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State v. Walker-Cinco

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 5, 2016
DOCKET NO. A-0652-15T3 (App. Div. Dec. 5, 2016)

Opinion

DOCKET NO. A-0652-15T3

12-05-2016

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JESSICA C. WALKER-CINCO, Defendant-Appellant.

John R. Klotz argued the cause for appellant. Tom Dominic Osadnik, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Osadnik, of counsel and on the brief).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Espinosa and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 6051. John R. Klotz argued the cause for appellant. Tom Dominic Osadnik, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Osadnik, of counsel and on the brief). PER CURIAM

Defendant appeals from her conviction for driving while impaired (DWI), N.J.S.A. 39:4-50, and presents the following arguments for our consideration:

POINT I

THE CONVICTION MUST BE REVERSED AND A JUDGMENT OF ACQUITTAL ENTERED SINCE THE STATE FAILED TO PROVE THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT IN VIOLATITON [SIC] OF THE FEDERAL AND STATE CONSTITUTIONS.

POINT II

THE CONVICTION MUST BE REVERSED AND A JUDGMENT OF ACQUITTAL ENTERED OR A NEW TRIAL GRANTED INASMUCH AS BOTH COURTS BELOW VIOLATED THE MANDATE OF STATE V. DORIGUZZI BY CONSIDERING "HGN" EVIDENCE.

334 N.J. Super. 530 (App. Div. 2000).

We are unpersuaded by these arguments and affirm.

Guilt of N.J.S.A. 39:4-50 "is proved through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 404 (2004). In this case, the results of the Alcotest administered to defendant following her arrest were deemed inadmissible. As a result, the State was left to rely on its proofs of defendant's physical condition.

It is undisputed that the motor vehicle stop, initiated after defendant was observed driving fifteen miles above the speed limit and momentarily straddling the traffic lanes, was lawful. The arresting officer, Robert J. Sova, Jr., of the Wayne Police Department, testified he detected a strong odor of alcohol coming from defendant's vehicle and that she fumbled in producing her credentials in response to his request. The stop occurred shortly before 9:00 p.m. Defendant admitted she consumed a glass of wine with dinner. Although Officer Sova refrained from describing defendant as argumentative, he testified she "constantly interrupt[ed]" him with references to difficulties she was experiencing in her personal life.

Officer Sova testified regarding defendant's performance on field sobriety tests:

The first test required her to place her thumb to each finger and count 1-2-3-4 while doing so three times. Officer Sova stated defendant skipped a finger on two occasions and performed the test more than the three times she was instructed to perform.

The second test required defendant to say the alphabet without singing from the letter D to the letter X. Officer Sova stated she attempted the test three times with the following results: the first time she recited from D to Z; the second time she recited from D to F and attempted to excuse herself by saying she thought he said F instead of X, and the third time she recited the alphabet from D to Z again.

Officer Sova then administered the HGN test and testified over defendant's objection that there was "a lack of smooth pursuit" in both of defendant's eyes.

The HGN or horizontal gaze nystagmus test, which consists of an officer holding a stimulus in front of a suspect's eyes and moving it from side-to-side, is used to detect nystagmus, which is defined as the involuntary jerking of the eye. State v. Doriguzzi, 334 N.J. Super. 530, 534 (App. Div. 2000).

Officer Sova demonstrated how to perform the "walk and turn" test to defendant. She lost her balance while he was explaining the test to her and did not perform the test as instructed. Officer Sova explained that defendant failed to touch heel to toe at any time during the test and brought her arms more than six inches from her body while taking the test.

The final test was the one-leg stand test. Again, Officer Sova demonstrated how to perform the test and instructed defendant that she was to raise one foot approximately six inches off the ground, keep her arms at her side and begin counting from one-thousand-one from the time she is told to start until she is told to stop. Officer Sova testified defendant began counting at one-thousand two and then went back to one-thousand two and resumed counting. She raised her arms away from her body for balance and put her foot down on the count of one-thousand nine, before the thirty second period elapsed.

Officer Sova testified that during the course of his six-year career, he had been involved in approximately thirty DWI stops. He opined, based upon his observations of defendant's driving, her performance on field sobriety tests, his conversation with her and the odor of alcohol, that defendant was impaired and unable to drive a motor vehicle.

The municipal court judge found Officer Sova's testimony "very credible." In his review of the findings, he noted defendant's failures to perform as instructed on the various field sobriety test. He had this to say about the HGN test:

The judge also stated he had no reason to doubt defendant's testimony, which was limited to a discrete issue, that she had a tongue piercing in her mouth at the time of her arrest. --------

[Officer Sova] also testified briefly about the . . . HGN test and indicated he was certified to conduct the test. He observed four clues out of six. That's just one factor or indicia I don't give great weight to the HGN test, right, though.

The municipal court judge found Officer Sova's testimony regarding defendant's physical condition to be sufficient proof to support a conviction for DWI. On appeal, the Law Division judge concurred following a trial de novo. We agree that Officer Sova's testimony provided the requisite proof beyond a reasonable doubt of defendant's guilt. See State v. Kuropchak, 221 N.J. 368, 382 (2015). Moreover, the brief testimony regarding the HGN test does not undermine that result, particularly in light of the fact that the municipal court judge explicitly minimized its relevance.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Walker-Cinco

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 5, 2016
DOCKET NO. A-0652-15T3 (App. Div. Dec. 5, 2016)
Case details for

State v. Walker-Cinco

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. JESSICA C. WALKER-CINCO…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Dec 5, 2016

Citations

DOCKET NO. A-0652-15T3 (App. Div. Dec. 5, 2016)