STATE OF NEW JERSEY v. JAMES O. BRYANT, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1348-07T41348-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES O. BRYANT, JR.,

Defendant-Appellant.

_____________________________________________

 

Submitted January 25, 2010 - Decided

Before Judges Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 74-06.

James O. Bryant, Jr., appellant pro se.

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James O. Bryant, Jr., appeals from his conviction for refusal to submit to a breath test and reckless driving. He contends that he was harassed by the police and that they retaliated against him, that he was not intoxicated, that his constitutional and civil rights were violated by his arrest and the use of a false police report as evidence, and that his trial was held a year and three weeks after the charges arose.

Defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50; improper backing, N.J.S.A. 39:4-127; failure to notify change of address, N.J.S.A. 39:3-36; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; and reckless driving, N.J.S.A. 39:4-96. After numerous adjournments, the case was tried in municipal court on September 21, 2006.

The State's witness, a police officer, testified that on August 30, 2005, at about 9:13 p.m., he heard a Mercury Sable car with its engine revving, accelerate at a high rate of speed, and saw it stop abruptly in a no-parking area by the police station. The driver, later identified as defendant, exited the vehicle and began to yell about the police department being closed. The officer directed him to a side door. Defendant proceeded to back the car at a high rate of acceleration to the front doors of the police department and then stopped abruptly. Defendant exited the vehicle and reported to the officer that his Mercury Sable was missing.

The officer smelled the odor of an alcoholic beverage emanating from defendant and observed that defendant was swaying, that his speech was slurred, and that his eyes were bloodshot. Defendant admitted to having three or four beers and some liquor. He did not cooperate with field tests, telling the officer that he was being "set up."

Believing defendant to be intoxicated, the officer placed him under arrest. Defendant refused to take the breathalyzer test. The officer acknowledged, upon observing defendant at a court hearing, that defendant's demeanor or "odd behavior" was the same when he was sober as when he was intoxicated, although defendant was not swaying or smelling of alcohol in court.

Defendant testified at trial and explained that he grew up in North Carolina and has been told that he has a southern accent. He explained that he drove to the police station that evening to report that one of his two Mercury Sables was missing. He refuted the officer's account of his driving. He denied drinking that day or telling the officer that he had been drinking. He contended that the officers were trying to make him look like a fool because he was reporting a Mercury Sable missing when he had just parked one outside, although defendant had not clarified at that time that he owned two Mercury Sables. He did not understand why the officer asked him to recite the alphabet or inquired about his drinking. He did not remember being asked to perform field sobriety tests, and testified that he was trying to be cooperative. However, he believed that he was being framed. He denied that he refused to take the breathalyzer test.

The municipal court judge found the officer to be a credible witness and accepted as true his version of events. He found that the officer had reasonable cause to request defendant to submit to a breathalyzer test and found defendant guilty of refusing to take the breathalyzer test. However, the municipal court judge found that the proofs were insufficient to prove beyond a reasonable doubt that defendant "manifested a substantial deterioration or diminution of the mental faculties or physical capabilities" to constitute driving while under the influence, and he dismissed that charge.

The municipal court judge did find that the proofs were sufficient to support the charge of reckless driving and merged the charge of improper backing with that offense. The charge of failure to notify change of address had been dismissed at the end of the State's case. On the reckless driving conviction, the municipal court judge fined defendant $206 and assessed him court costs of $33. On the refusal to take a breath test conviction, the municipal court judge suspended defendant's driver's license for two years and required that he attend forty-eight hours at the Intoxicated Driver Resource Center. He also imposed a fine of $506, court costs of $33 and a $100 surcharge.

Defendant appealed to the Law Division, and in a de novo review of the municipal court record, the Law Division judge found defendant guilty of reckless driving and refusing to take the breath test and imposed a sentence identical to the one imposed by the municipal court judge. We note that the judgment of the Law Division judge memorializing this decision, incorrectly states that defendant was convicted of driving while under the influence, citing N.J.S.A. 39:4-50. As noted above, defendant was acquitted of this charge, but was convicted of failing to take the breath test under N.J.S.A. 39:4-50.2.

Appeals from the municipal court to the Law Division are heard de novo on the record. R. 3:23-8(a). While the Law Division must make its own findings of fact and conclusions of law, in doing so, it must give deference to the municipal court's credibility findings. Pressler, Current N.J. Court Rules, Comment 1.2 on R. 3:23-8 (2010).

Our function when reviewing a Law Division's de novo decision after a municipal court trial is "to 'determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Further, "[u]nder 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." State v. Locurto, 157 N.J. 463, 474 (1999).

In light of this standard of review, we must affirm. The testimony of the police officer, whom the trial court found to be a credible witness, is sufficient to support the charges of refusing to take the breath test and reckless driving. The delay in the trial of the charges is attributable to various adjournments, some requested by the defense, others by the State or necessitated by the court's calendar. The police report was not marked into evidence, but rather was marked for identification only and was used by the officer to refresh his recollection as permitted by N.J.R.E. 612. No further discussion of the issues raised in this appeal is warranted. R. 2:11-3(e)(2).

The convictions and sentences are affirmed. We remand to the Law Division, in order that a corrected judgment of conviction be entered. The corrected judgment of conviction should list defendant's convictions of reckless driving, N.J.S.A. 39:4-96 and refusing to take the breath test, N.J.S.A. 39:4-50.2. It must delete reference to a conviction of driving while under the influence, N.J.S.A. 39:4-50, because defendant was acquitted of that charge.

 
Affirmed in part, remanded in part.

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A-1348-07T4

February 26, 2010