STATE OF NEW JERSEY v. MARINA ALEXANDROVA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1233-07T41233-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARINA ALEXANDROVA,

Defendant-Appellant.

_____________________________

 

Submitted January 29, 2009 - Decided

Before Judges Axelrad and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4695.

Mandelbaum, Salsburg, Gold, Lazris & Discenza, P.C., attorneys for appellant (Dean T. Bennett, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Marina Alexandrova, appeals from her conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant was initially found guilty in the Clifton Municipal Court. She was sentenced as a third-time DWI offender, N.J.S.A. 39:4-50(a)(3), resulting in the suspension of her driver's privileges for ten years; the imposition of an Interlock Device for a three year period, commencing on the date her driving privileges are restored; a 180-day prison term, of which ninety days may be served in an in-patient alcohol rehabilitation facility; and an assessment of applicable fines and penalties. She appealed.

After a trial de novo in Superior Court before Judge Guzman, Rule 3:23-8(a), defendant was again convicted of DWI. She was sentenced just as she was in municipal court, however, Judge Guzman stayed the sentence pending appeal.

On appeal, defendant presents the following arguments:

POINT I

THE MUNICIPAL COURT AND SUPERIOR COURT[] EACH ERRED WHEN THEY DENIED DEFENDANT'S RECUSAL APPLICATION BECAUSE NEITHER COURT CONSIDERED THAT DEFENDANT MIGHT REASONABLY BELIEVE THAT THEY WERE PRECLUDED FROM BEING FAIR AND UNBIASED.

A. THE MUNICIPAL COURT FAILED TO APPLY THE APPLICABLE STANDARD.

B. THE SUPERIOR COURT'S RESPONSE TO THE RECUSAL APPLICATION WAS ENTIRELY CONCLUSORY.

POINT II

THE STATE FAILED TO MEET ITS BURDEN OF PROOF THAT THE DEFENDANT WAS OPERATING HER MOTOR VEHICLE WHILE INTOXICATED UNDER [N].J.S.A. 39:4-50.

A. THE STATE PRESENTED NO EVIDENCE THAT DEFENDANT WAS OPERATING HER VEHICLE WHILE INTOXICATED.

B. THE COURT ESSENTIALLY REVERSED THE APPLICABLE BURDEN OF PROOF, AND DENIED DEFENDANT THE BENEFIT OF ANY POTENTIALLY FAVORABLE INFERENCE.

We affirm.

The facts are as follows. On April 17, 2006, at approximately 8 p.m., defendant was involved in a motor vehicle accident with her next door neighbor, Cynthia Mann. Defendant was returning from the liquor store, where she had purchased two pints of gin to consume prior to entering a rehabilitation program. As defendant entered her driveway, her vehicle struck Mann's vehicle, as Mann exited her adjacent driveway. Mann notified the Clifton police.

Defendant and Mann first waited for the police to arrive in Mann's kitchen. As defendant spoke to her, Mann detected an odor of alcohol and noticed defendant's speech was slightly slurred. The two then went outside.

Officer Rocco Locantore of the Clifton Police Department was dispatched at 8:33 p.m. When Officer Locantore arrived, defendant went into her home and Mann was questioned. Mann expressed her belief defendant "had a couple of drinks" but she could not say how many. She believed the police should just "let her sleep it off."

Officer Locantore next went to question defendant. He waited at her door for several minutes before she exited her home. When speaking to defendant, Officer Locantore noted defendant had bloodshot eyes, slurred speech and an odor of alcohol emanated from her breath. Defendant stated she was not the driver of the vehicle. Officer Locantore administered field sobriety tests, which defendant failed to perform satisfactorily. He observed her clothing was disorderly and her face flushed. As a result, Officer Locantore arrested defendant and towed her vehicle.

Two breathalyzer tests were administered at police headquarters, each registering a .20 per cent blood alcohol content. While at police headquarters, defendant responded to inquiries regarding her alcohol consumption. She stated she drank only two glasses of wine. At trial, defendant reiterated she drank the equivalent of one large glass, or two small glasses, of wine prior to the accident. Additionally, she asserted she appeared intoxicated to the police and failed the breathalyzer tests because she consumed two-thirds of a pint of gin after she left Mann's home, but before the investigating officer arrived.

