STATE OF NEW JERSEY v. DANIEL BECKMANN

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2751-05T32751-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL BECKMANN,

Defendant-Appellant.

__________________________________

 

Submitted November 28, 2007 - Decided

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2005-068.

Daniel Beckmann, appellant pro se.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal stems from defendant Daniel Beckman's conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, in the Fairfield Municipal Court and later, upon de novo review, in the Law Division. Defendant was ordered to pay a $1,000 fine, $39 in court costs, a $50 Violent Crimes Compensation Board (VCCB) penalty, a $75 Safe Neighborhood Services Fund (SNSF) penalty, and a $200 DWI fund surcharge. In addition, because the conviction represented defendant's third DWI violation, defendant was sentenced to a 180-day custodial sentence along with a ten-year revocation of his driving and registration privileges. The custodial sentence was stayed pending appeal. We affirm.

The charges against defendant arose out of an incident that occurred on April 16, 2004 in Cedar Grove. Defendant was initially tried and convicted of DWI and speeding in Cedar Grove Municipal Court. Defendant appealed to the Law Division, where his convictions were reversed and the matter remanded to municipal court for a new trial.

The new trial was conducted before another judge in the Fairfield Municipal Court. At trial, the evidence disclosed that on April 16, 2004, Officer Mark Reed, while traveling north on Route 23, observed defendant speeding in the opposite direction. Reed made a U-turn and proceeded after defendant. The officer activated his lights and signaled defendant to stop. Defendant did not stop but continued driving until he turned into the driveway of a home located at 9 Donato Drive. Reed, who had remained in pursuit, stopped his vehicle behind defendant's vehicle, exited his car, and approached defendant, who was still seated in the car. Reed asked defendant to produce his credentials and observed that defendant's face was flushed, his eyes appeared watery and bloodshot, and his eyelids were droopy. Defendant exhibited difficulty retrieving his credentials and, in response to Reed's inquiry as to where defendant had come from, defendant indicated that he was coming from the 7-Eleven. At that point, Reed detected a strong odor of alcohol emanating from defendant's breath. Reed also observed that defendant's speech was a little slow and slurred and asked defendant whether he had been drinking. Defendant responded that he had consumed one drink. Defendant was then asked to exit his vehicle. Defendant initially questioned Reed's authority, since defendant was in a private driveway, but he eventually exited his vehicle and, at Reed's request, attempted to perform a number of field sobriety tests, which Reed testified defendant was unable to perform. Specifically, defendant failed (1) all aspects of the horizontal gaze nystagmus (HGN) test, which measured the involuntary movements of his eyes; (2) the alphabet test because he could not properly recite the alphabet beginning with the letter C and going forward; (3) the walk-and-turn test because he started the test before being directed to do so, staggered and walked in a rigid manner, and used his arms to maintain balance rather than leaving them at his sides as instructed; and (4) the one-leg-stand test because he could not stand on one leg and simultaneously count to thirty.

As a result of Reed's observations and defendant's inability to satisfactorily perform the field sobriety tests, Reed concluded that defendant was operating his motor vehicle while under the influence. He took defendant into custody, advised him of his Miranda rights, which defendant acknowledged, placed defendant in the rear of his vehicle, and then transported him to police headquarters. Reed testified that en route to the police station, the odor of alcohol in his vehicle was strong.

Once Reed arrived at the Cedar Grove Police Department, Lieutenant Gary Campagna, the certified breathalyzer operator on duty, was unable to administer the breathalyzer test to defendant because the machine malfunctioned. Campagna obtained permission to utilize the Verona Police Department's breathalyzer machine and transported defendant to the Verona Police Department where the test was administered and yielded readings of 0.13 percent and 0.12 percent blood alcohol content (BAC). Defendant told Campagna that he had taken Zantac for his stomach earlier in the day at lunchtime. Defendant also admitted to having one double vodka and 7-Up around 7:30 p.m. that evening. Defendant was issued two summonses, one for speeding, N.J.S.A. 39:4-98, and one for driving while under the influence of alcohol, N.J.S.A. 39:4-50.

At trial, defendant's expert, Dr. Richard Saferstein, testified that the test results were unreliable because the officers did not follow protocol by continuously observing defendant for twenty minutes prior to administering the tests. Dr. Saferstein testified that the observation period ensures that the individual taking the test has not had any food or gum and has not belched alcohol into his mouth, all factors that could compromise the test results. Additionally, Dr. Saferstein testified that the operability of the breathalyzer machine, at the time the test was administered, was also in doubt because the machine malfunctioned when it was tested two months later, on June 16, 2004.

