts from the record. While on patrol at approximately 12:30 a.m. on March 20, 2010, New Jersey State Police Trooper Scott Feldman was driving behind defendant's vehicle westbound on Route 22 in Bridgewater. Feldman observed defendant twice cross over from the right lane onto the shoulder of the roadway, and then swerve back across the right lane onto the center lane. Upon stopping defendant's vehicle due to his erratic driving, Feldman detected an odor of alcohol, and noted that defendant's speech was slurred and his eyes were bloodshot and watery. Defendant advised the officer that he was coming from a friend's party in Newark, where he had a couple of drinks. Feldman observed a half-empty bottle of Hennessey liquor under the driver's side seat. Defendant stated the bottle belonged to his cousin.
The record does not reflect the presence of any passengers in defendant's vehicle when it was stopped by the officer.
When defendant exited his vehicle at the officer's request, his knees sagged and he was unable to balance himself. Feldman administered two field sobriety tests: the walk and turn test and the one-leg stand test. Defendant failed to properly perform both tests in accordance with the officer's instructions. On the walk and turn test, defendant took the required number of steps, but swayed and failed to keep his arms at his sides. He was again unable to keep his hands at his sides during the one-leg stand test, and he put his foot down two to three times before being instructed to do so.
In response to a question from the officer, defendant advised that he had previously been shot and stabbed in both legs. When questioned further, defendant told Feldman that these injuries would not restrict him in performing the tests. Feldman also requested that defendant recite the letters of the alphabet from "C" to "Y." Defendant was unable to do so, and simply mumbled various letters in no discernible order.
Based on these observations, Feldman placed defendant under arrest and transported him to State Police barracks for a breath test. While there, Feldman observed that defendant was polite and calm, but he continued to have an odor of alcohol emanating from him, slurred speech, and that he swayed, staggered, and displayed difficulty walking. Defendant admitted to having consumed two drinks earlier.
Defendant submitted to a breath test while at State Police headquarters; however, the municipal court judge subsequently ruled the test results inadmissible at trial.
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At trial, defendant presented an expert in field sobriety tests, Herbert Leckie. Citing National Highway and Safety Traffic Administration (NHSTA) standards, Leckie concluded that Feldman had not properly instructed defendant to look at his feet during either the walk and turn test or the one-leg stand test, thus compromising their validity. Leckie further opined that the reliability of those tests could also have been compromised by defendant's leg injuries, if they affected his ability to balance, and because he was fifty or more pounds overweight. The expert conceded that defendant did not recite the alphabet properly.
In a written decision, the municipal court judge found defendant guilty of DWI and failure to maintain lane, noting his "erratic driving, admission of consumption of alcoholic beverages, physical appearance, and performance on the psychophysical tests." The judge sentenced defendant to a three-month driver's license suspension and twelve hours in the IDRC program, and imposed the appropriate fines, court costs and surcharges on the DWI conviction. A fine and court costs were imposed for the failure to maintain lane violation.
Defendant appealed his conviction to the Law Division. Following a trial de novo, Judge Robert B. Reed made detailed factual findings and legal conclusions in a comprehensive ten- Page written decision. Judge Reed found defendant guilty of both offenses, and reimposed the same sentences.
On appeal, defendant raises the following contention:
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MR. STRICKLAND OPERATED A MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL.We reject this contention as without merit.
On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division - not the municipal court. Id. at 162. We must accord deference to the trial court's findings of facts and determinations of credibility. State v. Locurto, 157 N.J. 463, 474 (1999). "We do 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 give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
A DWI conviction may be based upon physical evidence, such as symptoms observed by the arresting police officers or failure of the defendant to perform adequately on balance and coordination tests. State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996); see also State v. Ghegan, 213 N.J. Super. 383, 385 (App. Div. 1986). A defendant's demeanor, physical appearance, slurred speech, and bloodshot eyes, together with an odor of alcohol or an admission of the consumption of alcohol and poor performance on field sobriety tests, are sufficient to sustain a DWI conviction. State v. Bealor, 187 N.J. 574, 588-89 (2006); State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993); Ghegan, supra, 213 N.J. Super. at 385.
Given our standard of review, we are satisfied that the record contains ample credible evidence from which Judge Reed could have found defendant guilty of DWI beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162. Defendant's erratic driving, slurred speech, bloodshot and watery eyes, together with the odor of alcohol, his admission of the consumption of alcohol coupled with the presence of a half-empty bottle in the vehicle, and his poor performance on field sobriety tests, including a complete inability to coherently recite the requested letters of the alphabet, were more than sufficient to sustain a DWI conviction.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION