STATE OF NEW JERSEY v. DANIEL J. FINERAN, III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4132-07T44132-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL J. FINERAN, III,

Defendant-Appellant.

_________________________________

 

Submitted: January 14, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 51-07.

Mallon, Santora & Tranger, attorneys for appellant (Thomas J. Mallon, of counsel; Michael J. Fioretti, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Thomas Cannavo, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Daniel J. Fineran, III, appeals from a judgment of conviction for driving under the influence in violation of N.J.S.A. 39:4-50 and refusal to take a chemical test contrary to N.J.S.A. 39:4-50.2. The matter was tried de novo on appeal from a conviction in the municipal court of Seaside Heights. We affirm.

Defendant was observed at about 1:00 a.m. on September 29, 2007, by the arresting officer while defendant was traveling in the wrong direction on a two-lane, two-way State highway. After defendant corrected the lane in which he was traveling the officer activated his light and defendant pulled over to the side of the road. When the officer approached defendant's vehicle, there was an odor of alcohol. Defendant's eyes were glassy and bloodshot. Defendant, who admitted to the officer that he had been drinking, informed the officer that he had injuries to his back and left foot. Defendant was unable to pass the field sobriety tests administered by the officer. The officer determined that he had probable cause to believe that defendant was driving under the influence of alcohol, placed defendant under arrest, and brought him back to the police station.

At headquarters, the police read a statement of Miranda rights to defendant and read the full text of the DWI refusal form. Defendant appeared to be attentive. When the officer paused, defendant asked, "What are my options?" The officer then read the second portion of the refusal form and paused again. Defendant remained silent and an officer declared that his silence was a refusal. The police then charged defendant with refusal to take a breath test. At no point did he assent to the test.

During the municipal trial, defendant claimed that he had only half a drink in each of two bars. Defendant also claimed that he could not perform the field sobriety tests because he had a bad back and an injured toe. However, the foot that he was required to elevate in the one-legged stand had the injured toe, which could hardly interfere with the performance of the test. Furthermore, his back injury could not have been debilitating in terms of performing the field tests because the only treatment he had received was one epidural injection four or five years prior to his arrest. With respect to the reading of the refusal form, defendant contended that the officer read it very rapidly and, when he asked the officer to slow down, the officer read even faster. The municipal court judge found that the defendant was not a credible witness and credited the testimony of the officer. The Law Division judge agreed, specifically rejecting the claim about the amount of alcohol defendant consumed as not credible even on a cold record.

The Law Division judge concluded that defendant refused to take a breath test because he did not express an unqualified, unequivocal assent and that "his refusal was knowing [and] intentional" beyond a reasonable doubt and qualified under the statute as a refusal. She also found that there was "more than enough evidence to show that [defendant] was under the influence at the time he was operating the motor vehicle based upon the sobriety test and his conduct[; a]nd I find that beyond a reasonable doubt."

Because this was defendant first DWI conviction, the judge imposed a $200 DWI surcharge; $75 Safe Neighborhood penalty, suspended defendant's privilege of driving in New Jersey for three months; and required twelve hours at the Intoxicated Driver Resource Center (IDRC). On the refusal conviction, the judge imposed a fine of $306 plus costs of $33; a $100 DWI surcharge; concurrent suspension of defendant's privilege to drive in New Jersey of seven months; and required twelve hours at the IDRC. A stay of sentence was conditioned on the filing of a notice of appeal and this appeal followed.

Defendant raises the following issues on appeal:

POINT I - THE CONVICTION OF THE DEFENDANT PURSUANT TO N.J.S.A. 39:4-50.2 IS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD.

A. THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD DEMONSTRATING THAT OFFICER HECKLER COMPLIED WITH SUBSECTION (E) OF THE REFUSAL STATUTE.

B. SINCE THE STATE COULD NOT SET FORTH THE AMOUNT OF TIME THE DEFENDANT REMAINED SILENT FOLLOWING THE UNINTELLIGIBLE READING OF THE PARAGRAPH 36 FORM, THERE IS INSUFFICIENT CREDIBLE EVIDENCE ON THE RECORD TO FIND THE DEFENDANT GUILTY OF A VIOLATION OF THE REFUSAL STATUTE.

C. IN ORDER TO ADEQUATELY SAFEGUARD THE PROCEDURAL DUE PROCESS RIGHTS OF AN INDIVIDUAL SUSPECTED OF DRIVING WHILE INTOXICATED, AN ARRESTED SUBJECT SHOULD BE GIVEN AT LEAST TEN SECONDS TO RESPOND TO THE OFFICER'S REQUEST FOR SUBMISSION OF A BREATH SAMPLE. (NOT RAISED BELOW)

POINT II - THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE DEFENDANT'S CONVICTION OF DRIVING WHILE INTOXICATED 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. 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-evaluation 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 judge. 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. In Locurto, the Court enunciated the two-court rule as follows:

Although 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 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 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 (citations omitted).]

Here, the municipal court judge repeatedly rejected defendant's testimony as not believable. Those conclusions are generally binding on de novo appeal and before us. In light of that adverse credibility determination, there is no real issue as to the sufficiency of the evidence. His complaint that the officer's reading of the requisite form was unintelligible lacks merit in light of the adverse credibility determination. Furthermore, defendant's glassy and bloodshot eyes, the odor of alcohol on his breath, his erratic careless driving, and his failure to pass roadside sobriety tests is more than sufficient evidence to uphold his conviction for driving under the influence.

Finally, with respect to defendant's claim that a suspect should be given more time to decide whether to assent to a breath test, our Supreme Court addressed the issue of what constitutes a refusal in State v. Widmaier, 157 N.J. 475, 488 (1999). There, after the second portion of the refusal form was read to defendant, defendant asked to have his attorney present. Id. at 485. After he was advised that he did not have a right to have counsel present for a breath test, he remained silent. Ibid. The Court held that defendant had no right to have an attorney present for the breath test because breath sample were a nontestimonial form of evidence. Id. at 487. The Court adopted the unequivocal assent rule formulated in State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div.), certif. denied, 126 N.J. 323 (1991), and State v. Corrado, 184 N.J. Super. 561, 568-69 (App. Div. 1982). Widmaier, supra, 157 N.J. at 488. We will not modify this bright-line rule by requiring law enforcement officers to wait ten seconds after reading the second part of the form to declare a refusal. The length of time to await a response is committed to the officer's discretion. Chun, supra, 194 N.J. at 99.

Thus, beyond a reasonable doubt, the State had probable cause to believe that defendant was under the influence of alcohol while he was in control of the vehicle, that he was arrested, and that he refused to submit to a breath test at the request of an officer, all the elements required to prove a refusal. State v. Cummings, 184 N.J. 84, 96 (2005); State v. Wright, 107 N.J. 488, 495 (1987).

Affirmed.

 

Defendant had also been charged with careless driving and failure to maintain a proper lane, but the court dismissed those charges at the conclusion of the municipal court trial.

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

Defendant is a licensed Pennsylvania driver.

Notably, in another context the Supreme Court rejected a claim that a suspect should be offered eleven opportunities to blow into an Alcotest machine before the police can declare a refusal. State v. Chun, 194 N.J. 54, 99 (citing Widmaier, supra, 157 N.J. 475), cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

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A-4132-07T4

February 4, 2009