Opinion
DOCKET NO. A-4016-14T2
05-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MAXWELL AMPOFO, Defendant-Appellant.
Jeffrey F. Dragon & Associates, P.A., attorneys for appellant (Robyn Dragon, on the briefs). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 42-14. Jeffrey F. Dragon & Associates, P.A., attorneys for appellant (Robyn Dragon, on the briefs). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Maxwell Ampofo appeals from the April 2, 2015 judgment of the Law Division finding him guilty of refusal to submit to a breath test (refusal) contrary to N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a. Defendant also appeals the denial of his suppression motion. We affirm.
Although the April 2, 2015 judgment lists only the implied consent statute, N.J.S.A. 39:4-50.2, a refusal charge necessarily implicates both the implied consent statute, and the refusal statute, N.J.S.A. 39:4-50.4a, as they "not only cross-reference one another internally, but they also rely on each other substantively." State v. Marquez, 202 N.J. 485, 502 (2010).
I.
We derive the following facts from the record. On August 1, 2013, at approximately 10:17 p.m., New Jersey State Trooper Brian Gambone was patrolling the New Jersey Turnpike when he observed a vehicle traveling at an excessive speed. He reported to dispatch that he was stopping a Caucasian female with long hair, who was driving a dark-colored, four-door Acura, for speeding. Gambone also observed the vehicle change lanes without signaling. However, when he stopped the Acura, Gambone observed that the driver was a dark-skinned male with short hair.
Upon approaching the car, Gambone detected the odor of alcohol and observed defendant's eyes were bloodshot and watery. Defendant initially had difficulty providing the officer with his driving credentials. Gambone subsequently administered five field sobriety tests, which defendant failed to perform satisfactorily. As a result of defendant's alleged speeding, unsafe lane change, poor performance on the field sobriety tests, and the odor of alcohol, Gambone arrested defendant for driving under while intoxicated of alcohol (DWI) and transported him to police headquarters. While riding in the patrol vehicle, Gambone continued to note the odor of an alcoholic beverage.
At the station, although defendant consented to a breath test, he failed to submit adequate breath samples on three occasions. He asserted that he had several medical conditions, and a need to use the restroom, that impeded him from successfully performing the field sobriety tests and submitting proper breath samples. Ultimately, defendant was issued four summonses charging him with speeding, N.J.A.C. 19:9-1.2; unsafe lane change, N.J.S.A. 39:4-88b; DWI, N.J.S.A. 39:4-50; and refusal, N.J.S.A. 39:4-50.2.
Defendant moved to suppress all evidence resulting from the motor vehicle stop. Gambone was the sole witness to testify at the suppression hearing. He acknowledged that defendant did not fit the description of the individual he originally provided to the dispatcher. He also acknowledged that there was "medium" traffic with "more than one car on the road" at the time. However, he stated that he never lost sight of the vehicle once he observed it speeding.
The motion is not a part of the record on appeal.
Gambone testified that when he administered the first field sobriety test — the horizontal gaze nystagmus (HGN) test — he asked defendant whether he had any injuries that would interfere with his performance, and defendant did not disclose any. Gambone noted that, after instructing defendant twice to keep his head still for the test, defendant was able to follow the directions "to a degree." Defendant's performance on the HGN test indicated to Gambone that he was possibly under the influence of alcohol.
Defendant began to perform the walk-and-turn test but then exhibited some difficulties, including stepping off the line at one point. Gambone testified that for the first time that evening, defendant indicated he had a medical condition that affected his ability to perform the test. Gambone advised that he would take defendant's condition into consideration.
Thereafter, defendant attempted to perform the one-leg stand test, but was ultimately unable to complete it, again expressing to Gambone that he had an injury. Defendant also failed tests that required him to recite the alphabet and count backwards.
