STATE OF NEW JERSEY v. ALEXANDER GLADNEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5186-08T45186-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXANDER GLADNEY,

Defendant-Appellant.

________________________________________________________________

 

Argued May 3, 2010 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 03-2009.

Keyur Shah argued the cause for appellant (Margolis Edelstein, attorneys; Mr. Shah, on the briefs).

Patrick D. Isbill, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Isbill, of counsel and on the brief).

PER CURIAM

Defendant, Alexander Gladney, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). Defendant was sentenced to a $250 fine, $33 costs, twelve hours intoxicated driver's resource center, and a three-month driver's license suspension. Defendant argues:

I. THE COURT BELOW FAILED TO APPLY THE TOTALITY OF THE CIRCUMSTANCES TEST WHICH, WHEN APPLIED, REVEALS THE OFFICER DID NOT HAVE PROBABLE CAUSE TO ARREST THE PETITIONER.

A. The admission of the consumption of one beer does not establish probable cause.

II. THE STATE FAILED TO PRODUCE ADEQUATE EVIDENCE THAT THE PETITIONER COMMITTED THE DRIVING WHILE UNDER THE INFLUENCE OFFENSE BEYOND A REASONABLE DOUBT.

III. THE COURT BELOW MISAPPLIED THE PRINCIPLES AND FAILED TO DISTINGUISH THE FACTS IN THE RELEVANT CASE LAW.

We reject these arguments and affirm.

At about 3:00 a.m. on July 4, 2008, Officer Matthew Rulli of the Merchantville Police Department, while on routine patrol, observed defendant driving his vehicle. In his testimony before the municipal court, Rulli described what he saw thusly:

I observed him driving westbound towards Center Street swerving over the double yellow line. When he got to the intersection of Center Street and Maple Avenue, he -- he stopped for a second into the middle of the intersection, proceeded to make a right, went northbound on Center Street. There was another red light saying no turn on red where he made a wide turn without stopping. He came to a -- he slowed down, didn't stop completely, and made a right on red.

Rulli effected a motor vehicle stop. He observed defendant's eyes to be "watery" and "bloodshot," and he detected an odor of alcohol emanating from defendant's breath. When he asked defendant for his credentials, it "took him several minutes to get them." Defendant was looking through a series of items, and had difficulty identifying the documents that were requested. At one point, he handed Rulli the title to the vehicle and then started handing him a different document. Rulli pointed out some of the credentials, helping defendant determine which were the proper documents. Defendant produced a driver's license and registration, but was unable to produce a valid insurance card.

Rulli asked defendant whether he had been drinking and where he was coming from. Defendant said he had consumed about two drinks (later described through further testimony as wine) at a club in Philadelphia. Defendant told Rulli that the reason for his erratic driving was that he was lost and he was looking for his GPS device.

Rulli subjected defendant to several roadside sobriety tests, namely the sway test, the walk-and-turn test, and the one-legged stand test. Rulli described deficiencies in defendant's performance of the tests. Although the municipal judge found defendant's performance deficient, the Law Division judge did not. Based upon his viewing of a videotape depicting the tests, he found that defendant performed them satisfactorily.

Rulli acknowledged that defendant was able to communicate effectively, understood his questions, gave responsive answers, and did not slur his speech. He described defendant as calm and cooperative, although he said as the events progressed defendant at times became agitated and nonresponsive.

When asked whether he formed an opinion as to whether defendant's ability to operate a motor vehicle was impaired as a result of the consumption of alcohol, Rulli answered in the affirmative.

Defendant was placed under arrest and transported to the stationhouse. He refused to submit to a breath test. He was charged with the refusal violation, N.J.S.A. 39:4-50.2. He was convicted of that offense in municipal court. However, the Law Division judge found the evidence insufficient to support a conviction and acquitted defendant of the refusal charge.

Defendant did not dispute the validity of the initial stop based upon the observed motor vehicle violations. However, he contended that the police lacked probable cause to arrest him for DWI and moved to suppress evidence resulting from the arrest. Rulli and another officer testified in the municipal court at the suppression hearing. The municipal judge denied the motion, finding that the police had sufficient probable cause to arrest for DWI. Defendant did not testify or offer any witnesses.

The municipal judge then heard further evidence, mostly pertaining to the refusal charge. At the conclusion of the trial, the municipal judge found that the evidence established proof beyond a reasonable doubt of DWI, refusal, and the two other motor vehicle offenses we previously mentioned. Supra, n.1.

Defendant appealed to the Law Division, contesting the denial of his suppression motion as well as his conviction. On de novo review, Judge Cook heard oral argument based upon the record developed in the municipal court, after which he issued a comprehensive written opinion dated May 8, 2009. He denied the suppression motion, finding sufficient evidence to establish probable cause that defendant was driving while intoxicated and therefore subject to arrest for DWI. Further, relying primarily upon defendant's admitted alcohol consumption, the fact that it was 3:00 a.m. and defendant had been drinking at a club, and the erratic driving observed by Rulli, he found that it was "establish[ed] by credible evidence, beyond a reasonable doubt, that [defendant] was operating a motor vehicle under the influence of intoxicating liquor." In doing so, the judge cited State v. McGeary, 129 N.J. Super. 219, 222 (App. Div. 1974) (quoting State v. Emery, 27 N.J. 348, 355 (1958)), for the proposition that "it is not a prerequisite to a conviction of driving while under the influence of intoxicating liquor that the accused be absolutely drunk, in the sense of being sodden with alcohol; it is sufficient for the finding of guilty of DWI that the 'offender has imbibed to the extent that his physical coordination o[r] mental faculties are deleteriously affected.'"

The scope of appellate review of a de novo conviction by the Law Division following a municipal court appeal is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). In Locurto, the Court reiterated the limited standard of appellate review as previously enunciated in the seminal case on the subject of State v. Johnson, 42 N.J. 146, 161-62 (1964). Id. at 470-71. That standard applies to the trial court's determination of facts, "whether underlying or ultimate." Id. at 470.

The Court admonished that the reviewing court is constrained to accept the trial court's factual findings if supported by substantial evidence "even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Id. at 471. In this regard, the Court further instructed: "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid. An appellate court may only reverse a factual finding, whether underlying or ultimate, if it is "clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Ibid. Only under such circumstances, may an appellate court make its own findings and conclusions as if it were deciding the matter de novo. Ibid. This restrictive standard requires that for a reviewing court to reject the trial judge's findings, there "must exist in the reviewing mind . . . a definite conviction that the judge went so wide of the mark, a mistake must have been made." Ibid.

Our review, of course, is of the findings of the Law Division, not the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). Judge Cook took into account evidence that was favorable to plaintiff, including that he performed satisfactorily on the roadside sobriety tests. However, the judge attributed greater weight to other evidence that supported a finding that defendant's ability to operate a motor vehicle was deleteriously affected. That evidence was primarily the erratic driving, which consisted of not merely a single and isolated occurrence, but several in succession, which Rulli observed and described.

The record also contained other evidence supporting an impaired condition. Although the odor of alcohol on defendant's breath was nothing more than an affirmation of defendant's acknowledgement that he had consumed some intoxicating liquor, his bloodshot and watery eyes were indicative of more than minimal consumption. His difficulty in identifying and producing driving credentials over a fairly extended period of time also indicated an impaired condition. And, Rulli rendered an opinion that defendant's condition was impaired.

Judge Cook, as the factfinder, had the right to consider the totality of the evidence, both favorable and unfavorable to defendant, and make an ultimate factfinding as to whether defendant was driving while intoxicated within the meaning of the DWI statute.

In that regard, we agree with Judge Cook's assessment of our well established jurisprudence describing the meaning of "intoxicated" in the DWI context. The phrase "under the influence of intoxicating liquor" prescribes "a general condition, short of intoxication," as a result of which the driver of a motor vehicle is "said to be so affected in judgment or control as to make it improper for him [or her] to drive on the highways." Johnson, supra, 42 N.J. at 165. The phrase embraces not only

the well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors and which tends to deprive him [or her] of that clearness of intellect and control of himself [or herself] which he [or she] would otherwise possess.

[Ibid. (quoting State v. Rodgers, 91 N.J.L. 212, 215 (E. & A. 1917)).]

This is a close case. However, in light of the relatively modest degree of impairment required to satisfy the DWI statute and in light of our exceedingly narrow scope of review, we are satisfied that Judge Cook's findings are supported by substantial credible evidence in the record, and we will not disturb them on appeal.

 
Affirmed.

Defendant's notice of appeal also references the other motor vehicle offenses of which he was convicted, namely making an improper turn at a traffic signal, N.J.S.A. 39:4-115a, and failure to maintain his lane, N.J.S.A. 39:4-88b. However, he has made no arguments suggesting that those convictions should be reversed, and, indeed, he concluded the procedural portion of his appellate brief by stating that following his de novo conviction of all of the offenses in the Law Division, he "filed a timely appeal to this court of the driving while intoxicated . . . conviction." Therefore, the appeal is deemed to be only from the DWI conviction.

A horizontal gaze nystagmus test (HGN) was also performed, but was later ruled inadmissible by the Law Division judge and was not part of the ultimate factfinding upon which the decision was rendered in this case. See State v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000).

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A-5186-08T4

May 18, 2010