Defendant testified that at the time of his arrest, he was suffering from heartburn, which had caused a burping problem, as well as cold and flu symptoms. He told Reed that he was taking Zantac and Benadryl. Defendant also testified that he took only three sips of the vodka and 7-Up drink that he had made for himself at his friend's home that evening. Defendant explained that he was unable to recite the alphabet from the letter C going forward because he was used to reciting the alphabet by beginning with the letter A. He also admitted that he had difficulty placing one foot in front of the other.

The municipal judge found defendant guilty of both speeding and driving while intoxicated. The judge determined that defendant's testimony that he had been burping and belching while in police custody prior to the breathalyzer test being administered lacked credibility. The judge was satisfied that the State proved, beyond a reasonable doubt, both by observation and by the breathalyzer test results, that defendant operated his vehicle while under the influence of alcohol. Defendant appealed his DWI conviction to the Law Division. Following a de novo review of the record, the Law Division judge found defendant guilty of DWI:

Now, the issues. Defendant's arguing -- and he argues this through -- he argues it today in court, it's in his brief. And, through his expert, he's arguing that the results of the breathalyzer readings were not reliable.

For a number of reasons, he argues that the machine was not operating properly because three months after the fact there was a question about the operability of the machine. In addition, he argues -- and this is the thrust of the argument -- that the operator did not follow the alleged protocol of a mandated observation or strict observation of 20 minutes prior to administering the tests.

. . . .

As I indicated, the testimony established that the defendant was in police custody for -- by my calculation, an hour and 10 minutes, and while -- was in the presence of Trooper Re[e]d and that there was no ingestion of alcohol 20 minutes prior to the administering of the tests.

So, I don't see that [State v. Downie, 117 N.J. 450, cert. denied, 498 U.S. 819, 111 S. Ct. 63, 112 L. Ed. 2d 38 (1990)] is applicable in this case. I find that the breathalyzer was properly administered by the operator. In fact, as we know, the machine in Cedar Grove was not working. The operator had to stop the process, had to stop his attempt to administer the tests, and . . . went to Verona where they had an operable machine.

I find that Lieutenant C[a]mpagna properly administered the tests, that he properly went through the checklist, painstakingly did every step required on the checklist. If there were any problems with the machine, it would have been indicated. He would not have been able to proceed with the tests. And that was noted by the [j]udge below.

Number two, we have . . . we know that the defendant was in custody for over an hour and 10 minutes. So, we know there was no ingestion of alcohol within 20 minutes prior to administering the test.

The tests, as I indicated, rendered results of .12 and .13 which, under the law, is a per se violation of the statute.

Now, even if I were to accept the defendant's argument, a per se violation of [N.J.S.A.] 39:4-50, even if I were to accept the defendant's argument that, for whatever reason, the breathalyzer tests were not valid and we were to discount them, I find that the evidence presented at trial is such that the State even without the breathalyzer tests has shown beyond a reasonable doubt that this defendant was driving while intoxicated and that he violated [N.J.S.A.] 39:4-50 based upon the observations of Trooper Re[e]d and Lieutenant C[a]mpagna as to his condition and demeanor that night and as to his failing the field sobriety tests.

The present appeal followed. As best we can glean from defendant's brief, on appeal, defendant contends (1) he was set up by Cedar Grove Police, specifically Officer Reed and Lieutenant Campagna; (2) the hospital records from his admission to Mountainside Hospital after his arrest were never admitted into evidence and those records would demonstrate that he was suffering from acid reflux at the time he was arrested for DWI; (3) Lieutenant Campagna had a major conflict of interest due to an earlier incident involving defendant and defendant's friend, who suffered a seizure; (4) Cedar Grove Police failed to surrender video tapes of his arrest, indicative of a cover-up; (5) the Verona Police failed to turn over video tapes that show he "blew a 'O' at Cedar Grove"; (6) his attorney did not call two of his friends as witnesses; (7) police failed to continuously observe him for at least twenty minutes prior to administering the breathalyzer test; (8) the breathalyzer machine was inoperable, as evidenced by the inspection report prepared two months after the test was administered to him; (9) the police exhibited prejudice towards him; and (10) he was not speeding.

We have considered the contentions raised in light of the record and the applicable law. We are convinced they are of insufficient merit to warrant full discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following.

