Opinion
DOCKET NO. A-0706-11T4
05-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT J. STEIN, Defendant-Appellant.
Kam S. Minhas, attorney for appellant. Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Hayden and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4932.
Kam S. Minhas, attorney for appellant.
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Robert J. Stein appeals from a judgment of conviction, after his trial de novo in the Law Division, for driving while intoxicated (DWI), N.J.S.A. 39:4-50, as a third time offender; and careless driving, N.J.S.A. 39:4-97. The Law Division imposed the same sentence as the municipal court: 180 days of incarceration in the Passaic County Jail, ninety of which could be served in an inpatient program; ten years license suspension; installation of an ignition interlock device for the period of his suspension, and one additional year following its completion; forty-eight hours attendance at an Intoxicated Driver's Resource Center; and appropriate fines and penalties. We affirm.
I.
The record discloses the following facts adduced from the trial de novo in the Law Division on the record developed in the municipal court.
On November 15, 2008, at approximately 9:30 p.m., defendant operated a motor vehicle that was involved in an accident on Route 23 in Wayne. At that time, the road was wet from rain. According to defendant, the accident occurred when he tried to stop for a traffic light that was changing from amber to red. Due to the road being wet, his car slid from the right-hand lane and into the left, hitting another vehicle, which was stopped at the light, from behind.
Wayne Police Officer Alexander DeLuccia and Sergeant Andrew Verdon were dispatched to the scene. When they arrived, police officers from neighboring Pequannock Township were already there, talking to defendant. Through his initial investigation, DeLuccia determined that defendant had been driving on Route 23 with his girlfriend, the owner of the vehicle, when he crossed several lanes and struck another vehicle that was stopped at a red light. According to defendant's girlfriend, they were travelling approximately thirty to forty miles per hour when the accident occurred. Both the driver's and passenger's side air bags deployed in defendant's vehicle, stunning and causing cuts to defendant.
DeLuccia observed defendant and noted that his eyes were bloodshot and watery, he was swaying and grasping for support, there was an odor of alcohol emanating from his breath and his speech was slurred. DeLuccia's observations were confirmed by Verdon. However, defendant was calm, cooperative and courteous, and his girlfriend never observed him stumbling or slurring his words. Defendant told the officers that he and his girlfriend were coming from a dinner out. Before dinner, he drank a glass of wine. During dinner, he consumed four beers within two hours, fifteen to twenty minutes before getting into his car. As a result of this information and their observations, the officers decided to administer field sobriety tests.
The officers placed defendant in their vehicle and took him to a nearby parking lot for the administration of the tests. They did so because the area was well-lit, with a flat, paved surface, without gravel or debris. The test began approximately twenty minutes after the officers had initially placed defendant in their vehicle.
Verdon administered the tests while DeLuccia observed. Prior to taking the tests, defendant did not report any injuries or problems he was experiencing to the officers. Verdon first administered the "heel to toe" test, in which he asked defendant to walk with one foot in front of the other in a straight line, touching his heels to his toes. Defendant attempted the test but failed, as he staggered and deviated from the line three times. Verdon next administered the "one-legged stand" test, first demonstrating to defendant how the test had to be performed. Defendant was asked to raise his right foot approximately six inches off the ground, and to hold it for thirty seconds, while counting aloud. Defendant failed the test three times, as he could not hold up his foot for more than ten seconds. The last test was the horizontal gaze nystagmus test (HGN), which defendant also failed as to each eye. As a result, the officers placed defendant under arrest for DWI, N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97.
The officers then transported defendant to police headquarters in Wayne for administration of an Alcotest. However, due to problems with the equipment, they were forced to bring him to State Police Barracks in Totowa to administer a Breathalyzer. DeLuccia, who is a certified Alcotest and Breathalyzer test operator, administered the test following all required procedures. Defendant's two readings indicated a blood alcohol content of 0.17 percent and 0.18 percent, above the legal limit of 0.08 percent. N.J.S.A. 39:4-50(a).
At his municipal trial, defendant, his brother, and an expert, Richard Saferstein, Ph.D. all testified on his behalf. Defendant's girlfriend was also called as a State's witness. Dr. Saferstein challenged the Alcotest results and the field sobriety tests. As to the latter, he believed the tests should not have been given outdoors because the ground was wet. In addition, he opined that if defendant was fatigued or injured by the airbags, the results of the field test could be impacted.
The record did not disclose Dr. Saperstein's area of expertise, but that the parties had "stipulated" to his qualifications before trial.