In its de novo review of the municipal court conviction, the Law Division reviewed the municipal court record, convicted defendant and sentenced her. The sentence was stayed pending appeal.

In reviewing a municipal court conviction, the Law Division must make independent findings of fact and conclusions of law. It is bound by the evidentiary record of the municipal court and must give due regard to the municipal judge's opportunity to access the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964); State v. Loce, 267 N.J. Super 102, 104 (Law. Div. 1991), aff'd o.b., 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993).

On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). However, as with the Law Division, we are not in a position to judge credibility and do not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, supra, 42 N.J. at 161-62). We may "not weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1998), but we give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Unless we determine the Law Division's finding was "clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then, [] should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Avena, supra, 281 N.J. Super. at 333 (citations omitted).

Defendant moved to disqualify the municipal court judge and the Law Division judge, as each presided over her prior convictions. On appeal before us, defendant argues the municipal court and Superior Court erred in denying recusal because the judges failed to consider defendant's belief that she could not receive a fair and unbiased hearing. Defendant maintains the credibility findings made in the prior hearings tainted the courts' abilities to fairly and impassionately assess defendant's credibility in the current matter.

Disqualification, governed by Rule 1:12-1, is "entrusted to the 'sound discretion' of the trial judge whose recusal is sought." Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (quoting Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). Defendant relies on the provision of the Rule, which states recusal may be granted for any "reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(f).

Before a judge is "disqualified on the grounds of an appearance of bias, the belief that the proceedings were unfair must be objectively reasonable." State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). It is improper for a judge to withdraw from a case upon a mere suggestion that he is disqualified unless the alleged cause of recusal is known by him to exist or is shown to be true in fact. Id. at 276 (citing Hundred East Credit Corp. v. Eric Schuster, 212 N.J. Super. 350, 358 (App. Div.), certif. denied, 107 N.J. 60 (1986)). Notwithstanding defendant's arguments to the contrary, we, like the Law Division judge, discern no violation of Rule 1:12-1 and no basis for disqualification.

First, the suggestion that disqualification was warranted because the municipal court judge had presided over defendant's DWI trial, wherein she advanced a similar defense two years earlier, cannot result in an assumed predisposition of the appearance of bias. No evidence suggests the municipal court reached beyond the evidence to assess defendant's credibility. Also, the record supports the Law Division's finding that defendant's guilt was bottomed on the present record, not facts elicited in defendant's prior case. Following our review of the record, we determine Judge Guzman's rejection of defendant's argument asserting an associated blending of the facts of the two matters should not be disturbed.

Similarly, defendant offers no basis to disturb Judge Guzman's denial of the motion seeking his disqualification, but for the assertion that he had presided over defendant's prior municipal appeal. To impose an assumption favoring recusal when a judge presides over a prior matter that involved the same defendant where findings including determinations of credibility were made, works an unwarranted hardship to the system as a whole. Thus, we conclude no abuse of discretion occurred by the denial of defendant's motions for disqualification.

Briefly, we address defendant's challenge to the finding of operation of a motor vehicle while intoxicated. The State must prove beyond a reasonable doubt that a defendant operated a vehicle while under the influence of intoxicating liquor. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005); State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984).

Defendant maintains her vehicle was parked, not running, when the police arrived. Defendant asserts she was in her home, so Officer Locantore did not observe her in the vehicle. While these facts are accurate, they ignore the weight placed on the testimony of Mann, who encountered defendant immediately following the accident, and Officer Locantore's observations when he questioned and field tested defendant. Moreover, defendant mentioned her post-accident gin consumption for the first time at trial, not when questioned by police, at which time she insisted she drank only a large glass of wine. Defendant also denied to Officer Locantore that she was the driver. Finally, the breathalyzer readings were concededly accurate. Taken as a whole, these facts provide substantial evidential support of driving while intoxicated beyond a reasonable doubt.

 
Based upon our standard of review, we conclude there is more than sufficient credible evidence in the record to support defendant's conviction. Judge Guzman's written opinion fully and properly analyzed not only the challenge to the municipal court's denial of defendant's recusal motion, but also independently determined the State met its burden to convict defendant beyond a reasonable doubt of DWI. State v. Kashi, 360 N.J. Super. 538, 544 (App. Div. 2003), aff'd, 180 N.J. 45 (2004).

Affirmed.

(continued)

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A-1233-07T4

March 4, 2009