Opinion
DOCKET NO. A-4037-11T4
05-06-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROYCE BELMAR, Defendant-Appellant.
Keenan & Doris, LLC, attorneys for appellant (Ian C. Doris, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Jacqueline Choi, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 1-34-11.
Keenan & Doris, LLC, attorneys for appellant (Ian C. Doris, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Jacqueline Choi, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Royce Belmar was convicted in the Westwood Municipal Court of driving while under the influence (DWI), N.J.S.A. 39:4-50, and failing to display a front license plate, N.J.S.A. 39:3-33. Following a trial de novo in the Law Division, he was again found guilty and was given the same sentence. As a second offender, the court imposed forty-eight hours in the Intoxicated Driver Resource Center Program (IDRC), a two-year installation of the ignition interlock device, and a two-year license suspension. The court also imposed mandatory fines and penalties. Defendant was fined and charged court costs for failing to display a license. Defendant appealed his DWI conviction. By order of April 23, 2012, the court stayed defendant's sentence pertaining to the IDRC and monetary fines, costs, surcharges and penalties relating to the DWI offense.
On appeal, defendant argues:
POINT IAfter reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction.
ON DE NOVO REVIEW THE TRIAL COURT IMPROPERLY SHIFTED THE BURDEEN OF PROOF IN A QUASI CRIMINAL MATTER TO DEFENDANT.
POINT II
THE MOTOR VEHICLE STOP WAS NOT BASED ON REASONABLE SUSPICION[;] THEREFORE THE EVIDENCE OBTAINED FROM THE STOP IS INADMISSIBLE.
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ACCEPTING AN UNRELIABLE URINE SAMPLE INTO EVIDENCE.
POINT IV
ON DE NOVO REVIEW THE TRIAL COURT FAILED TO PROPERLY CONSIDER THE IMPROPER ADMISSION OF A STATE TOXICOLOGY REPORT AS A BUSINESS RECORD.
POINT V
ON DE NOVO REVIEW THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT EXCLUDING THE DRUG RECOGNITION EVIDENCE.
I.
The State presented the following witnesses at trial - Officers Mark Foley and John Hurtuk, and Detective Robert Saul of the Westwood Police Department, and Sergeant Christopher Bulger of the River Vale Police Department. Defendant testified on his behalf.
The State developed the following proofs. It is undisputed that on the afternoon of March 28, 2011, defendant did not have a front license plate on his car. Officer Foley testified he activated his patrol car's overhead lights and sirens after observing this, but that defendant continued to travel two or three blocks in light traffic before stopping. The officer then approached the driver's side of the convertible and requested credentials. Defendant "rambl[ed] about having to fix his taillight and having to get to New York by sundown so that he could get his ticket dismissed." Officer Foley observed that defendant's pupils were constricted and his movements were slow and deliberate. Defendant provided his credentials after the officer repeated his request for documentation.
When the officer advised defendant that his car's front license plate was not displayed, defendant slowly reached toward the rear seat and retrieved the missing front plate. Officer Foley explained that defendant brought the plate up to his face and "stared at it." Backup officers arrived. The officers requested defendant exit the car and advised him of his Miranda rights. Defendant informed police that he had been injured in a prior motorcycle accident and could not perform field sobriety tests. He also advised police that he frequently took pain medication and had received a Cortisone shot several days earlier.
Defendant unsuccessfully performed two pre-exit field sobriety tests. Contrary to instructions, defendant performed the finger dexterity test five times rather than four as directed, and when using his left hand counted out of order both forwards and backwards. He also disregarded Officer Foley's direction not to sing the alphabet. Defendant additionally performed several post-exit psychomotor tests, which neither judge considered because of defendant's prior injuries.
An Alcotest reading at the police station produced a 0.0 BAC. Defendant also provided a urine sample, which collection and placement in a container was observed by Officer Hurtuk. He and Officer Foley could not agree on which one of them placed the sample in the drop box; however, Det. Saul, the evidence custodian, testified that on the morning of March 29, 2011, he observed defendant's sample in the locked drop box. He transported it to the state police laboratory, where it tested positive for amphetamines, cannabinoids, Butalbital, and Oxycodone.
Defendant was transported from the Westwood Police station to the River Vale Police Department for a Drug Recognition Expert (DRE) Evaluation conducted by Sgt. Bulger. Defendant admitted taking Xanax and Oxycodone that day. Sgt. Bulger testified that defendant's eye examination revealed constricted pupils that showed little or no reaction to light, consistent with recent drug use and objective eye tests indicated that defendant was under the influence of a depressant. He concluded that defendant was under the influence of a controlled dangerous substance and was unable to safely operate a motor vehicle.