On December 9, 2010, the municipal court found defendant guilty of DWI, N.J.S.A. 39:4-50, based on the officer's observations, the results of the field sobriety tests and the Breathalyzer results. The municipal court also found defendant guilty of careless driving, N.J.S.A. 39:4-97. The court sentenced defendant, and agreed to a stay if defendant filed a timely appeal.
Defendant appealed to the Law Division. Judge Joseph A. Portelli conducted a de novo trial and on September 30, 2011, also found defendant guilty of driving while intoxicated and careless driving based on the officer's observations and defendant's blood alcohol level. The court imposed the same fines and penalties as the municipal court, and denied a stay.
On appeal, defendant presents the following arguments for our consideration:
POINT I
REASONABLE DOUBT PRECLUDES A CONVICTION FOR AN "OBSERVATION" BASED DWI.
POINT II
THE BREATHALYZER RESULTS CANNOT SUSTAIN A DWI CONVICTION.
A. Because the Municipal Court Improperly Admitted Breathalyzer Documents into Evidence, and the Superior Court did not Find this to be an Error, the N.J.S.A. 39:4-50 Charge Against Mr. Stein Should be Dismissed.
B. "Reasonable Grounds" to Believe Defendant Operated Under the Influence.
C. Ampoule Lot Number not in Evidence in the Record.
D. Breathalyzer Test Administered within a "Reasonable Time."
E. Breathalyzer Properly Operated in Accordance with Accepted Procedures.
F. Breathalyzer in Proper Working Order.
G. RFI Issues.
POINT III
THE STATE'S FAILURE TO COMPLY WITH ITS DISCOVERY OBLIGATIONS MANDATES A DISMISSAL OF ALL CHARGES.
POINT IV
THE STATE'S FAILURE TO PRESEERVE EVIDENCE MANDATES A DISMISSAL OF ALL CHARGES.
We have considered all of defendant's arguments in light of the record and applicable law, and we affirm substantially for the reasons stated by Judge Joseph A. Portelli in his comprehensive oral decision.
II.
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. (quoting State v. Johnson, 42 N.J. 146, 157 (1964)) (alteration in original), as the Law Division judge is not in a position to "observ[e ] the character and demeanor of witnesses and common human experience that are not transmitted by the record," ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). "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).
Furthermore, "[u]nder 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)). In this case, the Law Division judge clearly understood that his role was to make independent findings, as they were ultimately reflected in his oral opinion. We, therefore, defer to those findings. However, no such deference is owed to the Law Division or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts. See State v. Handy, 206 N.J. 39, 45 (2011) ("[A]ppellate review of legal determinations is plenary.").
A.
It is well-established that an officer's subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. See State v. Cryan, 363 N.J. Super. 442, 456-57 (App. Div. 2003) (sustaining DWI conviction based on observations of defendant's bloodshot eyes, hostility and strong odor of alcohol); State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on officer's observation of the defendant's driving without headlights on, inability to perform field sobriety tests, combativeness, swaying and detection of odor of alcohol on the defendant's breath); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001) (sustaining DWI conviction based on officer's observations of watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and defendant's admission to drinking alcohol earlier in the day).
In its review, the Law Division examined the totality of the evidence, and deferred to the municipal court's credibility findings, citing Locurto, supra, and Johnson, supra. Then Judge Portelli correctly stated that "this court can find [defendant] is guilty of driving while intoxicated based on observational evidence alone, and because there is sufficient evidence in the record to prove beyond a reasonable doubt that he is guilty of careless driving[.]" The judge supported his conclusion by reference to our decision in Oliveri, supra, and then found:
In this matter, testimony from the [municipal c]ourt . . . included
observations from the two Wayne Police officers of [defendant's] having trouble standing, swaying, grasping for support, having the odor of alcohol on his breath, slurred speech, bloodshot watery eyes and a flushed face.
Moreover, [defendant] testified that he had consumed four beers over a two hour period, fifteen to twenty minutes prior to driving and a glass of wine before dinner.
The police observations further included that [defendant] did not communicate an injury or inability to perform the field sobriety tests. And that [he] failed to properly complete each of the field sobriety tests which included twice failing the one legged stand test, walking off the line, and staggering on the walk and turn test, and six out of six 'hits' . . . on the HGN test.
. . . .
Such evidence is sufficient to prove beyond a reasonable doubt that [defendant] was operating a motor vehicle while intoxicated.
As to the careless driving charge, Judge Portelli noted the requirements under the statute, N.J.S.A. 39:4-96 (driving "heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property"), and found that the same body of evidence supported defendant's conviction for that offense.
In reaching these conclusions, the court rejected defendant's expert's contentions that the wet road surface or any fatigue or injuries from the air bags could have interfered with defendant's ability to perform the tests to the point that he suffered a "substantial deterioration or diminution of his mental facilities, faculties or physical capabilities[,]" State v. Tamboro, 68 N.J. 414, 421 (1975), especially because defendant never complained of any injuries or inability to perform the tests. We agree.
Because we affirm the Law Division's determination of defendant's guilt based on the officer's observations, we need not address defendant's arguments regarding the admission of his blood alcohol levels into evidence and the Law Division's determination that they were properly admitted and dispositive as to defendant's guilt.
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As noted, an arresting officer's field observations of a defendant's appearance, behavior, breath, and speech may sustain a defendant's DWI conviction. See State v. Kent, 391 N.J. Super. 352, 383-84 (App. Div. 2007). That is the case here: the Law Division's findings as to the officers' observations and credibility are supported by sufficient credible evidence in the record. Johnson, supra, 42 N.J. at 162. Defendant argues the court should not have accepted the field sobriety tests results, for the reasons given by Dr. Saferstein. However, the court's rejection of Dr. Saferstein's opinions as to the possible effects on the field tests of defendant's being fatigued or injured or the ground being wet do not render its conclusions legally defective. Cryan, supra, 363 N.J. Super. at 457.
We discern no reason to disturb the Law Division judge's determination that defendant was guilty of DWI and careless driving beyond a reasonable doubt because we are satisfied that the convictions were supported by the officers' observations of defendant, including his performance on the field sobriety tests.
B.
Judge Portelli also correctly disposed of defendant's arguments based on claimed discovery violations that interfered with his right to a fair trial. In the trial de novo, defendant argued that Wayne did not provide him with the department's phone logs so that he could determine the identity of the Pequannock police who arrived on the scene before the Wayne police. Noting first that "[a] defendant in a drunk driving case is entitled to all relevant materials listed in the eleven categories enumerated in [R]ule 7:7-7B," and relying on our decision in State v. Ford, 240 N.J. Super. 44 (App. Div. 1990), Judge Portelli correctly rejected defendant's argument:
However, unlike discovery in a civil case, information cannot be demanded which merely leads to other information which might be relevant.
Here, [defendant] was not denied his right to a fair trial or his right to properly and fully cross examine the State's witnesses because of the State's failure to preserve phone logs to aid [defendant] in discovering the identity of the Pequannock Police officers. The phone logs of the Wayne Police . . . were not evidence of his guilt or innocence, but were instead information which would merely or possibly lead to other information which might be relevant, such as the identity of the Pequannock Police officers.
. . . [S]uch information is not required to be furnished by the State during discovery.
The judge also addressed defendant's other discovery violation claims relating to the officer's notes and a videotape he demanded from the State. Relying on our decisions in George v. City of Newark, 384 N.J. Super. 232 (App. Div. 2006), and State v. Mustaro, 411 N.J. Super. 91 (App. Div. 2009), the judge correctly rejected these contentions as well, after considering "[o]ne, the bad faith or connivance by the government; two, whether the evidence was sufficiently material to the defense; and three, whether the defendant was prejudiced." George, supra, 384 N.J. Super. at 243 (citing State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d, 723 (1998)). Applying that test, the judge found no evidence of bad faith or connivance, that the notes were destroyed in the ordinary course of business after they had been transcribed into his report, which was given to defendant, and that there was no showing that defendant had been prejudiced by their destruction.
As we noted in George, supra, absent a showing of bad faith "relief should be granted only where there is a showing of manifest prejudice or harm arising from the failure to preserve evidence." Ibid. (quoting Dreher, supra, 302 N.J. Super. at 489 (internal quotation marks omitted)). Judge Portelli correctly determined no such showing was made in this case and he properly rejected defendant's claims.
The judge addressed defendant's claim regarding the video tape in a similar fashion:
The failure of New Jersey police agencies to videotape defendants who are suspected of driving while intoxicated does not constitute a due process violation. . . .
There is no duty on the part of New Jersey police to create evidence by videotaping a suspected drunk driver. Here, when applying the three prong test from the [George, supra,] matter, it is clear that the — [defendant] was not prejudiced by the State's failure to produce roadside notes written by the Wayne Township Police officers.
. . . .
Furthermore, the videotape requested by [defendant] was not a tape of [him] performing the field sobriety test but
rather a tape from the surveillance camera at . . . Wayne Township Police headquarters. Such evidence goes beyond what is required to be produced by the State during the discovery process.
Moreover, the State is under no obligation to produce the tape of a suspected drunk driver performing field sobriety tests, (internal citations omitted).
We agree with the judge's reasoning regarding this alleged discovery violation as well and do not find that it warrants further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION