STATE OF NEW JERSEY v. PAMELA BUSH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1548-07T41548-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAMELA BUSH,

Defendant-Appellant.

_______________________________

 

Submitted: December 10, 2008 - Decided:

Before Judges C.L. Miniman and King.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Cumberland County, Municipal Appeal No. 16-07.

Hoffman DiMuzio, attorneys for appellant (Peter J. Bonfiglio, III, of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (David Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Pamela Bush appeals from her conviction of driving while intoxicated, in violation of N.J.S.A. 39:4-50; refusal to submit to a chemical test, in violation of N.J.S.A. 39:4-50.4(a); and reckless driving, in violation of N.J.S.A. 39:4-96. We affirm.

During the evening of January 5, 2007, witness Dianne Hatfield was following a black SUV on Morias Avenue in Millville. After observing the SUV swerve off the road multiple times, narrowly missing telephone poles, mailboxes, and bushes, Hatfield called 911 and reported her observations, giving the license plate number JYM-29J to the dispatcher. Hatfield continued to follow the SUV. At one point it pulled over for a few minutes but then continued until it pulled into a driveway at the corner of Morias Avenue and West Main Street. The driver, who was wearing gray sweatpants, exited the vehicle and struggled up the steps to the residence. At that point, Hatfield left the scene.

Millville Police Officer Jason Vinzinski was dispatched to that residence in response to Hatfield's call and arrived there less than four minutes later. He approached the parked black SUV, which he identified as a Ford Explorer with plates matching Hatfield's description, and noticed that the hood was dry and warm despite a light rain. The car was registered to defendant. As he approached the residence, he saw defendant through a window and noticed that her pocketbook and keys were on the porch. The officer knocked on the door and the homeowner, Theresa Nardi, admitted him into the residence. He inquired who had been driving the Explorer and defendant, who was leaning against the kitchen cabinets and slurring her words, answered that she drove it. Although she had a strong odor of alcohol on her breath, glassy and bloodshot eyes, and poor balance, she denied having had anything to drink that night. Defendant wore gray sweatpants, consistent with Hatfield's observation.

Theresa Nardi denied knowing defendant, although defendant claimed that Theresa Nardi was her aunt and stated that defendant's mother was dying. When pressed, defendant did not know Theresa Nardi's name. As defendant and the officer left the residence, defendant swayed, stumbled, and grabbed the railing to steady herself. Although the officer asked defendant twice to perform field sobriety tests, she steadfastly refused, saying, "[N]o I won't, you're not arresting me for DWI . . . . You can't arrest me, and I won't do any test[s]." The officer then placed defendant under arrest for driving while intoxicated and put her in his patrol car. Before leaving the scene, Theresa Nardi's husband, Anthony Nardi, returned home and identified defendant as his nephew's former girlfriend, at which point Theresa Nardi remembered having met her five years earlier at a wedding. The Nardis did not know why defendant was at their home. When the officer retrieved defendant's documentation from her vehicle, he observed a glass in the center console cup holder which was filled with an alcoholic beverage and still cold to the touch.

On the way to the police station, the officer could smell the alcohol on defendant's breath through the plexiglass divider separating the front and rear seats of his patrol car. Defendant told the officer that her brother Paul had been driving her vehicle and that his girlfriend was having a miscarriage in the back of the vehicle. Later she told the officer that her brother was at home sleeping. The officer asked defendant for her brother's telephone number to verify her story, but she refused to provide it. Before processing the defendant, the officer noticed that she had urinated in her pants. Defendant refused to sign the Miranda form after being read her rights, although she acknowledged that she understood them. She also refused to submit to the Alcotest after being read the appropriate forms regarding the taking of a breath sample.

After finding the facts from the record before the municipal court, the judge rendered the following oral decision:

In this matter, reviewing the entire set of circumstances and the entire record in this matter, [I find] that the State has proven the elements of the offense of drunk driving and refusal to provide a breath sample, beyond a reasonable doubt.

First[,] . . . with respect to [Officer Vinzinski's] initial introductory question when [he] arrived at the residence, as to who was driving the car[,] the officer was [not] required to give Miranda warnings before asking that introductory question.

That's a simple, standard, initial field investigation inquiry that a police officer is entitled to do, especially when there's more than one person present. Nobody was under arrest at that point. Nobody was handcuffed.

Nobody was . . . in the police car or at the police station. Nobody had been charged. No threats were made . . . . It was an initial field inquiry; hey, who was driving? [T]he defendant chose to answer that question and indicated that she was driving.

[T]herefore, I find that it was not in violation of any Miranda rights because Miranda rights were no[t] required at that point. [Defendant] was not in custody. She had not been charged. It was not a coercive environment. It was a preliminary field investigation question.

There's no question in this matter but that [defendant] was under the influence of alcohol, although we don't have an Alcotest . The repeated indications in the police report, which was admitted into evidence by stipulation of Officer Vinzinski, was the fact that she reeked of alcohol.

And her driving was . . . horrific. It was all over the road. It's lucky she didn't hit a pole. [She was s]werving and swaying all over the road. She was followed for some distance.

. . . .

[Ms. Hatfield] could only describe the vehicle and how it was being driven. And that she watched somebody go in the house and that they had gray sweat pants on.

But the testimony or the evidence of Officer Vinzinski, when coupled with that testimony of Ms. Hatfield, is enough to convince this court that the State has met its burden of proof of all the elements of all of the offenses.

As I indicated, [defendant] was clearly under the influence. She reeked of alcohol. She lacked any ability to walk in a normal manner, swaying, almost stumbling down, rambling, making inconsistent statements while in the police car.

Her eyes were glassy and bloodshot. She couldn't stand up straight without swaying back and forth, without holding on for support, [and was] stumbling. She refused to perform any balance tests. She was indeed wearing gray pants. In fact, there was another container of alcoholic beverage right . . . inside the vehicle.

[I have] no difficulty in reaching a conclusion that [defendant] was the operator of that black Ford Explorer. There wasn't anybody else around that drove it. Her explanations were inconsistent and unbelievable in terms of her explanations to the police.

She drove that vehicle there, she got out of the vehicle and she was inside the house when the police arrived, just moments later. Again, [this] circumstantial evidence i[s] clearly admissible and capable of proving an offense beyond a reasonable doubt.

Aside from being internally inconsistent and not making any sense, her statements regarding why she was driving or who was driving . . . lends additional strength to the State's case.

[Defendant's] explanation that he[r] brother Paul was driving was clearly out in left field. [Her statement that] his girlfriend was in the back of the vehicle made no sense. She later said that Paul was home sleeping, contradicting herself.

. . . .

[T]he State has convinced [me], through the testimony and circumstantial evidence, that this defendant . . . was in fact the driver of that black SUV. It strains all credibility to conclude otherwise.

. . . But there are several other facts that I think are important to highlight.

This was her vehicle. The black Ford Explorer was her car. She was wearing gray pants, matching the description by Ms. Hatfield. She admitted inside the house that she had been the driver and it was her pocketbook and keys that were in the porch area, as the police officer approached.

All that adds up to more than sufficient evidence in [my] mind that she was, in fact, the driver of that vehicle, particularly in the context of the situation.

There's an implied consent law in this State and I beg to differ with defense counsel. The primary purpose of the implied consent law is, in fact, so that the police can extract a noninvasive breath sample to use. Either in the old days, a Breathalyzer , or now, the Alcotest , to determine the alcohol level of a driver suspected of being under the influence.

. . . But the purpose of the implied consent law is so that that proof is available.

. . . .

And it is reasonable for the Legislature to put an implied consent law in place so that that proof will be available to determine if, in fact, the driver is over the legal limit or not, in terms of . . . blood alcohol concentration.

But that's not the only purpose. Under the current version of the DWI statute, for example, there's a differential impact in terms of sentencing, at least on the first offense, depending upon the alcohol level of the driver.

Correct me if I'm wrong but I believe the length of suspension is impacted by the level of alcohol, at least for a first offense. So there's a secondary purpose for the implied consent law.

But the other purpose is that there are many cases, perhaps not this one but there are many cases where, because of circumstances, there is not much opportunity to observe the driver[, o]r the evidence is somehow otherwise . . . equivocal and the Breathalyzer test results are quite important.