Defendant testified that he took the prescription medication Oxycodone at about 5:00 a.m. on March 28, 2011 for injuries sustained in a motorcycle accident. He also admitted he may have taken amphetamines, specifically Adderall, on that day. Defendant also admitted he might have smoked marijuana within twenty days. Defendant also testified that he received a Cortisone shot for pain relief two days before the motor vehicle stop. Defendant claimed he pulled his car over promptly after Officer Foley activated his patrol car's lights. He claimed a panic attack caused him to slur his speech.
Based on the cumulative evidence presented, Judge Eugene H. Austin found the State had proven, beyond a reasonable doubt, that defendant was guilty of driving while under the influence of CDS. The judge noted: (1) the proper stop by the officer for an equipment violation; (2) defendant's rambling response; (3) defendant's constricted pupils; (4) defendant's slow and deliberate movements; (5) defendant's odd behavior of staring at the license plate; (6) defendant's miscounting the number of times he performed the finger dexterity test; (7) defendant's counting the fingers on his left hand out of order; (8) defendant's singing the alphabet contrary to the officer's instruction; and (9) defendant's admission he had taken Oxycodone earlier in the day.
II.
We review the Law Division judge's findings by application of the standard enunciated in State v. Locurto, which requires appellate deference to factual findings when the findings could reasonably be reached through reliance on credible evidence in the record. 157 N.J. 463, 471 (1999). Only when the record produces a "feeling of 'wrongness'" - that is, when the appellate court is "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction" - will we disregard a judge's factual findings. Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). On the other hand, our review of the judge's "interpretation of the law and legal consequences that flow from established facts" is de novo. State v. Smith, 212 N.J. 365, 387 (2012) ("In considering the legal conclusions to be drawn from those facts, our review is de novo.").
Defendant argues as the first and most critical error that the Law Division judge improperly shifted the burden of proof to him when he made the comment that "[t]here was no testimony, by any expert, that it [Oxycodone] would not still affect his ability to drive." Defendant posits that "[t]his finding clearly turns the criminal justice system on its had making it incumbent on defendant to prove that he was not under the influence when the burden of proof is on the State to prove that defendant was operating a vehicle while under the influence." We disagree.
The judge enumerated the litany of cumulative evidence presented by the State demonstrating that defendant was under the influence of CDS when he was stopped by Officer Foley. The challenged statement was made after the judge noted defendant's own admission to taking a strong, opiate-based pain medication, Oxycodone, earlier that day. The judge was simply commenting that defendant could have presented expert testimony to demonstrate that his earlier medication no longer affected his ability to drive. Taken in context, it is apparent the judge was not shifting the burden of proof to defendant and had overwhelming evidence in the record to find the State had sustained its burden of proof beyond a reasonable doubt.
We also reject as without merit defendant's challenge to the motor vehicle stop. Law enforcement officers may stop a motor vehicle based on a reasonable or articulable suspicion of a vehicle violation. 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). N.J.S.A. 39:3-33 requires that a front license plate be displayed whenever one has been issued. Officer Foley observed a convertible travelling with a missing front license plate in violation of that statute. See State ex rel. D.K., 360 N.J. Super. 49, 52 (App. Div. 2003) (officer properly stopped vehicle with tinted plastic cover on license plate); State v. Murphy, 238 N.J. Super. 546, 554 (App. Div. 1990) (officer properly stopped vehicle with diagonally positioned plate). We also defer to the municipal court judge's crediting Officer Foley's testimony that "there was a lengthy period of time that passed before [] defendant stopped his vehicle" after being signaled by the officer, which "does indicate that there may have been some attention concerns with the operation of the motor vehicle." See State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000) (reiterating that "[a]ppellate courts should defer to 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"). Thus, Officer Foley possessed a reasonable suspicion to believe a motor vehicle infraction had occurred and properly stopped defendant. Defendant's physical characteristics and demeanor when the officer requested his credentials were sufficient for the experienced officer to suspect he was impaired so as to justify the pre-exit tests.
Defendant next asserts as reversible error the improper admission of the urinalysis into evidence without establishing the chain of custody and the admission of the state toxicology report as a business record. As the Law Division judge reached his decision without considering either the urinalysis or laboratory certificate, their admission is, at best, harmless error. See Johnson, supra, 42 N.J. at 162 (holding that appellate review is limited to determining whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court).
The municipal court judge limited Officer Bulger's testimony to his observations of defendant. To the extent that his testimony exceeded those bounds and strayed into impermissible opinion, as argued by defendant, however, it had no bearing on the ultimate result in this case as the Law Division judge made no reference to Officer Bulger's testimony in his articulated reasons supporting the DWI conviction. Officer Foley's observations and defendant's admission were sufficient to support that finding beyond a reasonable doubt.
Affirmed. The stay is dissolved.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).