STATE OF NEW JERSEY v. DAVID SCHLOSSMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2219-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID SCHLOSSMAN,

Defendant-Appellant.

____________________________________________

November 15, 2011

Submitted March 7, 2011 Decided

Before Judges A. A. Rodr guez and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2009-042.

Theodore Sliwinski, attorney for appellant.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David Schlossman was convicted in Millburn Municipal Court of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and failing to exhibit required credentials, N.J.S.A. 39:3-29. He appealed to the Law Division and was convicted again. We affirm.

This is a summary of the State's proofs. Millburn Township Officer Lorenzo Graham testified that during the early morning hours of November 15, 2008, he was traveling on Parsonage Hill Road. He noticed a tow truck preparing to remove a Mercedes, which had struck a utility pole on the eastbound side of the road. It was a cool night. There was a light drizzle, and the road was wet.

As Graham approached the scene of the accident, he saw defendant standing next to the Mercedes. Based on the position of the vehicle, it appeared to Graham that defendant was traveling westbound, crossed the middle lane, and struck the utility pole.

Graham spoke to defendant. In doing so, Graham noticed that defendant's breath smelled of alcohol, his speech was slurred, and his eyes were watery and red. In addition, defendant s clothes were a little bit disheveled. Defendant stated to Graham that the accident occurred because his vehicle slipped on wet leaves. However, Graham saw no leaves on the side of the road that defendant was traversing.

Defendant admitted that the accident occurred as he was driving home from a tavern, where he had a few martinis. Because Graham suspected that defendant was intoxicated, he administered field sobriety tests, specifically, the one-legged standing test, the walk-and-turn test and the horizontal gaze nystagmus (HGN) test. Defendant was unable to perform these tests successfully.

At trial, a video from Graham s police car dashboard camera was played. It captured the field sobriety tests. Graham placed defendant under arrest and took him to the police station.

Millburn Township Officer Gilbert Tavares conducted a breathalyzer test around 5:00 a.m., which defendant did not pass. Tavares testified that at the time of the test, defendant s eyes were bloodshot and watery, his clothes were "messed up", and he spoke and moved slowly. Tavares could smell alcohol on defendant's breath.

Herbert Leckie testified as an expert witness for the defense. He asserted that according to the curriculum developed by the National Highway Traffic Safety Administration (NHTSA), defendant should have been instructed to look down at his feet as he executed the walk-and-turn test. Leckie also testified that the NHTSA standards require that the field sobriety tests be conducted on a flat, non-slippery and dry surface in order to be reliable. Leckie opined that the conditions present when the field sobriety tests were administered to defendant could have diminished their reliability. He also testified about deficiencies in the administration of and equipment used for the breathalyzer test.

After a trial de novo, based on the trial record, Judge Ramona Santiago found defendant guilty of both charges. She did not rely on the results of a breathalyzer test administered to defendant, but based her decision on the observation of two police witnesses. She imposed the same sanctions as the municipal court, i.e., payment of a $400 fine; $33 court costs; $75 SNSF assessment; a $50 VCCB penalty; and a $200 DWI surcharge. The judge also imposed completion of twelve hours at an Intoxicated Driver Resource Center and a three-month driver's license suspension. Judge Santiago denied a motion to stay the driver's license suspension, but stayed the other sanctions.

Defendant appeals contending:

THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO PROVE THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT OF DWI.

THE FIELD SOBRIETY TESTS AND THE OBSERVATIONAL EVIDENCE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE DEFENDANT WAS GUILTY OF DWI.

THE HGN TEST WAS ERRONEOUSLY GIVEN TO THE DEFENDANT.

THE DEFENDANT'S WALK AND TURN PSYCHO-PHYSICAL TEST WAS ERRONEOUSLY ADMINISTERED.

THE FIELD SOBRIETY TESTS WERE NOT RELIABLE EVIDENCE TO PROVE THAT THE DEFENDANT WAS INTOXICATED.

THE DEFENDANT'S CONVICTION FOR DWI MUST BE REVERSED BECAUSE OFFICER GRAHAM FAILED TO OBSERVE ANY STANDARD PROCEDURES DURING THE FIELD SOBRIETY TESTING.

