STATE OF NEW JERSEY v. YOSHINORI KAWASHIMA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4052-08T44052-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YOSHINORI KAWASHIMA,

Defendant-Appellant.

_____________________________________

 

Argued January 20, 2010 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from Superior Court of New

Jersey, Law Division, Somerset County,

Municipal Appeal No. 35-08-R-T13.

Bartholomew Baffuto argued the cause for

appellant.

Anthony Parenti, Assistant Prosecutor,

argued the cause for respondent (Wayne J.

Forrest, Somerset County Prosecutor,

attorney; Michael McLaughlin, Assistant

Prosecutor, on the brief).

PER CURIAM

Following a trial before the Hillsborough Municipal Court and trial de novo in the Law Division, defendant Yoshinori Kawashima appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant, a first-offender, was sentenced to attend the Intoxicated Driver's Resource Center for twelve hours, and his driver's license was suspended for nine months. In addition, he was required to pay $764: a $100 DWI assessment, a $100 payment to the DAEF fund, a $400 fine, a $50 VCCB assessment, a $75 SNSF penalty, $33 for court costs and $6 for administrative fees. Substantially for the reasons stated in a written opinion issued by Judge Reed following defendant's trial de novo in the Law Division, we affirm.

These facts were established at trial. On February 23, 2007, Officer Kearney of the Hillsborough Police Department was dispatched in response to a report of an accident. Defendant was driving an SUV at the time of the accident, and Mrs. Brown was driving a car. According to Mrs. Brown, defendant drove from the cross street into the intersection as she was turning onto the cross street. His car hit hers.

When Officer Kearney spoke to defendant, he detected the odor of alcohol in the defendant's SUV and noticed that defendant's eyes were red and watery and that his speech seemed slow. He directed defendant to remove a piece of gum that he was chewing from his mouth. In response to the officer's questions, defendant said he had two beers with his dinner and estimated that the accident occurred about forty minutes after he finished his last drink. At trial, defendant could not recall how many beers he had consumed during the hours he spent at the restaurant.

Officer Kearney asked defendant to perform sobriety tests. The testing process commenced at 11:33 p.m. The officer gave defendant instructions and demonstrated how the tests were to be performed. Although defendant initially answered "yes" when asked whether he had any physical condition that would interfere with his performance, when the officer asked him to identify the problem, he said he did not have any relevant condition.

As defendant performed the heel-to-toe test, he touched the heel of one foot to the toe of the other on two out of nine times during his first effort. On a second attempt, after taking a few steps, defendant swayed and almost fell. When he tried to perform another test, one requiring him to stand on one leg with his arms at his side, he again "swayed." Officer Kearney stopped that test out of concern that defendant would be injured.

Officer Kearney also conducted a horizontal gaze nystagmus test (HGN). He detected a "distinct jerking motion" in defendant's eyes as defendant tried to follow the officer's finger and a "bouncing" of his eyes as he followed a command to look at the corners of his eyes.

Based on the odor of alcohol and the results of the sobriety tests, Officer Kearney placed defendant under arrest and handcuffed him. The time was 11:41 p.m. Defendant was then seated in the back seat of the police car, and at 11:43 p.m. Officer Kearney started on the trip to the police station. During the ride, Officer Kearney detected the odor of alcohol in the police car.

They arrived at the station at 11:58 p.m. Defendant, still handcuffed, was taken inside and given a seat on a bench. Officer Kearney removed the handcuffs and immediately placed defendant in a set of handcuffs that was attached by a chain running from the cuffs to the floor beneath the bench.

Officer Kearney gave defendant the requisite warnings about his constitutional rights. At 12:25 a.m., more than twenty minutes after they arrived at the police station, the officer started to complete the forms preliminary to administration of the Alcotest.

Officer Kearney is a certified Alcotest operator, and he administered the test. He was in defendant's presence continuously from the time he got into the car to drive the handcuffed defendant to headquarters until the Alcotest was administered and completed at 12:40 a.m. Defendant's Alcotest result was .10.

Officer Patrick Murphy, also of the Hillsborough Township Police Department, is a certified Alcotest analyst and responsible for changing the solutions utilized in testing. According to Murphy, the Alcotest device used to test defendant was certified on January 10, 2007, about six weeks prior to defendant's arrest, and the solutions were changed on February 19, 2007.

Both the judge of the municipal court and Judge Reed, of the Law Division, viewed the video-recording. Both found that the State had established, beyond a reasonable doubt, that defendant drove while intoxicated. Both found that guilt was proven by the evidence of the officer's observations and defendant's conduct prior to his arrest and by the Alcotest results.

On appeal defendant raises these issues:

I. MR. KAWASHIMA WAS DEPRIVED OF THE RIGHT

TO COUNSEL FOR HIS DEFENSE BY THE TRIAL COURT'S ACTIVE INTERFERENCE WITH DEFENSE COUNSEL'S REPRESENTATION.

II. AS FOUND BY THE MUNICIPAL COURT, MR.

KAWASHIMA WAS NOT UNDER THE INFLUENCE OF INTOXICATING LIQUOR AS PROSCRIBED BY N.J.S.[A.] 39:4-50.

III. THE MUNICIPAL COURT JUDGE'S FAILURE TO

RECUSE HIMSELF DENIED MR. KAWASHIMA HIS RIGHT TO TRIAL BEFORE A DISINTERESTED AND IMPARTIAL JUDICIAL OFFICER AS GUARANTEED BY THE FOURTEENTH AMENDMENT.

IV. THE MUNICIPAL COURT JUDGE'S REFUSAL TO

ENFORCE A SUBPOENA TO COMPEL THE APPEARANCE AT TRIAL OF AN ESSENTIAL DEFENSE WITNESS DENIED MR. KAWASHIMA DUE PROCESS AND FURTHER CREATED THE APPEARANCE OF BIAS ON THE PART OF THE MUNICIPAL JUDGE.

V. TESTIMONY AS TO HORIZONTAL GAZE

NYSTAGMUS LACKED ANY FOUNDATION AND SHOULD BE STRICKEN.

VI. TESTIMONY AS TO PURPORTED RESULTS OF

BREATH TESTING LACKED FOUNDATION AND SHOULD BE STRICKEN.

VII. MR. KAWASHIMA WAS UNJUSTLY SENTENCED

BASED ON A PURPORTED MEASUREMENT OF .10 WHICH IN REALITY CAN BE NO MORE THAN A MEASUREMENT OF .095. (NOT RAISED BELOW)

The issues raised by defendant lack sufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(2). In the paragraphs that follow, we briefly explain our reasons for reaching that conclusion.

The arguments raised in Points I and III of defendant's brief are based upon the $100 penalty that is mandated by N.J.S.A. 39:4-50.8 when a defendant is convicted of violating N.J.S.A. 39:4-50. Defendant claims that the municipal court erred in precluding his attorney from cross-examining Officer Kearney about any benefit he might receive from funds made available for overtime because of that assessment. He also claims that the municipal court judge ought to have recused himself because municipal revenue attributable to the assessments may fund the municipal court. There is no basis for concluding that the wages or salaries of the police officers or judge are in any way dependent upon the collection of these assessments. The judge's comment about the fund is not reasonably understood as implying otherwise.

The argument defendant presents in support of the issue raised in Point II is not supported by the record. Contrary to defendant's claim, the judge of the municipal court actually found the State's evidence adequate to support defendant's conviction without reference to the Alcotest result. Although the municipal court judge initially suggested that his finding of guilt was based solely on the Alcotest result, the prosecutor and defense counsel asked the judge to clarify this aspect of his oral decision. Complying with that request, the court carefully reviewed the evidence relevant to the accident, defendant's performance on the heel-to-toe test and the odor of alcohol and, on that basis, concluded that this evidence "show[ed] that [defendant] was under the influence of alcohol." Judge Reed reached the same conclusion after the trial de novo. For the reasons stated in his written opinion, we conclude that the credible evidence of defendant's intoxication, without reference to the Alcotest results, was wholly adequate to establish the essential elements essential for a conviction under N.J.S.A. 39:4-50 without reference to the Alcotest results. Accordingly, there is no basis for this court to disturb the determination. State v. Johnson, 42 N.J. 146, 161-62 (1964).

The issue raised in Point V of defendant's brief is also relevant to the validity of a conviction based on his conduct indicative of intoxication. Defendant argues that Officer Kearney's testimony about the HGN test was not admissible under this court's decision in State v. Doriguzzi, 334 N.J. Super. 530, 546 (App. Div. 2000). We agree. Nonetheless, because neither judge relied upon the HGN evidence the error clearly did not lead to an unjust result and is harmless beyond a reasonable doubt. R. 2:10-2; State v. Ingram, 196 N.J. 23, 49 (2008). The only sobriety test the municipal court judge considered was defendant's performance on the heel-to-toe test, and Judge Reed expressly stated that he would not consider Officer Kearney's testimony about the HGN test.

Given our conclusion that defendant's conviction may be affirmed without reliance upon his Alcotest result, it is not necessary to address his objections related to a conviction based on the Alcotest report of a blood alcohol count of .10. Even if defendant's conviction were not so supported, however, he would not be entitled to relief based on the Alcotest reading.

The subpoena referenced in Point IV of defendant's brief was to compel the testimony of a member of the New Jersey State Police who testified during the hearings on the reliability of the Alcotest. See State v. Chun, 194 N.J. 54, cert. denied, Chun v. New Jersey, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008) (discussing the hearings and upholding the reliability of the test). Defense counsel's proffer was as follows. In counsel's view, the judge had indicated that Chun did not require an officer to "stare at [the defendant] for [twenty] minutes." He represented that the witness he had subpoenaed would establish that the judge was mistaken.

The municipal court judge concluded that the testimony was not necessary. We agree. This case was decided after Chun and the question of the adequacy of the officer's observation of the defendant during the twenty minutes immediately preceding the test was one for the court to decide based on the law and the evidence. For that reason, as well as those expressed in Judge Reed's written opinion, we reject the claim that the judge erred by declining to enforce this subpoena.

We turn to consider defendant's claim that his Alcotest result was admitted without a proper foundation. The argument presented in Point VI is based on the adequacy of the State's evidence that defendant was observed with sufficient attention and for a sufficient duration to permit admission of the Alcotest result.

In Chun, the Court explained:

[T]he operator must observe the test subject for [a] required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.

[194 N.J. at 79.]

The State must establish compliance with the observation procedure by clear and convincing evidence. State v. Ugrovics, 410 N.J. Super. 482, 489-490 (App. Div. 2009).

As the facts set forth above indicate, the video-recording and Officer Kearney's testimony establish that defendant was in Officer Kearney's immediate presence before and during the twenty minutes preceding the Alcotest. The municipal court judge and Judge Reed were convinced that the State met its burden of establishing that the pre-test observation was adequate. Judge Reed explained:

Given that [d]efendant was sitting handcuffed and remained in Officer Kearney's presence in the booking room, it seems unlikely that he could have surreptitiously regurgitated, imbibed alcohol, or placed or concealed something in his mouth, the harms that the 20 minutes of observation is designed to prevent. (Sight is not the only sense implicated by observation in such circumstances.)

We add that Judge Reed's reference to senses other than sight also supports a finding that defendant had not regurgitated during the relevant period.

The common sense inference compelled by Officer Kearney's testimony about his proximity to and interaction with defendant throughout the relevant period is that there was no consumption or regurgitation. Defendant, who testified at trial, said nothing to suggest that the inference was invalid.

Defendant also contends, for the first time on appeal, that there was no evidence that Officer Kearney removed mobile telephones and portable electronic devices from the Alcotest room before conducting the test. Because the issue was not raised in the municipal court or before Judge Reed and because defendant's conviction is sustainable without reference to the Alcotest result, we decline to address the issue.

The argument raised in Point VII regarding defendant's sentence was not raised below, and the legal argument is not supported by the authorities cited. Accordingly, we will not address the claim. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

 
Affirmed.

Defendant was also charged with failure to stop or yield, N.J.S.A. 39:4-144. The municipal court dismissed that charge on the ground that "the failure to stop or yield is part of the drunk driving."

The time of the day noted above is reflected on the video-recording which was played at trial and admitted into evidence. Each reference to the time of day included in this opinion is based on either the video-recording or Officer Kearney's testimony at trial.

(continued)

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A-4052-08T4

February 11, 2010