Opinion
DOCKET NO. A-5915-09T1
09-29-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM P. VOLL, Defendant-Appellant.
Greggory M. Marootian argued the cause for appellant. Michelle J. Ghali argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5942.
Greggory M. Marootian argued the cause for appellant.
Michelle J. Ghali argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant William Voll appeals from his driving while intoxicated (DWI) conviction, N.J.S.A. 39:4-50, in the municipal court, and again on appeal in the Law Division after a trial de novo. We affirm.
According to the State's proofs, at approximately 3:00 a.m. on August 1, 2009, defendant struck an SUV parked on Elmore Avenue in Elizabeth with such force to push it onto the sidewalk. The EMS and fire department were first on the scene, followed by police Officers Joseph Aliseo and Daniel Rivera. Defendant complained of chest and shoulder pain, but refused medical attention, had no visible signs of injury, and did not appear to be in discomfort.
Upon their arrival, Officers Aliseo and Rivera observed defendant standing unsteadily on the lawn, "swaying back and forth." As Aliseo approached, he detected a strong odor of alcohol on defendant's breath. When asked about the accident, defendant replied "what does it look like happened," or words to that effect. When questioned further by Aliseo, defendant admitted being the driver of the car with the front-end damage and that he was driving too far to the right to avoid hitting the parked SUV. Defendant also admitted drinking a few shots about one hour earlier. He then refused to submit to field sobriety tests.
Defendant was arrested, handcuffed, and placed in the patrol car. Upon arrival at police headquarters at 4:11 a.m., defendant became belligerent and began screaming and cursing. Officer Aliseo had to forcibly escort defendant into the building as he was resisting and continuing to scream and curse in the officer's face. Eventually, the officers were able to get defendant into the cell block. During processing, defendant remained calm for the most part. At 4:21 a.m., Sergeant Meola administered the Alcotest, gathering two samples from defendant.
The Alcotest results were excluded by the municipal court judge because of errors made by the officer administering the test and the Law Division judge did not consider the results in defendant's trial de novo.
At the close of evidence, the municipal court judge found defendant guilty of DWI, N.J.S.A. 39:4-50, reasoning:
We have the belligerent activity on the part of the defendant. . . . [T]he smell of alcohol, the swaying and the . . . [r]efusal to take the field test.As a third-time DWI offender, defendant was sentenced to six months in jail, a $1000 fine, a $200 surcharge, $33 court costs, a $50 VCCB penalty, and a $75 SNSF fee. Defendant's driving privileges were also suspended for ten years.
And coupled with his behavior and his attitude towards police officers, I'm satisfied that the State has shown beyond a reasonable doubt that the defendant was under the influence of alcohol, and I find him guilty.
On a de novo review of the record, the Law Division judge adjudicated defendant guilty of DWI and imposed the same sentence as the municipal court. Specifically, the judge concluded:
What we have to consider is a number of pieces of evidence in this case. The time
of day is certainly a factor, it's 3 a.m. Is it a strong factor? Certainly not. But it is a factor to consider.
The officer said that there was a strong odor of alcohol. That's certainly a consideration and has to be a part of the puzzle, although it does not indicate how much [defendant] drank, it's certainly indicative of the fact that he was drinking. And I think the most important piece of information that we have that was elicited during the trial is the admission by [defendant] that he had a few shots about an hour prior to the accident.
And I think the accident itself is a factor to be considered, notwithstanding the fact that there are no witnesses, everybody knows that this was "a high impact motor vehicle accident." It involved hitting the rear of a parked truck with the front of the defendant's car with sufficient impact to drive the truck up onto the sidewalk. It connotes that the defendant did not see the truck much before the impact, if at all. The defendant admitted he went too far right on the road and collided with the car.
The physical aspects that Alliso's [sic] testimony that the defendant was kind of swaying back and forth. . . . And Rivera's testimony that he had an unsteady gait are taken into consideration. . . .
. . . .
The defendant's combative nature is also a factor to be considered. Alliso [sic] testified that the defendant was screaming at him, cursing at him, he was screaming in the officer's face and that Officer Alliso [sic] had to forcibly guide defendant in the sally port because the defendant was refusing to go in, he was screaming and cursing.
It was also testified that the defendant was yelling profanities while in the police cruiser. His combative nature in the car and on the way to the sally port, as well as his, more or less flip answer when the officer inquired about the motor vehicle accident, he said, what do you think happened?
. . . .
In weighing all of this evidence, however, considering the totality of the circumstances, it does provide proof beyond a reasonable doubt as to the defendant's guilt. The evidence provides ample proof, in fact, that a deterioration and diminution of the defendant's mental and physical faculties was apparent due to the liquor he admitted consuming. So I do find the defendant guilty of driving while under the influence.
On appeal, defendant argues that the Law Division's adjudication of guilt was not supported by sufficient credible evidence. We disagree.
The function of the Law Division on an appeal from the municipal court is not to search the record for error by the municipal court, or to decide if there was sufficient credible evidence to support the municipal court conviction, but to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make his or her own independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).
In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely, to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a "close one." Ibid.; see also Avena, supra, 281 N.J. Super. at 333.
Just as the Law Division does when conducting a de novo review, we "defer to [the] trial court['s] 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. Locurto, 157 N.J. 463, 474 (1999). Indeed, "the rule of deference is more compelling where . . . 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 fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Id. at 474. So measured, we are satisfied that the evidence in this case established defendant's guilt of DWI beyond a reasonable doubt.
N.J.S.A. 39:4-50(a) prohibits the operation of a motor vehicle under the influence of intoxicating liquor. "The language 'under the influence' . . . means a substantial deterioration or diminution of the mental faculties or physical capabilities of a person. . . ." State v. Tamburro, 68 N.J. 414, 420-21 (1975). With regards to alcohol, it means "[the] motor vehicle operator [is] . . . so affected in judgment or control as to make it improper for him to drive on the highways." Johnson, supra, 42 N.J. at 165. It does not mean that the State must demonstrate that defendant was "'drunk' in the sense of being sodden with alcohol." State v. Nemish, 228 N.J. Super. 597, 608 (App. Div. 1988), certif. denied, 114 N.J. 473 (1989). Moreover, a defendant may be convicted of DWI based solely on the observations of a police officer, even if field sobriety tests or breath tests are not administered. State v. Liberatore, 293 N.J. Super. 535 (App. Div. 1996).
In State v. Morris, 262 N.J. Super. 413 (App. Div. 1993), defendant was deemed to be under the influence based on the strong odor of alcohol on his breath, his "very agitated behavior," and the fact that he was "very wobbly," was "yelling and screaming," and had "'ruffled' clothing," "bloodshot" eyes, and slurred speech. Id. at 421-22. In addition, the arresting officer was of the opinion that defendant undoubtedly "fit the profile of an intoxicated person." Ibid. And in State v. Bryant, 328 N.J. Super. 379 (App. Div. 2000), we noted that the "refus[al] to perform any field sobriety tests . . . may be considered as further evidence of . . . intoxication." Id. at 383; see also State v. Stever, 107 N.J. 543, 554, cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987).
The Law Division judge in this case did not draw an adverse inference from defendant's refusal to perform field sobriety tests.
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Here, the officers' observations coupled with the circumstances surrounding the accident itself provide ample evidence of defendant's guilt. We, therefore, affirm substantially for the reasons stated by the Law Division judge in his oral opinion of June 24, 2010.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION