STATE OF NEW JERSEY v. CHARLES R. DUFFY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2135-05T32135-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES R. DUFFY,

Defendant-Appellant.

_________________________________________________

 

Argued August 29, 2006 - Decided September 7, 2006

Before Judges Payne and Gilroy.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Docket No. 5761.

John Menzel argued the cause for

appellant.

Steven J. Kaflowitz, Assistant

Prosecutor, argued the cause for

respondent (Theodore J. Romankow,

Union County Prosecutor, attorney;

Mr. Kaflowitz, of counsel and on

the brief).

PER CURIAM

Defendant Charles Duffy appeals from his conviction for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50 as affirmed on appeal following a trial de novo in the Superior Court on the record made in the municipal court. On appeal, Duffy argues that the evidence did not establish beyond a reasonable doubt that he was under the influence of alcohol at the time of his arrest. He also argues that the municipal judge erred in denying his request for a jury trial. We affirm.

In reaching a decision in the matter, we are mindful of the narrow scope of our review as articulated in State v. Johnson, 42 N.J. 146, 160-61 (1964) and State v. Locurto, 157 N.J. 463, 474 (1999) and the deference that we must accord to the trial court's findings of fact and credibility determinations. Under the standards articulated in those decisions, we may not weigh the evidence anew or make independent findings of fact. Rather, we may only determine whether there is adequate evidence in the record to support the judgment. Johnson, supra, 42 N.J. at 161. We find that such evidence exists.

The record of this case establishes that defendant Duffy, accompanied by his seven-month-old Rottweiler, entered a liquor store in New Providence owned by Stanley Dunn at approximately 4:30 on January 7, 2005. Shortly after his entry and while talking to Dunn, a long-time acquaintance and former employer, Duffy fell backward into a rack of wine bottles, upsetting the rack and breaking a number of the bottles. Duffy received a laceration on his hand as a result of the fall. Following the fall, Dunn requested that Duffy place the dog in Duffy's Jeep and return so that his hand could be washed and inspected. Duffy did so, and upon his return, offered to assist in cleaning up the damage. Dunn, regarding Duffy to be intoxicated, refused the offer and additionally advised Duffy to walk, not drive to his home, located nearby. Dunn testified that at the time, Duffy was unsteady on his feet and that his speech was unclear. "He was mumbling . . . he was repeating things over and over and over and over." Dunn testified further that as a liquor store operator, he had to determine whether customers were too intoxicated to purchase alcohol. He stated that he would not have sold alcohol to Duffy. Dunn additionally recounted Duffy's admission, made at the time or on the following day, that he had consumed four twelve-ounce beers.

After Duffy left the liquor store, Michael Ambrose, an emergency medical technician with three years of experience who worked in the adjoining ski shop, was requested to examine Duffy's injury. Ambrose found Duffy, contrary to Dunn's instruction, sitting in his Jeep with the engine running. Ambrose examined the wound, which he found to be minor, and bandaged it. Because he also regarded Duffy to be intoxicated, he too instructed Duffy to walk home, and offered to escort him. Although Duffy then left on foot, he did not go home, but instead roamed the town and, within forty-five minutes he returned to the area of the liquor store, seemingly in a more intoxicated state. When Duffy was observed by Ambrose to be walking toward his Jeep, Ambrose called the police and advised them that a possibly intoxicated male was attempting to drive.

Police officers Opalewski and Wilson arrived shortly thereafter. They observed Duffy to be backing his Jeep from its parking spot. He was quickly advised to stop, which he did. Upon exiting the Jeep, the odor of alcohol was detected on Duffy's breath. Thereafter, sobriety tests were conducted, consisting of in-line heel to toe walking and an exercise in which Duffy was instructed to touch, in turn, each finger of his dominant, uninjured, hand with the thumb of that hand and to count off the fingers when touched. Duffy was unable to keep his balance. Additionally, he did not follow the instructions given to him, taking more steps than requested in the heel to toe exercise and failing to count off his fingers properly. Officer Opalewski testified that at the time defendant's face was flushed and his eyes appeared drowsy and bloodshot. Following administration of Miranda warnings, defendant admitted to drinking three beers and a portion of a fourth.

At the conclusion of the testimony, the municipal court judge found Duffy to be guilty of the offense charged. In reaching that conclusion, the judge took into consideration the fact that Duffy was disabled by knee, back and shoulder conditions, and that his balance when taking the police's sobriety tests could have been impaired as a result. However, the judge noted that not only did Duffy fail the physical portions of the tests that were administered to him, he also failed to follow the police's instructions. Additionally, the judge considered Duffy's testimony that his dog had caused Duffy's liquor store fall, but found it incredible, since Duffy had fallen backward at a time when the dog was sitting in front of him. Although the judge discounted much of the evidence against Duffy when standing alone as insufficient to demonstrate Duffy's intoxication, he found the evidence as a whole to be sufficient to establish, beyond a reasonable doubt, the offense charged. In this regard, the judge stated that he was particularly impressed by the testimony of the liquor store owner, Dunn, whom he characterized as fair and impartial, that he instructed Duffy not to drive and would not have sold him liquor, finding that Dunn's business experience and long-term acquaintance with Duffy made him particularly qualified to assess Duffy's physical condition and degree of intoxication. The judge observed:

If there's anybody that can judge somebody's level of intoxication it's someone who is in the liquor industry and who has a burden not to sell to people that are intoxicated and quite clearly and unequivocally says to this court I would not have sold to the defendant that day because of his level of intoxication.

I think that's extremely significant from an independent, unbiased witness who is a friend of the defendant. And what does he say to the defendant? I don't want you driving your car, I want you to go home, get sobered up and then come back and pick up your car later. If you come back I'm going to call the police. That's what he says to him.

Additionally, the judge noted that Dunn's testimony was fully corroborated by emergency medical technician Ambrose, who likewise instructed Duffy not to drive and threatened to call the police were he to do so.

On appeal to the Superior Court, the reviewing judge concurred with the municipal court judge in finding Duffy guilty of driving while intoxicated and imposed a sentence upon him from which no appeal has been taken.

In the present appeal, Duffy challenges the evidence against him and argues that it is insufficient to establish his guilt, particularly in light of evidence of his physical impairments, which may have wrongly suggested intoxication that did not exist. However, our careful review of the record satisfies us that the trial courts adequately considered those impairments when reaching their conclusions, which were premised upon substantial credible evidence in the record.

Additionally, we reject Duffy's argument that he was entitled to a jury trial, finding the Court's decision in State v. Hamm, 121 N.J. 109 (1990) to be controlling in this regard.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-2135-05T3

September 7, 2006