STATE OF NEW JERSEY v. GAIL BEDNAROVSKY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4566-04T54566-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GAIL BEDNAROVSKY,

Defendant-Appellant.

___________________________

 

Argued March 21, 2006 - Decided April 26, 2006

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Mun. App. 04-060.

Peter H. Lederman argued the cause for

appellant (Lomurro, Davison, Eastman & Munoz,

attorneys; Mr. Lederman, of counsel and on the

brief).

Paula Jordao, Assistant Prosecutor, argued the

cause for respondent (Michael M.

Rubbinaccio, Morris County Prosecutor, attorney;

Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

At about 11:20 p.m. on January 16, 2004, defendant Gail Bednarovsky was driving her white Mercury automobile north on Route 23 in the Borough of Butler. In that area Route 23 has three northbound lanes in addition to a shoulder for emergency stops. Butler Police Officer Colleen Kober was on patrol and traveling behind defendant in the right-hand lane when she saw defendant's car veer completely onto the shoulder and pull back into the right-hand lane without signaling. Officer Kober activated her overhead lights, and defendant again veered onto the shoulder. Kober testified that the defendant was slow to pull over, stopping after about a quarter of a mile. When she approached the driver's side, Kober noted that defendant had trouble rolling down her window and then had difficulty locating her license, registration and insurance card. According to Kober, defendant's speech was slow and slurred, her eyes were bloodshot and watery, and her breath smelled of alcohol. When asked, defendant admitted to having consumed two alcoholic drinks.

Kober then requested defendant to get out of her car in order to perform field sobriety tests on the shoulder of Route 23. At that time, Sergeant Ciro Chimento, Kober's supervisor, arrived at the scene and witnessed defendant perform the tests. According to Chimento, the defendant had trouble getting out of her vehicle, swayed as she walked to the front of her car and leaned on the hood to maintain her balance. Officer Kober then asked defendant to recite the alphabet starting with the letter A, pausing at K and proceeding to Z. Kober stated that defendant failed the test because she skipped more than seven of the twenty-six letters. Chimento corroborated this testimony, adding that defendant's speech was slurred.

The second test was a balance test, requiring defendant to stand on one leg with her hands at her side. Kober testified that defendant tried this test several times but kept putting her foot down to maintain her balance. Kober then asked the defendant to perform a walk-and-turn test, which required walking heel to toe for six steps and then turning around for nine steps. Kober testified that the defendant did not touch her toe to her heel but did walk the number of steps forward and back. Sergeant Chimento added that defendant took long strides and raised her arms to maintain balance and had difficulty walking a straight line.

Officer Kober arrested the defendant and drove her to Butler police headquarters where she was issued summonses for driving while under the influence, N.J.S.A. 39:4-50, refusal to take a breathalyzer test, N.J.S.A. 39:4-50.2, reckless driving, N.J.S.A. 39:4-96, and failure to signal, N.J.S.A. 39:4-126.

Defendant filed a motion to suppress on October 26, 2004, contending that there was a lack of reasonable and articulable suspicion to stop her vehicle and a lack of probable cause to arrest her for driving while intoxicated. Hearings were held on November 4 and December 6, 2004, at the conclusion of which the Butler municipal court judge denied defendant's motion in its entirety. Defendant then entered a conditional guilty plea to N.J.S.A. 39:4-50, and the other summonses were dismissed. Since this was defendant's third conviction for violation of N.J.S.A. 39:4-50.2, she received a sentence of ninety days to be served in an in-patient facility, as well as suspension of her driver's license for ten years and other related penalties. A notice of appeal to the Law Division was filed on December 23, 2004, and defendant's sentence was stayed with the consent of the Morris County prosecutor pending appeal.

