Opinion
DOCKET NO. A-4523-09T3
05-22-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN KUKLA, Defendant-Appellant.
Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Sandra L. Battista, on the brief). David J. Weaver, Sussex County Prosecutor, attorney for respondent (Laura L. Nazzaro, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Skillman.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 39-12-09.
Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Sandra L. Battista, on the brief).
David J. Weaver, Sussex County Prosecutor, attorney for respondent (Laura L. Nazzaro, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Brian Kukla appeals his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. He entered a conditional guilty plea to the offense in the Byram Township municipal court, reserving the right to appeal, after his motion seeking suppression of the Alcotest reading was denied. Defendant's application was based on the arresting officer's alleged failure to engage in an observation period of twenty minutes prior to administering the test. The municipal court judge's decision was affirmed at the trial de novo in the Law Division. See R. 3:23. After our review of the record, we also affirm.
The facts can be briefly summarized. On April 29, 2009, Officer Daniel Dewald of the Byram Township Police Department arrested defendant for DWI at approximately 4:36 a.m. When he drove defendant to the station and attempted to administer an Alcotest, he learned that the machine was not operational. He next took defendant to the nearby Stanhope Borough Police Department. Although Officer Dewald did not time the drive, he estimated the trip took no more than three minutes. Upon arrival, he was advised that the Stanhope machine was not operational either. Dewald then drove defendant to the Netcong State Police barracks, a trip he estimated took no longer than five minutes, and administered the Alcotest at that location. Officer Dewald testified that before testing defendant, he timed a twenty-minute observation period at the State Police barracks using his wrist watch.
At the close of defendant's motion to suppress hearing, the municipal court judge, concluding that the officer had testified "candidly[,]" "clearly," and "convincing[ly][,]" found as a fact that the officer had indeed observed defendant for twenty minutes prior to the Alcotest. On the de novo appeal, the Law Division judge noted, based on his review of the transcript of the hearing, that defendant was taken into custody at approximately 4:27 a.m. and the Alcotest process commenced in Netcong at 5:44 a.m. He also noted that the record made no reference to defendant ingesting, burping, or regurgitating anything such as would have tainted the results. Insofar as defendant's contention that the times noted on the CAD report and other documents did not jibe with the officer's testimony, the Law Division judge observed that there was nothing surprising about slightly different times being calculated by different clocks. He too relied upon the officer's testimony, which he also considered credible, that the officer observed defendant for twenty minutes before administering the test.
On appeal, defendant raises the following point for our consideration:
POINT I. BECAUSE A PROPER OBSERVATION PERIOD WAS NOT MAINTAINED IN THIS CASE, THE BREATH TESTING RESULTS SHOULD HAVE BEEN SUPPRESSED
The function of the Law Division on an appeal from the municipal court is not to search the record for error, or to decide if there was sufficient credible evidence to support a conviction. Rather, the Law Division determines 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 own independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (quoting State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).
In contrast, we review the Law Division's decision employing the "substantial evidence" rule. State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012). We ask whether the Law Division's findings "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. Once 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.
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.
[Ibid.]
In this case, defendant's argument is based solely on the purported discrepancies in Dewald's testimony and the times recorded prior to the administration of the Alcotest. But we would only disturb such findings if we believe they are "mistaken . . . and so plainly unwarranted that the interests of justice demand intervention and correction . . . ." Johnson, supra, 42 N.J. at 162. And here the purported discrepancies do not affect the key testimony.
The officer, found to be credible by both the municipal court and the Law Division judge, testified unequivocally that he observed defendant for twenty minutes, timed by his wrist watch. We see no reason to disturb that result. Furthermore, "the State is only required to establish that the test subject did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results for a period of at least twenty minutes prior to the administration of the Alcotest." State v. Ugrovicz, 410 N.J. Super. 482, 484-85 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010). Thus the State provided adequate proof that defendant had been observed for the requisite twenty-minute period as timed on the officer's watch, during which defendant did nothing which would compromise the Alcotest results. It was not error to deny the motion to suppress.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION