STATE OF NEW JERSEY v. GERALD ELSTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5818-04T35818-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

GERALD ELSTON,

Defendant-Appellant.

__________________________________

 

Submitted: December 12, 2005 - Decided:

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, No. 32-12-04.

Debra Lynn Nicholson, attorney for appellant (Daniel A. Colfax, of counsel and on the brief).

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Robin M. Lawrie, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gerald Elston appeals from his conviction of driving while intoxicated contrary to N.J.S.A. 39:4-50. This is his fourth conviction; therefore, his license has been suspended for ten years. He was also sentenced to 180 days in the county jail, required to attend twelve hours at the IDRC, and fined $1000. All of the other appropriate costs, assessments, penalties and surcharges were also imposed.

On appeal, defendant raises the following arguments:

I. THE COURT ERRED IN FINDING PROBABLE CAUSE FOR INITIATION OF "STOP" IN THIS CASE AND THE RESULTING QUESTIONING AND TESTING SHOULD BE SUPPRESSED, NECESSITATING THE DISMISSAL OF THE CHARGE IN THIS CASE.

II. THE LOWER COURT ERRED IN ITS DETERMINATION OF GUILT AS THE EVIDENCE DID NOT RISE TO THE LEVEL OF STANDARD "BEYOND A REASONABLE DOUBT", REQUIRING THE FINDING TO BE REVERSED AND THE IMPOSITION OF A "NOT GUILTY" DETERMINATION AT THIS TIME.

On the evening of May 24, 2004, Trooper James R. Harrison responded to a domestic violence complaint at defendant's residence in Wantage Township. Upon his arrival, Trooper Harrison noticed that defendant was sitting on a farm tractor towing a vehicle chassis. The tractor's engine was running. Trooper Harrison parked his car and walked up to defendant, who remained on the farm tractor. Trooper Harrison asked defendant to get off the tractor so he could speak to defendant regarding the domestic violence report. Defendant responded that he was going to put the tractor away first. Defendant drove the tractor and its tow thirty feet into a shed. The trooper followed on foot.

Trooper Harrison again asked defendant to dismount from the tractor. After having some difficulty dismounting, defendant moved slowly and walked with difficulty. Trooper Harrison also noticed the smell of alcohol on defendant's breath.

In due course, Trooper Harrison determined that neither defendant nor his wife were injured and there was no substance to the domestic violence report. On the other hand, based on the trooper's observations of defendant's operation of the tractor, his impaired movements, and the odor of alcohol, Trooper Harrison contacted dispatch and informed them that he was changing his investigation from domestic violence to a driving while intoxicated investigation. Then, the trooper positioned his car so that the mobile video camera could record any field sobriety tests.

Trooper Harrison asked defendant whether he had been drinking alcohol, and defendant responded that he had consumed a couple of beers that afternoon. The trooper administered the alphabet test (reciting from D to T), and the numbers test (reciting from 66 to 88). Defendant slurred many of the letters, and missed letters and numbers. During the numbers test, defendant stated that he was illiterate.

Trooper Harrison instructed defendant on the walk-and-turn/heel-to-toe test, while defendant "shuffled, went back and forth[,] [s]ort of sideways[,] [s]tanding there[,] [s]eemed somewhat confused." Defendant then began the test before Trooper Harrison had finished the instructions, stopped in the middle and indicated that he was having problems with his legs. The trooper discontinued the test. Next, Trooper Harrison instructed defendant on the stand-on-one-leg test, and defendant indicated that he had a problem with his right leg and his right calf. The trooper told defendant to use his left leg. Defendant did and he hopped around in a circle. Defendant never indicated to Trooper Harrison that he had any problem with his left leg.

Based on defendant's performance on the tests, Trooper Harrison arrested defendant, charged him with driving while intoxicated, contrary to N.J.S.A. 39:4-50 and refusal to submit to a breathalyzer test, and read defendant his Miranda rights. Defendant asserts that once the trooper determined that the domestic violence complaint was baseless, the trooper was required to leave the premises. He also contends that the observations by the trooper did not provide a reasonable, articulable suspicion that defendant operated the tractor under the influence of alcohol. We disagree.

Our review of factual findings of a judge sitting without a jury is extremely limited. An appellate tribunal should defer to a lower court's credibility determinations that are founded on the ability to assess demeanor. State v. Locurto, 157 N.J. 463, 474 (1999). Our task is to determine whether the findings could reasonably have been reached based on sufficient credible evidence in the record. State v. Johnson, 42 N.J. 146, 162 (1964). Our task is complete, once we are satisfied that the findings of fact meet this criterion. Ibid.

Here, the Law Division judge and the municipal court judge found that the trooper began to suspect that defendant may be intoxicated while the domestic violence investigation was underway. Initially, defendant deferred any conversation with the trooper regarding the alleged domestic violence incident until he put the tractor in the barn. When defendant attempted to dismount and before he responded to any questions, the trooper began to make observations of defendant's impairment. In short, at the time the trooper commenced his observation of defendant, the domestic violence investigation was not concluded; therefore, the trooper's presence on defendant's property was entirely proper.

We are also satisfied that the trooper had a reasonable and articulable suspicion to continue his investigation and effectuate a "stop" of defendant. A "stop" does not mean a physical stop, but instead means a "restraint of movement." United States v. Robinson, 535 F.2d 881, 883 n.2 (5th Cir. 1976). While probable cause will certainly support a stop, probable cause is not required. State v. Golotta, 178 N.J. 205, 212-13 (2003). A stop requires only a reasonable, articulable suspicion that a motor vehicle violation is or has been committed. Ibid. The trooper's observations, including observations of defendant's driving, his unstable descent from the tractor, and the smell of alcohol, supplied more than a reasonable, articulable suspicion that defendant was operating a motor vehicle while under the influence of alcohol.

We also affirm the Law Division judge's finding that the State presented sufficient evidence to allow him to find that defendant operated a motor vehicle while intoxicated. The State carries the burden of proving beyond a reasonable doubt that a defendant is guilty of driving while intoxicated. State v. Emery, 27 N.J. 348, 353 (1958); State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984). The offense may be proved by either 1) proof of a defendant's physical condition, or 2) 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. 45 (2004). Proof by the latter constitutes a per se violation of the statute and a finding of guilt is proper in that instance. The former typically consists of proof by testimony of the police officer's observations. State v. Weber, 220 N.J. Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987). Because no breathalyzer test was administered in this case, the determination as to whether defendant was guilty of driving while intoxicated beyond a reasonable doubt is limited to proof of defendant's physical condition. A police officer is permitted to give his lay opinion as to whether a defendant is under the influence of alcohol. State v. Irelan, 375 N.J. Super. 100, 106-07 (App. Div. 2005); Weber, supra, 220 N.J. Super. at 423. Additionally, the trial court may rely on direct and circumstantial evidence to determine whether the elements of the offense are met. Emery, supra, 27 N.J. at 356.

N.J.S.A. 39:4-50 "does not require as a prerequisite to conviction that the accused be absolutely 'drunk,' in the sense of being sodden with alcohol." Id. at 355. This court has recently found a police officer's observations of a motorist moments after she drove into a parking lot, including signs of intoxication and an admission of consumption of alcohol, sufficient to support a conviction for operating a motor vehicle under the influence. State v. Ebert, 377 N.J. Super. 1, 4-5, 10-11 (App. Div. 2005).

In this case, defendant's argument that there was reasonable doubt is based on the testimony of two witnesses, Roger Page and Arthur Bastian. Significantly, the municipal court and Law Division judges weighed the credibility of these witnesses and found it wanting. Page admitted that he had no idea whether defendant consumed alcohol before he arrived, and that defendant consumed two beers in the short period that Mr. Page was at his residence. Bastian, defendant's employer, provided evidence of injury but did not corroborate the asserted severity of defendant's on-the-job injury. The Law Division judge also reviewed the videotape and found that it corroborated the trooper's observations.

This court must defer to the trial court's findings on credibility because the trial courts are in a better position to observe the character and demeanor of witnesses. Id. at 8. Further, deference is especially compelling where the "Municipal Court and the Superior Court 'have entered concurrent judgments on purely factual issues,' . . . [and an appellate court should] not disturb those findings 'absent a very obvious and exceptional showing of error.'" Ibid. (quoting Locurto, supra, 157 N.J. at 474).

 
The judgment of conviction is, therefore, affirmed.

Affirmed.

The refusal charge was dismissed because defendant had not operated the tractor on a public road. N.J.S.A. 39:4-50.4a.

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

We remind the Law Division judge that his function on an appeal from a municipal court conviction is to conduct a de novo trial on the record compiled in the municipal court accompanied by the requisite finding of fact derived from the record. R. 3:23-8(a); State v. States, 44 N.J. 285, 293 (1965). The Law Division judge then renders a judgment rather than an affirmance of the municipal court decision. R. 3:23-8(e). We do not remand for findings because the oral opinion rendered by the Law Division judge contains sufficient findings of fact and the ultimate finding that defendant operated the tractor while intoxicated is supported beyond a reasonable doubt.

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A-5818-04T3

 

January 5, 2006