THE DEFENDANT'S DWI CONVICTION MUST BE REVERSED BECAUSE THERE WAS A LACK OF EVIDENCE TO SUBSTANTIATE THE CONVICTION.

We reject these arguments, which are essentially a challenge to Judge Santiago's findings.

Our standard of review is well-settled. An appeal from the municipal court to the Law Division is reviewed de novo based on the trial record. The Law Division makes a new decision on its own, although it gives due regard to the municipal judge's opportunity to view the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). Because the Law Division judge is not in a position to judge the credibility of witnesses, deference is due to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999). See R. 3:23-8(a) on criminal trials de novo.

Our review is limited to determining whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. Johnson, supra, 42 N.J. at 162. But like the Law Division, the Appellate Division is not in a good position to make findings. Locurto, supra, 156 N.J. at 471. We may not "weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We also must defer to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Our review of a municipal court conviction is "exceedingly narrow." Locurto, supra, 157 N.J. at 470. We will only determine whether the findings made by the trial court "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. Moreover, we must defer to the trial court's credibility determination because these "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." Locurto, supra, 157 N.J. at 474 (citing State v. Jamerson, 153 N.J. 318, 341 (1998)); Cerefice, supra, 335 N.J. Super. at 383. "[T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues." Locurto, supra, 157 N.J. at 474.

Judged against these standards, we conclude that there is ample evidence to support the conviction. The testimony of Graham and Tavares, which was credited by the Law Division judge, contained first-hand observations of defendant's demeanor. This demeanor was consistent with that of a person under the influence of alcohol. We have held that "[a] defendant's 'slurred speech, loud and abrasive behavior, disheveled appearance, red and bloodshot eyes and strong odor of alcoholic beverage on [his] breath [are] sufficient to sustain a conviction for DWI.'" State v. Kent, 391 N.J. Super. 352, 384 (App. Div. 2007) (citing State v. Cryan, 363 N.J. Super. 442, 455-56 (App. Div. 2003)).

A defendant's guilt of DWI can be proved by either "proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff d, o.b., 180 N.J. 45 (2004). Therefore, testimony of an officer who observes signs of a defendant's intoxication is sufficient to prove guilt of DWI beyond a reasonable doubt. See Johnson, supra, 42 N.J. at 166; see also State v. Pichadou, 34 N.J. Super. 177, 180-81 (App. Div. 1955). Here, the judge was not persuaded by the BAC evidence. However, based on observational evidence, she found beyond a reasonable doubt that defendant was under the influence. In Kent, the evidence of the defendant's BAC was excluded but the court determined that his "conviction remain[ed] valid by virtue of the arresting officer's independent observations of his apparent intoxication." Id. at 383.

Defendant also contends:

THE DEFENDANT'S DWI CONVICTION MUST BE REVERSE[D] BECAUSE THE LOWER COURT FAILED TO CONSIDER THE MOST IMPORTANT PIECE OF EVIDENCE IN THE CASE.

We disagree.

At the outset, we note that there is a dispute between the parties as to whether this issue is part of the record.1 Nonetheless, we address the issue, concluding that the argument is without merit anyway.

Defendant's argument is based on the following allegation. Defendant testified that he left a note in his Mercedes windshield. The note read:

Mercedes Benz will be towing car between 3:30 and 4 a.m.

Thank you. Hit wet leaves and skidded.

David Schlossman

According to defendant,

[t]his note was very important because it further proved that [defendant] was clearly not intoxicated.

. . . The note was clearly referred to in Officer Graham's narrative. The note was directly introduced into evidence.

The note is evidence that the defendant left the scene of the accident and went home. Defendant's home phone number was also listed on the note. This was a car accident. The defendant's vehicle crossed the double line and slid on wet leaves on the shoulder into a utility pole.

We are not persuaded that this note is evidence that defendant was not under the influence of alcohol while driving the Mercedes. Nor does it impeach in any way the officer's observation of defendant after the accident.

A

1 By a separate order we deny a reserved motion by the State to strike certain documents from appellant's appendix. M-6047-09.