Defendant's claims that (1) he was set up, (2) there were presumably exculpatory video tapes that were missing, (3) there was a major conflict of interest on the part of Lieutenant Campagna, (4) and the police exhibited prejudice towards him, were never raised during the municipal court proceedings, nor were these contentions advanced before the Law Division. As for his claim that he was not speeding, defendant did not appeal the speeding conviction to the Law Division. We therefore decline to consider these issues in this appeal. It is well settled that an appellate court will decline to consider issues not presented below unless the issues raised for the first time on appeal address the jurisdiction of the trial court or concern matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citing Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). We find no jurisdictional or public interest issues implicated under this record.

Further, although defendant testified that at the time of his arrest, he was burping right in front of Reed, that he told the officer he was "feeling fluish" and "lousy," the municipal court judge found the testimony self-serving and lacking in credibility. The Law Division judge deferred to those findings, noting that the record revealed inconsistencies in defendant's testimony, while the testimony of Reed and Campagna was "consistent, straightforward, and there was no evidence of bias." See State v. Locurto, 157 N.J. 463, 472-74 (1999). (Law Division judge should accord deference to the credibility findings of the municipal court judge.)

As for the breathalyzer test, in Downie, supra, 117 N.J. at 455-56, 469, the Court noted that "[f]or the breathalyzer to give readings that can be used with confidence, the operator must be sure that at least twenty minutes have expired since the last ingestion of alcohol to avoid the presence of 'mouth' alcohol, which can give a falsely high reading." While Campagna did not directly observe defendant for at least twenty minutes before administering the test, the record established that after defendant was arrested, he remained in police custody for more than an hour before the test was administered. There is nothing to suggest that defendant ingested more alcohol or had the opportunity to do so, eliminating, in our view, any possibility that defendant managed, deliberately or inadvertently, to taint the results of the test.

Likewise, as to the purported malfunctioning of the machine at the time the test was administered to defendant, Dr. Saferstein acknowledged that if Campagna performed the requisite temperature tests and operated the machine properly, this would indicate that the machine operated properly at the time the test was administered to defendant. The municipal judge noted that based upon the evidence, the malfunction "could have occurred at any time." He noted further that Dr. Saferstein could not determine when the malfunction occurred. Moreover, the municipal judge concluded that the "existence of this malfunction would have made adherence to the checklist impossible." The municipal judge also found that Campagna "painstakingly" went through the appropriate steps before performing the test. The Law Division judge deferred to those findings, noting that the "[j]udge below . . . had the opportunity to actually observe the witnesses, observe their demeanor at the time of trial. And that's under State v. Johnson, 42 N.J. 146 (1964)." We are satisfied that there is substantial credible evidence in the record to support the Law Division's determination and we perceive no basis to disturb these findings. Johnson, supra, 42 N.J. at 162.

Finally, in so far as defendant claims that his hospital records should have been introduced and his two friends called as witnesses, such claims generally implicate matters outside the record. Here, however, we doubt that defendant's medical records or testimony from his two friends would have altered the outcome of this case, as defendant's conviction was based primarily upon the observations of the officer at the time of the initial stop, which included defendant's inability to satisfactorily perform the field sobriety tests and the subsequent breathalyzer test results. Defendant proffered no expert testimony explaining any causal connection between acid reflux and his difficulty in performing the field sobriety tests. Nor did defendant present any expert testimony explaining the correlation between acid reflux and readings from a breathalyzer test.

On appeal from a de novo trial on the record, we will only consider the action of the Law Division, not that of the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). The scope of our review is limited. Id. at 252. We "determine whether the findings [of the Law Division] could reasonably have been reached on sufficient credible evidence present in the record," considering the proofs as a whole. Johnson, supra, 42 N.J. at 162. Here, we are satisfied that the Law Division's findings are supported by the record and conclude there is no basis for our intervention. Ibid.

Affirmed.

The transcript of this proceeding is not part of the record on appeal. Defendant, however, indicates in his brief that his conviction was reversed because he was without counsel in the Cedar Grove matter.

Mark Reed, at the time of his testimony, had become a member of the New Jersey State Police.

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

Defense counsel advised the Law Division judge during oral argument and in the brief filed on behalf of defendant's appeal to the Law Division that defendant was not appealing the speeding charge, stating to the court, "Clearly, he was speeding."

(continued)

(continued)

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A-2751-05T3

April 8, 2008