On cross-examination, Gambone conceded defendant spoke with an accent, which created somewhat of a "language barrier." Gambone observed that defendant did not have a "normal gait" and walked with a limp, and was often holding his back, which he attributed to his back injury. Defendant also told Gambone that he needed to use the restroom, which Gambone did not permit him to do until the breath testing at police headquarters was completed.
After hearing oral argument and reviewing a video recording of the stop, the municipal court judge denied defendant's suppression motion. The judge noted that Gambone observed defendant's vehicle speeding and that the video "show[ed] the officer behind the vehicle identified as [] defendant's vehicle." The judge then found:
In this case, we have the odor of alcohol, we have the high speed, . . . we have the difficulty in presenting [defendant's] documentation and then his subpar performance on the balance tests. Even taking into consideration that first, the defendant said he had no injuries then he said he has some back problems or leg problems. He wasn't able to follow instructions given by the officer.
Looking at the totality of the circumstances, I'm satisfied [that] after conducting the investigation, the officer had probable cause to believe that the defendant was driving under the influence. Based on the presence of alcohol, the bloodshot watery eyes and the other factors, [] he had probable cause to place the defendant under arrest and ask him to submit to a breath test.
By stipulation, the parties incorporated the testimony adduced at the suppression hearing into the ensuing trial. The State re-called Gambone, and defendant also testified.
Gambone testified that he attempted to administer a breath test to defendant at police headquarters. Before doing so, he read defendant the standard statement regarding chemical breath tests, and defendant agreed to take the test. Gambone then instructed defendant on the proper method for blowing into the Alcotest machine by reading verbatim the signage above the machine.
On defendant's first attempt, he provided an air volume of .3 liters for a 1.5 second duration, below the adequate sample requirement. Gambone changed the mouthpiece and explained to defendant that his mouth must be completely on the mouthpiece. Defendant's second attempt produced an inadequate sample of 1.1 liters for a 5.1 second duration. After both the first and second attempts, Gambone warned defendant he was not breathing strongly enough to produce the required air volume. On defendant's third attempt, he produced another inadequate breath sample of 1.0 liters in a 4.7 second duration. Gambone then terminated the test and charged defendant with refusal.
Defendant testified that he was thirty-two years old when he came to the United States from Ghana in 1984. He worked for CVS as a pharmacist, and received prescriptions from doctors, followed their instructions, and counseled patients. He stated that, prior to his arrest, he was at his sister's home where he drank half a glass of wine. He indicated that he could not consume more than that because of the medication he was taking for his back condition.
Defendant stated that while he was driving, he switched lanes from the center lane to the right lane to allow the officer to pass him and was blinded by the lights from the patrol vehicle. At this point, defendant saw a black Acura, similar to his black Acura, which was behind him in the middle lane "zoom off." However, Gambone proceeded to stop defendant's vehicle.
Defendant indicated that initially when he was asked whether he had a medical condition, he could not hear the officer because of the traffic noise. He subsequently informed Gambone that he had back pain. Although he was trying to cooperate with the officer, he had difficulty understanding what Gambone was saying. Defendant also informed the officer that he needed to use the restroom, but was told he first had to perform the field sobriety tests. Defendant testified that his need to use the bathroom affected his performance on the sobriety tests.
At the station, defendant agreed to submit to a breath test. He again asked to use the restroom, which Gambone denied, until he completed the test. Defendant testified that his need to use the bathroom affected his ability to blow into the Alcotest machine. Despite his condition, he truly attempted to do so, yet received a warning from the officer after his second attempt that he would be given one final chance to submit a breath sample. After his third attempt failed, Gambone informed him that he was being charged with refusal.
The municipal judge found defendant not guilty of speeding. The judge again found that the officer's observations of the vehicle's excessive speed established probable cause to stop the vehicle. However, because there was "some dispute in the record whether or not the officer was tracking [defendant's] vehicle or some other vehicle," the State failed to prove the speeding violation beyond a reasonable doubt.
Defendant was also found not guilty of DWI. The judge noted various observations by the officer that were consistent with alcohol consumption, including defendant's difficulty in producing his credentials, the odor of alcohol on his breath, his admission to drinking earlier in the evening, and his difficulty in following the officer's directions and performing the field tests. However, taking into account defendant's explanations, including his purported back injury, the road noise, and his limited familiarity with English, the judge concluded the State had not proven the DWI charge beyond a reasonable doubt.
The municipal judge found defendant guilty of the unsafe lane change violation. The judge also determined that probable cause existed to arrest defendant for DWI based upon the officer's observations as noted above. Therefore, he concluded that the police appropriately determined to administer a breath test to defendant. The judge further found that defendant refused to submit to the breath test because he failed to provide an adequate breath sample despite being given three opportunities and adequate warnings and instructions.
Additionally, the judge was not persuaded by defendant's testimony that he was unable to give an adequate breath sample due to pain he was suffering from his back problems or discomfort from having to go to the bathroom. The judge explained:
The [c]ourt has not been presented with any medical testimony, either by way of an expert or an expert's report that, because of his condition, his back condition, he wasn't able to give a breath sample. This is not a situation where the defendant has come forward and says I suffer from emphysema or some other respiratory problem that would prevent me from giving a breath sample. I don't have any medical testimony,
any scientific testimony, and I think without that, I can't really make the leap that a back pain prevents somebody from giving a breath sample.Accordingly, the judge found defendant guilty of refusal.
So[,] I don't find the defendant's explanation as to why he gave the breath sample excusable.
At the Law Division trial de novo, Judge Thomas P. Kelly also found defendant guilty of refusal. In a thorough oral opinion, Judge Kelly first found there was a reasonable and articulable basis to stop defendant's vehicle due to its excessive speed notwithstanding that defendant ultimately was not convicted of speeding.
Judge Kelly also determined that probable cause existed to arrest defendant for DWI based on the totality of the circumstances. These included:
the odor of alcohol, the bloodshot and watery eyes, the difficulty in assembling his documents, the odor of alcohol in the car on two occasions, the field sobriety tests, the loss of coordination and physical aspects of that, and, of course, there was [a] problem following instructions.Accordingly, the judge denied the defense motion to suppress the stop and defendant's subsequent arrest.
The judge found that the officer read defendant the standard statement that included the warning: "Even if you agree to take the test but then do not follow my instructions, do not properly perform the test, or do not provide sufficient breath samples, I will charge you with refusal to submit to the breath testing." Defendant failed to give a sufficient sample, despite this and additional warnings from the officer. The judge also found there was no medical evidence to support defendant's claim that he was physically unable to provide an adequate sample. The judge imposed the same sentence as the municipal court: a seven-month driver's license suspension, a six-month ignition interlock requirement, and various fines, court costs, and surcharges. This appeal followed.
The judge found defendant not guilty of making an unsafe lane change, reasoning that it may have come in response to the officer's direction to pull over.
On appeal, defendant raises the following contentions:
POINT I
THE JUDGE ERRED IN NOT GRANTING [] DEFENDANT'S MOTION TO SUPPRESS.
POINT II
JUDGE KELLY ERRED WHEN CREDITING TESTIMONY OF TROOPER GAMBONE ON APPEAL.
POINT III
THE TRIAL JUDGE ERRED IN FINDING [DEFENDANT] GUILTY OF A REFUSAL.
POINT IV
THE MUNICIPAL COURT JUDGE'S INTERPRETATION OF STATE V. SCHMIDT WAS INCORRECT AND THE [LAW DIVISION] ERRED BY NOT CONSIDERING THE CASE AS PROPER PRECEDENT.
206 N.J. 71 (2011). --------
II.