[I]t's for that additional reason . . . that the implied consent law [w]as put in place. [Defendant] clearly refused to take the test. [B]efore they even asked her to give the breath sample she said, you're not charging me with DWI, not me.

[W]hen she got to the police station, she wouldn't give a sample. Accordingly, [I find] that the State has met its burden of proving . . . the Defendant guilty of both DWI and Refusal.

[I note] in passing that [I find] no reason to deviate from and not give due deference to any credibility determinations made by Judge Neiderer. [I]n this case I've already found, however, independently that the testimony of Ms. Bush appeared to be candid.

. . . .

As I mentioned before, the reckless driving [count] is merged and therefore, any penalties imposed with respect to the reckless driving are vacated.

The judge then imposed the appropriate fines and penalties. This appeal followed.

Defendant raises the following issues on appeal:

POINT I - THE STATE HAS FAILED TO MEET ITS BURDEN OF PROOF WITH REGARD TO THE CHARGE OF N.J.S.A. 39:4-50 AND THE CHARGE SHOULD BE DISMISSED.

POINT II - THE DEFENDANT'S CONVICTION FOR VIOLATING N.J.S.A. 39:4-50.4(a) AND N.J.S.A. 39:4-96 SHOULD BE MERGED WITH ANY CONVICTION PURSUANT TO N.J.S.A. 39:4-50.

We note that the scope of our appellate review in this case is limited. Municipal court decisions are appealed first to the Law Division. R. 3:23-1; State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003); State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division conducts a trial de novo on the record developed in the municipal court, pursuant to Rule 3:23-8. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). The Law Division judge is bound to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964); State v. Locurto, 157 N.J. 463, 472-74 (1999).

Deference, however, does not mean adherence and the Law Division judge may reach a different result.

But if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways -- from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-valuation of crucial evidence, a clearly unjust result, and many others. This, then, is when and how the permissive power of R.R. 1:5-4(b) should be utilized by the first appellate tribunal and is what our prior cases mean no matter how they have expressed it.

[Johnson, supra, 42 N.J. at 162 (citations omitted).]

For example, in State v. Kane, 335 N.J. Super. 391, 396-97 (App. Div. 2000), we found that the trial court was clearly mistaken in finding that defendant inflicted a serious bodily injury, a conclusion that "was so plainly unwarranted that the interests of justice demand[ed] intervention and correction."

Here, the Law Division judge agreed with the municipal court judge's credibility assessments. Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court. See Johnson, supra, 42 N.J. at 161-62. Like the Law Division, we are not in a good position to judge credibility and should not make new credibility findings. Locurto, supra, 157 N.J. at 470-71. It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471.

Moreover,

[a]lthough the Law Division did not engage in its own credibility determinations separate and apart from the Municipal Court, it described on the record the evidence and testimony presented before the Municipal Court that persuaded it to "accede" to the Municipal Court's credibility determinations. Appellate courts should defer to the trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[Locurto, supra, 157 N.J. at 474 (citations omitted).]

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the Law Division judge in his oral opinion delivered on October 18, 2007. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Locurto, supra, 157 N.J. at 471.

We add only the following brief comments: There was very substantial evidence in the record from which the municipal court judge and the Law Division judge could conclude beyond a reasonable doubt that defendant was operating the motor vehicle. We also find no merit to defendant's contention that the judge erred in failing to merge the refusal conviction with the conviction for driving while intoxicated for sentencing purposes. The refusal conviction is based upon conduct occurring after the operation of the motor vehicle has ended. Indeed N.J.S.A. 39:4-50.4(a) provides that "for a second or subsequent offense, the revocation [for refusal] shall be consecutive to any revocation imposed for a conviction under [N.J.S.A. 39:4-50]." This was a second conviction, defendant having previously been convicted of driving under the influence of alcohol in February of 2005.

Affirmed.

 

At the time of trial defendant's brother testified that his fiancée did have a miscarriage on January 5, 2007, and stated that he called his sister, who was a nurse, and asked her to come over, and that she was upset by the news of the miscarriage. He did not testify at trial that he and his fiancée were in defendant's car that evening.

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A-1548-07T4

January 16, 2009