On April 22, 2005, a trial de novo on the record was conducted by Judge Salem V. Ahto. He denied defendant's motion to suppress, affirmed the convictions and imposed the same sentence. In the course of his oral opinion, Judge Ahto considered the trial testimony of State Police Officer Luigi DiCairano that while the administration of the field sobriety tests did not comply with National Highway Traffic Safety Administration (NHTSA) standards, there was no requirement for use of the NHTSA tests for purposes of making an arrest. Judge Ahto found sufficient evidence of probable cause to stop the vehicle, request performance of roadside tests and make an arrest for driving while intoxicated.

On appeal defendant makes the following arguments for our consideration:

POINT I - THE FIELD SOBRIETY TESTS PERFORMED

BY OFFICER KOBER LACKED ANY RELIABILITY AND,

THEREFORE, CANNOT BE USED TO ESTABLISH PROBABLE CAUSE FOR DEFENDANT'S ARREST.

POINT II - THE FIELD SOBRIETY TESTS PERFORMED BY OFFICER KOBER ALSO LACKED ANY RELIABILITY BASED UPON HER LACK OF EXPERIENCE AND TRAINING.

POINT III - THE TESTIMONY OF OFFICER KOBER AND SERGEANT CHIMENTO WAS SO EVASIVE AND FULL OF CONTRADICTIONS THAT IT CANNOT BE REASONABLY RELIED UPON.

POINT IV - THE STATE FAILED TO MEET ITS BURDEN OF PROVING PROBABLE CAUSE TO JUSTIFY THE DEFENDANT'S ARREST.

POINT IV - THE LOWER COURT'S FINDINGS WERE

UNREASONABLE THEREBY JUSTIFYING REVERSAL OF

DEFENDANT'S CONVICTION.

After careful consideration of the record, we determine that the arguments made by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

Our proper scope of review in this case is to determine whether there was sufficient credible evidence present in the record to uphold the findings of the Law Division judge. State v. Johnson, 42 N.J. 146, 162 (1964). We may not weigh the evidence, assess the credibility of the witnesses or make conclusions from the evidence. State v. Barone, 147 N.J. 599, 615 (1997). Deference to credibility and factual findings is especially compelling where municipal court and superior court judges have concurrent judgments on purely factual issues. State v. Locurto, 157 N.J. 463, 474 (1999).

Here the issue is one of probable cause, which was best defined as follows:

[Probable cause] is an elusive concept, incapable of being precisely defined. It is more than mere naked suspicion, but less than legal evidence necessary to convict. It is not a technical concept but rather one having to do with the factual and practical considerations of everyday life upon which reasonable men, not constitutional lawyers, act. It has been described by this Court as a well-grounded suspicion that a crime has been or is being committed.

[State v. Waltz, 61 N.J. 83, 87 (1972) (citations omitted).]

We find that there is reasonable credible evidence in the record to meet the probable cause standard to make an arrest. Even without the field sobriety tests, the officer had enough probable cause to believe that defendant was operating her vehicle under the influence of alcohol. Her driving was erratic; she did not stop immediately when the officer signaled, but again veered onto the shoulder of the highway. The officer observed bloodshot eyes, slurred speech, slow movements and difficulties in maintaining her balance. These common signs of intoxication in addition to detection of a strong odor of alcohol on defendant's breath and her admission to consuming alcoholic beverages were sufficient to constitute ample basis for a determination of probable cause to satisfy an arrest for driving while under the influence of alcohol. State v. Moskal, 246 N.J. Super. 12, 15-16 (1991); State v. George, 257 N.J. Super. 493, 496-97 (App. Div. 1992). See also State v. Pavao, 239 N.J. Super. 206, 209-10 (App. Div.), certif. denied, 122 N.J. 138, cert. denied, 498 U.S. 898, 111 S. Ct. 251, 112 L. Ed. 2d 209 (1990).

 
Affirmed.

At oral argument counsel for defendant conceded that there was reasonable suspicion to stop defendant's motor vehicle based on the testimony of the arresting officer. Therefore, we need not address that issue.

(continued)

(continued)

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A-4566-04T5

April 26, 2006