We first address the suppression issues raised in Points I and II of defendant's brief. Defendant argues that Gambone lacked a reasonable suspicion to stop him because he was not the individual initially identified as speeding. Defendant relies upon our holding in State v. Puzio, 379 N.J. Super. 378, 383 (App. Div. 2005), that "where an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop." Thus, he contends that the events following the stop must all be suppressed as the "fruit of the poisonous tree." Defendant also relies on State v. Badessa, 185 N.J. 303 (2005), where the Court found there was no lawful basis to stop the vehicle and invalidated the refusal charge that followed.
The Supreme Court has explained the standard of review applicable to our consideration of a trial judge's fact-finding on a motion to suppress:
We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Deference to those findings is particularly appropriate when the trial court has the "opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Ibid. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo." State v. Vargas, 213 N.J. 301, 327 (2013).
[State v. Watts, 223 N.J. 503, 516 (2015) (second alteration in original).]
An appellate court remains mindful not to "disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Rather, we reverse only when the court's findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
Guided by these principles, we reject as without merit defendant's challenge to the motor vehicle stop. It is well settled that law enforcement officers "may stop motor vehicles where they have a reasonable and articulable suspicion that a motor vehicle violation has occurred." State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990). See also State v. Barrow, 408 N.J. Super. 509, 517 (App. Div.), certif. denied, 200 N.J. 547 (2009). Any motor vehicle violation, "no matter how minor," justifies a motor vehicle stop. State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div. 2011).
Here, Judge Kelly determined that the vehicle's "excessive speed" constituted the reasonable and articulable suspicion needed to stop it. The judge deemed the officer's initial misidentification of the driver as a white female with long hair understandable because "we're talking about a car doing [eighty] miles an hour, [at] 10:17 at night, in the dark." The judge further noted Gambone's testimony that he followed defendant's car and did not lose sight of it until he stopped it.
Moreover, the fact that defendant was later acquitted of the speeding charge does not negate the reasonable suspicion sufficient to stop it. We have noted that,
on a motion to suppress, "the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense." Thus, it is inconsequential that the defendant was ultimately acquitted of the motor vehicle violation. The issue is whether the officer
had a reasonable and articulable suspicion of a violation before the stop.Thus, we find no basis to disturb Judge Kelly's determination that Gambone possessed a reasonable suspicion that a motor vehicle violation had occurred and properly stopped defendant.
[State v. Heisler, 422 N.J. Super. 399, 413 (App. Div. 2011) (additional citation omitted) (quoting State v. Williamson, 138 N.J. 302, 304 (1994)).]
Contrary to defendant's argument, we do not find Puzio controlling. In Puzio, a police officer saw a sports car that bore a commercial license plate but lacked signage identifying the owner of the vehicle. Puzio, supra, 379 N.J. Super. at 380. Believing this violated N.J.S.A. 39:4-46(a), which requires display of a business name and address on a commercial vehicle, the officer stopped the car and the defendant was ultimately arrested for DWI. Ibid. The municipal judge denied the defendant's motion to suppress and reasoned that the stop was made "in good faith and based on articulable suspicion." Ibid. The defendant pled guilty to DWI and appealed. Id. at 381. A Law Division judge agreed that the police officer had a reasonable and articulable suspicion to stop the driver based on his interpretation of that statute. Id. at 381.
Defendant appealed and we reversed. We first noted the distinction between cases where an officer has a mistaken view of a statute and those "where the officer correctly understands the statute but arguably misinterprets the facts concerning whether a vehicle, or operator, has violated the statute." Id. at 382. We held that "where an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop." Id. at 383. We rejected the judge's implied reliance on the officer's good faith, noting that "our courts have rejected a good faith exception to the Fourth Amendment exclusionary rule." Ibid. (citing State v. Novembrino, 105 N.J. 95, 157-58 (1987)).
Unlike Puzio, here the trial court properly found that Gambone had a reasonable belief that a traffic law had been violated, and the only dispute was whether his factual observations proved defendant's guilt beyond a reasonable doubt. Further, in light of the United States Supreme Court's decision in Heien v. North Carolina, ___ U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014), we have recently "express[ed] doubts as to the continued vitality of Puzio." State v. Sutherland, ___ N.J. Super. ___ , ___ (App. Div. 2016) (slip op. at 14).
