STATE OF NEW JERSEY v. WILLIAM N. ADU-TEI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5422-08T4A-5422-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM N. ADU-TEI,

Defendant-Appellant.

________________________________

 
 

Argued August 10, 2010 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 10-09.

Mitchell E. Ignatoff argued the cause for appellant.

Jordan S. Goldsmith, Assistant Prosecutor, argued the cause for respondent (Edward J. De Fazio, Hudson County Prosecutor, attorney; Mr. Goldsmith, on the brief).

PER CURIAM

Defendant, William N. Adu-Tei, appeals his conviction of driving while intoxicated ("DWI"), N.J.S.A. 39:4-50, arising out of his arrest following a motor vehicle accident on the New Jersey Turnpike. We affirm.

The record indicates the following. At roughly 4:20 a.m. on July 13, 2008, a red sport-utility vehicle ("SUV") struck a tractor-trailer driven by Daniel Denofa on the New Jersey Turnpike, near Secaucus. The SUV crossed a solid line which separated the Turnpike from an exit ramp for a rest stop moved into the lane where Denofa had been driving, and struck Denofa's trailer on the side. After the impact, Denofa slowly brought his truck to a stop about an eighth of a mile farther along the Turnpike. The SUV proceeded to where the truck had stopped. Two occupants were in the SUV at the time.

In his testimony at defendant's trial in municipal court, Denofa recalled that, after the collision, one of the two men got out of the driver's side of the SUV and approached him. The man, whom Denofa initially presumed to be the driver, began conversing with Denofa. Denofa testified that the man did not appear to be under the influence of alcohol, but that "he was on something" and seemed to be anxious to leave the scene of the collision. At trial, Denofa identified defendant in the courtroom as the man he had spoken with after the collision.

After conversing briefly with the man who had approached him, Denofa called 9-1-1. Denofa was carrying U.S. Mail as his cargo and thus was required to report whenever he stopped his truck. According to Denofa, a State Trooper arrived shortly thereafter.

Trooper Thomas Krebs, who also testified for the State at the municipal trial, responded to Denofa's 9-1-1 call that night. Upon arriving at the scene of the collision, Trooper Krebs approached the passenger side of the SUV. He spoke to defendant and the second occupant of the SUV, William Adams, while the two men were seated in the vehicle.

According to Trooper Krebs, Adams was seated at the time in the driver's seat and defendant was seated in the passenger's seat. As Trooper Krebs recalled it, Adams told him that defendant had been driving the SUV at the time of the collision, but that the two men had then switched seats so that Adams could move the SUV out of the lane and onto the shoulder.

Defendant who Trooper Krebs claimed appeared to be sleeping as he questioned Adams then woke up and informed the Trooper that he, not Adams, had been driving at the time of the collision. Trooper Krebs noticed that the interior of the SUV smelled like alcohol, and that defendant appeared to have been drinking.

Trooper Krebs requested that defendant exit the SUV and asked him again whether he had been driving at the time of the collision. In response, defendant reaffirmed that he was indeed the driver.

Trooper Krebs then performed various field sobriety tests on defendant. Defendant was unable to complete the tests in a satisfactory manner. Consequently, Trooper Krebs placed defendant under arrest. Trooper Krebs thereafter administered a Breathalyzer test, which produced a blood-alcohol rating for defendant of .21%. Trooper Krebs testified that defendant did not say to him at any time after his arrest that he was not the driver of the SUV.

Defendant was subsequently charged with driving while intoxicated, N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; and making an unsafe lane change, N.J.S.A. 39:4-88b. It was defendant's second citation for DWI.

Defendant, who is the owner of the SUV, presented a different version of the facts at trial. He admitted that he was intoxicated at the time of the collision. He stated that he had been out celebrating his birthday, and that he had deliberately set out that night to get "hammered."

According to defendant, due to his own drunken state, he had given Adams the keys to his SUV before the accident so that Adams could drive them home. Defendant claimed that he had been asleep in the passenger seat at the time of the collision.

Defendant testified that he falsely had told Trooper Krebs that he had been driving at the time of the collision because he knew that Adams had a suspended license at that time and because Adams had asked him to pretend that he had been at the wheel of the SUV.

Defendant contended that Adams, who did not testify at trial, was his "best friend" at the time of the Turnpike accident. However, defendant stated that Adams has since left New Jersey, and he had not tried to contact him. Defendant asserted that he only has the phone number for Adams' mother, and that she would most likely decline to divulge his whereabouts.

Defendant stated at trial that when he spoke to Trooper Krebs at the time of the incident, he "wasn't really thinking" about the possibility of being arrested for driving while intoxicated. He testified that he was "somewhat" able to formulate coherent thoughts at the time of the incident. He testified that he did not tell the Trooper that he was not driving the car at the time of the collision, because he was "trying to protect Mr. Adams."

Defendant also testified that he again fell asleep in the police car until they arrived at the station house. Once there, he took the Breathalyzer test, was put into a holding cell, and went back to sleep. He recalled waking up the next morning and still feeling intoxicated. He said that, when he woke up in the holding cell, he did not tell anyone that he had not been driving the car because there was no one there to tell except for an unidentified woman who let him out. He explained that he did not say anything the next day about not having been the driver because he had already been charged and did not feel that it would make a difference to speak up.

After sifting through the proofs, the municipal judge found that the State had proven beyond a reasonable doubt that defendant, who was admittedly drunk at the time, was the driver of the SUV. The judge largely based her finding on the erratic driving of the SUV which indicated that the driver was intoxicated and the Trooper's testimony, which she specifically found credible.

The municipal judge did not believe defendant's testimony that he had pretended to be the driver so that his friend Adams would not be caught driving without a license. She noted that "[i]t doesn't make sense" that defendant would be willing to take the severe penalty that would come from a second DWI offense, just so that Adams would not have to suffer a milder penalty for driving with a suspended license.

The municipal judge consequently found defendant guilty of driving while intoxicated and careless driving. The judge ruled that the unsafe lane change violation was subsumed into the careless driving offense. With respect to the DWI offense, the judge imposed a $600 fine, $33 in court costs, a $50 Violent Crimes Compensation fee, a $75 Safe Streets penalty, and a $200 mandatory drunk-driving surcharge. Defendant was also sentenced to thirty days of community service and forty-eight hours at a program with the Intoxicated Driving Resource Center. The court suspended his driver's license for two years consecutive to any suspension that he was then serving. The payment of fines was stayed pending review by the Law Division.

On de novo review, the Law Division sustained the conviction. The Law Division judge noted that Denofa may have incorrectly identified defendant at trial as the person with whom he spoke after the accident for a number of reasons: (1) because defendant and Adams are both African-American and Denofa is not; (2) because of the early hour of the incident and the time elapsed between the incident and the trial; and (3) because of the suggestibility of defendant sitting next to defense counsel at trial. The Law Division further noted that it "stretches the limits" of credulity for defendant to assert at trial that Adams was the driver, especially since defendant had twice told Trooper Krebs that he had been the driver.

Given the inconsistencies in Denofa's testimony and the manifest incredibility of defendant's testimony, the Law Division agreed with the municipal judge that Trooper Krebs had provided the most credible account of the incident. Accordingly, the Law Division concluded that defendant had been the driver of the SUV at the time of the collision, and upheld the municipal judge's findings of his guilt.

On appeal, defendant argues that the State failed to prove his commission of the DWI offense beyond a reasonable doubt. He contests the State's theory that he and Adams had switched places in order to make it appear that Adams was the driver. He submits that it is unlikely that a person with a blood-alcohol rating of .21% could have had the mental capacity to yield the wheel of the SUV deliberately to Adams after the accident, in a concerted effort to evade a second DWI conviction. Defendant also stresses that Denofa at least initially had perceived that Adams, not defendant, had emerged from the driver's side of the SUV.

As a second point on appeal, defendant argues that the law should be construed to afford him a right to a jury trial for a second DWI offense, and that the penalties associated with such an offense are of a sufficient magnitude to mandate trial by a jury, not a judge.

Our standard of review is limited. In general, we will not disturb a municipal or a Superior Court trial judge's findings of fact, so long as those findings have substantial evidential support in the record. State v. Locurto, 157 N.J. 463, 470 (1999); State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005). That principle of deference is especially warranted as to assessments of the credibility of the witnesses, whom the municipal judge saw testify first-hand.

In particular, we must "'give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We set aside the factfinder's determination only where we are "'thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.'" Ebert, supra, 377 N.J. Super. at 8 (quoting Johnson, supra, 42 N.J. at 162).

The record here on the sole disputed and pivotal issue the identity of the SUV driver readily withstands this review standard. Defendant has not denied that he twice stated to Trooper Krebs that he had been driving the SUV. Those admissions alone would be enough to support the municipal judge's findings. Defendant's present assertion that he had lied to the Trooper to protect Adams is not corroborated, and the trier of fact had ample reason to be skeptical of that revisionist claim. In sum, defendant has failed to meet his heavy burden to cast aside the trial judge's findings. Locurto, supra, 157 N.J. at 474. His conviction for DWI, and the related sanctions that were appropriately imposed, are hereby affirmed. The same is true as to the careless driving violation.

Defendant's second point, alleging an improper deprivation of a jury trial, is without sufficient merit to warrant extended discussion in this written opinion. R. 2:11-3(e)(2). There was no adverse consequence to defendant who did not face a jail term exceeding six months of sufficient constitutional magnitude to require his DWI trial to be heard by a jury rather than by a judge. The law is well established in our State that no right to a jury trial attaches in cases like this. See, e.g., State v. Owens, 54 N.J. 153 (1969); State v. Federico, ____ N.J. Super. ____, ____ (App. Div. 2010) (slip op. at 8-11).

 
The judgment of conviction is affirmed. The stay of defendant's sentence pending appeal shall expire twenty days from the date of this opinion.

(continued)

(continued)

2

A-5422-08T4

 

August 24, 2010