STATE OF NEW JERSEY v. ERIC R. REDNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2712-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC R. REDNER,

Defendant-Appellant.

________________________________________________________________

December 7, 2009

Argued November 10, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Atlantic County,

Municipal Appeal No. 80-08.

Mark J. Molz argued the cause for

appellant (Mark J. Molz, attorney;

Logan M. Terry, on the brief).

Jack J. Lipari, Assistant Prosecutor,

argued the cause for respondent

(Theodore F.L. Housel, Atlantic County

Prosecutor, attorney; Mr. Lipari, of

counsel and on the brief).

PER CURIAM

Following a trial in the Somers Point Municipal Court and a trial de novo in the Law Division, defendant Eric Redner was found guilty of Driving While Intoxicated, N.J.S.A. 39:4-50. Defendant also was found not guilty of leaving the scene of an accident, N.J.S.A. 39:4-129,1 and additional charges were dismissed. The conviction resulted in a suspension of defendant's driving privileges for a period of three months, twelve hours in the Intoxicated Driver's Resource Center as well as mandated fines, costs and penalties. Defendant appeals, and we affirm.

These are the relevant facts adduced from the record.

On April 30, 2006, at approximately 2:00 a.m., Officer Richard Dill of the Somers Point Police Department while off-duty, was at Charlie's Bar/Restaurant, when he heard a loud dragging noise coming from outside of the bar. He exited the bar and observed a red Nissan, with sparks flying, proceeding east on New Jersey Avenue. Officer Dill called central dispatch to report the incident. He then walked towards defendant's vehicle, where he observed defendant exit the driver's seat of the vehicle. The officer was approximately forty feet away at that point.

After leaving the vehicle, defendant walked approximately 100 to 150 feet eastward on New Jersey Avenue towards Bay Avenue. He staggered as he walked, with Officer Dill following at a distance of twenty to twenty-five feet. Somers Point Patrolman Charlie Somers then arrived at the scene in a marked police vehicle. Officer Dill stood by while Officer Somers continued the investigation. Standing eight to ten feet away from defendant, Officer Dill could smell an odor of alcohol. Based upon his observations, Officer Dill concluded that defendant was intoxicated.

Officer Somers, a nine-year veteran of the department, was Breathalyzer and then Alcotest certified, and had been involved in 25 to 30 DWI investigations. He had been trained in administering field sobriety tests. He was dispatched to Charlie's shortly after 2:00 a.m. When he arrived at Shore Road, the officer was advised by two bystanders that a Nissan Pathfinder had just struck a pole, drove up onto the sidewalk and almost hit Charlie's Bar, and then made a right turn onto New Jersey Avenue. Officer Somers immediately proceeded down New Jersey Avenue where Officer Dill pointed out the vehicle that struck the pole and identified defendant as the driver.

When Officer Somers exited his police vehicle, defendant was walking toward Bay Avenue. Officer Somers called for the defendant to return, and defendant complied. Officer Somers also made observations of the vehicle. He noted that the fender was missing, and the tire was bent and underneath the car. The car was a short distance away from Charlie's and located in the middle of the block. Officer Somers asked defendant whether he was driving the vehicle. Defendant responded in the affirmative. While talking to defendant, Officer Somers noted a strong odor of alcohol coming from his breath. Officer Somers asked defendant if he had been drinking. Defendant responded that he had been. Defendant was moving slowly, was lethargic, his speech was slow, he was swaying and was not sturdy on his feet.

While Officer Somers inquired about the accident and defendant's drinking, defendant became agitated and started to walk away and pace. At the same time, bar patrons were gathering to observe the scene. The area was becoming hectic, as a number of intoxicated people were exiting from the bar yelling. Concerned about safety, the officer effected an arrest and transported defendant to the station to conduct sobriety tests. When the defendant was placed under arrest, he was read his Miranda2 warnings. Defendant, in handcuffs, was transported in a police vehicle to the Somers Point Police Department.

At the station, Officer Somers administered a series of sobriety tests. Defendant was asked to recite the alphabet but was unable to do so without stopping on two or three occasions.

The officer then administered the "walk and turn" test. Before this test was administered, the officer asked defendant if he had any injuries that would prevent him from performing the test. Defendant responded that he did not. Defendant was unable to walk heel to toe. He exhibited poor balance, putting his hands up. He was unable to walk a straight line, drifting from side to side and toward chairs in the squad room where the sobriety testing took place.

A third test - the "bend at the waist" test was then administered. Defendant was swaying considerably on this test, approximately six to eight inches back and forth. In fact, defendant was continually swaying during all of the tests when standing still and when walking.

As previously noted, defendant's speech was slow. At the scene, he was at varying times uncooperative or antagonistic, but was cooperative at the station. His eyes were bloodshot and his eyelids droopy. His clothing was messed and dirty or stained, either from blood from a lip injury or from food. His face was flushed. Defendant was read the standard refusal form and agreed to submit breath samples. He also was asked questions contained on the drunk driving questionnaire. When asked whether he was sick, defendant noted that he had a sore throat but was not under the care of a doctor. He was not taking medication and did not have diabetes. When asked if he was injured, defendant referred just to the cut on his lip from the accident but indicated that the cut was not affecting him. The officer did not observe any other injuries. Defendant admitted that he had consumed six beers at Caroline's and Charlie's. He drank his first beer at 6:00 p.m., and his last beer at 12:30 a.m. He last ate at 6:00 p.m., when he had a crab cake sandwich. The officer opined that defendant was under the influence of alcohol.

Defendant offered Gilbert Snowden as an expert.3 Snowden's submitted report focused exclusively on the sobriety tests. He opined that there is no set way to perform the alphabet test and no set scoring criteria. He described the test as a mental pass test that police use as a "pre-exit test." He concluded that defendant was able to say the alphabet as instructed. He described the "walk and turn" test as a standard test used in all fifty states and promulgated by the National Highway Traffic Safety Administration (NHTSA). Snowden maintained the test was not performed properly. He indicated that more should have been done to ascertain the existence of injury and the extent to which any injury might compromise testing. For example, Snowden observed that the officer could have done a Hortz Gabe Nystagmus (HGN)/tracking ability test. If the pupils were to appear unequal in size on such testing, that, according to Snowden, could indicate injury, including head injury. Snowden was also critical of the "bend at the waist" test. In his view the test is flawed and the average sober person is not able to perform it successfully. According to the expert, a person should not be tested for balance in an unbalanced position. He indicated that it is not a standard NHTSA test and is not taught at the Drug Evaluation Expert (DRE) program. Snowden opined that based on the sobriety tests in this case, defendant was not under the influence.

Both the municipal court judge and Judge Neustadter in the Law Division found the officers credible, rejected the opinion of defendant's expert and found defendant guilty. This appeal followed.

On appeal, defendant asserts:

POINT I IT WAS REVERSIBLE ERROR FOR JUDGE BROOME TO ALLOW OFF-DUTY OFFICER RICK DILL TO TESTIFY WITHOUT PRIOR NOTICE TO DEFENDANT

POINT II THE ADMISSION INTO EVIDENCE OF OFF-DUTY OFFICER DILL'S OBSERVATIONS AND OPINION TESTIMONY NOT CONTAINED IN THE POLICE REPORT WITHOUT PROVIDING IT IN DISCOVERY VIOLATED DUE PROCESS

POINT III IT WAS REVERSIBLE ERROR TO PRECLUDE DEFENDANT'S EXPERT FROM TESTIFYING ON INFORMATION HE ADDUCED AT TRIAL

POINT IV IT WAS HARMFUL ERROR TO PERMIT THE STATE TO REFUTE THE POLICE REPORT WITHOUT PROVIDING DEFENDANT WITH NOTICE OF THIS INTENTION

POINT V THE STATE FAILED TO SHOW BEYOND A REASONABLE DOUBT THAT ERIC REDNER WAS DRIVING WHILE INTOXICATED

POINT VI THE LAW DIVISION ERRED BY FINDING DEFENDANT'S EXPERT CREDIBLE BUT REJECTING HIS FINDINGS

We have considered defendant's arguments and carefully reviewed the record in its entirety. We conclude that defendant's arguments are without merit. R. 2:11-3(e)(1)(E).

As both judges noted in their respective opinions, the evidence supported the factual findings. Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the Municipal Court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super.624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid.(citing State v. Johnson, 42 N.J.146, 157 (1964)). . . . "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." Ibid.(citingJohnson, supra, 42 N.J.at 161-62).

Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the Municipal Court judge. Ibid.(citing State v. Locurto, 157 N.J.463, 474 (1999)). Furthermore, when the Law Division agrees with the Municipal Court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J.at 474 (citingMidler v. Heinowitz, 10 N.J.123, 128-29 (1952)).

While we agree with defendant that Officer Dill should have been specifically identified in discovery as a witness, we do note that his name did appear in the police report. We also question whether there was any real prejudice to defendant as a result of the lack of specificity as to Dill.

See State v. Ingram, 196 N.J. 23, 43 (2008) (stating that in order to justify reversal, the prosecutor's conduct must have substantially prejudiced the defendant's fundamental rights) (citation omitted). Dill's substantive testimony is cumulative as Officer Somers proved to be the investigating officer both at the scene and at the stationhouse. We find that there was no prejudice to defendant.

We, likewise, reject defendant's argument that the judge erred by barring the expert's opinion as to the "head injury." We first note that the injury was to defendant's lip. While on cross-examination, the expert suggested that an injury to the lip was characterized as a "head injury," defendant confirmed his cut lip but indicated that the cut was not affecting him. In sum, there was nothing in the record to suggest that defendant suffered a debilitating head injury that would compromise the various administered tests.

A trial judge's "evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). We will not substitute our judgment for that of the trial judge "unless the trial [judge]'s ruling was so wide of the mark that a manifest denial of justice resulted." Ibid. (internal citation and quotations omitted). In both instances here, the admissibility of Officer Dill's testimony as well as limiting the expert's testimony, we find no abuse of discretion warranting our intervention.

1 Defendant had previously entered a plea of guilty conditioned on the accuracy of Alcotest results. See State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed 2d (2008). Both the State and defendant agree that the test results here produced a "false reading," and the test results were not admitted.

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

3 Snowden did not attend the first hearing date but received a transcript before his testimony.