We find defendant's reliance on Badessa equally misplaced. There, the police set up a sobriety checkpoint without displaying any signs instructing motorists that turning into an intersecting road was prohibited. Badessa, supra, 185 N.J. at 306-07. The defendant made a turn at that intersection and was stopped by an officer who then observed that defendant's eyes were glassy and his speech was slow and slurred. Id. at 307. After unsuccessfully performing two field sobriety tests, defendant was arrested for DWI. Ibid. Defendant argued that the motor vehicle stop was unconstitutional because the police did not give adequate warnings to motorists that, once they entered the checkpoint zone, they were not permitted to turn onto an intersecting street. Id. at 308. The Court agreed, finding that the defendant could not be prosecuted for making an otherwise lawful turn, when the officers placed no warning at the checkpoint that the vehicle had to proceed to the checkpoint. Id. at 313.
Here, unlike Badessa, defendant's actions were not otherwise lawful. Rather, defendant was observed to be speeding and then unlawfully changing his lane without signaling. Accordingly, defendant's motion to suppress the stop and the events that followed it was properly denied.
III.
Defendant argues in Points III and IV of his brief that the court erred in finding him guilty of refusal. These arguments warrant little discussion.
Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (alteration in original) (quoting Johnson, supra, 42 N.J. at 157). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).
Since the Law Division judge is not in a position to judge the credibility of witnesses, he should defer to the credibility findings of the municipal court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "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 and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
Applying these principles, we conclude that the record supports Judge Kelly's conclusion that defendant refused to complete the breath test. It is well established that "anything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the [breath] test constitutes a refusal to do so." State v. Widmaier, 157 N.J. 475, 488 (1999) (quoting State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div.), certif. denied, 126 N.J. 323 (1991)). "[A] defendant's subjective intent is irrelevant in determining whether the defendant's responses to the officer constitute a refusal to take the test. [A] motorist has no right to delay a [breath] test." Id. at 498. Two failures to provide an adequate breath sample have been found sufficient to constitute refusal despite a verbal agreement by the defendant to submit to a breath test. In re Kallen, 92 N.J. 14, 17-18 (1983). See also Schmidt, supra, 206 N.J. at 87 (sustaining defendant's refusal conviction for failing to provide proper breath samples).
Applying these principles here, we discern no basis to disturb the judge's determination that defendant unequivocally refused to submit to the breath test following his arrest. Although defendant said he would comply with the instructions Gambone gave him for the breath test, he clearly failed to do so. Moreover, defendant failed to support his claim that his physical discomfort and injuries prevented him from giving a sufficient breath sample. We have recently held "that a defendant bears the burden of proof regarding his or her alleged physical impairment to complete a chemical breath test." State v. Monaco, ___ N.J. Super. ___ , ___ (App. Div. 2016) (slip op. at 15).
The driver has the burden of proving by competent evidence that he or she was physically unable to take the test. When no obvious inability is apparent, the driver must support a claim of inability with competent medical evidence, and failure to provide such evidence will result in a finding of refusal.Defendant produced no such competent medical evidence here.
[Id. (slip op. at 16-17) (quoting Richard E. Erwin, Defense of Drunk Driving, Criminal-Civil (3d ed. 2015) § 4.08[8])).]
Finally, defendant argues that he received ineffective assistance of counsel at the municipal court level. He asserts that municipal trial counsel failed to submit his medical records to the court, even though she had them in her possession and provided them to the State in pre-trial discovery. However, defendant's claim of ineffective assistance of counsel is more appropriately addressed in a post-conviction proceeding. State v. Preciose, 129 N.J. 451, 460 (1992); see R. 7:10-2. The information contained in the medical records, and whether it would suffice to establish defendant's claim that his medical condition prevented him from giving sufficient breath samples, is not evident from the record. Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION