STATE OF NEW JERSEY v. JERMAINE BURNS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5033-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE BURNS,

Defendant-Appellant.

___________________________________________

April 28, 2011

Submitted March 22, 2011 - Decided

Before Judges Graves and St. John.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Municipal Appeal No. 010-07-10.

Jermaine Burns, appellant pro se.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David Malfitano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Jermaine Burns, appeals, pro se,1from a judgment of conviction, finding him guilty of refusal to submit a breath sample. N.J.S.A.39:4-50.2 The court imposed a seven-month suspension of his driving privileges. N.J.S.A.39:4-50.4(a). We affirm.

At the motion to suppress hearing, Officer Michael Koval of the Port Authority Police testified that while traveling westbound behind defendant's vehicle on the upper level of the George Washington Bridge, he observed defendant fail to maintain his lane, swaying from lane to lane and crossing over the lane dividing lines, causing other vehicles to move out of defendant's way. After stopping defendant's vehicle, Koval detected an odor of alcohol as he spoke to defendant while defendant remained in his car. Koval's observations of defendant included "bloodshot eyes; slurring; and hand movement slow, shaky- getting his driver's license out." Koval directed defendant to go to the rear of defendant's vehicle to perform field sobriety tests. Koval observed defendant to be unsteady, swaying from side to side, leaning on his car for support, as he walked to the rear. Defendant failed the walk-and-turn test and twice failed the finger dexterity test. At that point, defendant was placed under arrest for driving while intoxicated. Defendant testified, as explanation, that he is a diabetic and that all of the above physical manifestations were a result of that condition.

Defendant was charged in Fort Lee with driving while intoxicated, N.J.S.A.39:4-50 (DWI); refusal to submit a breath sample, N.J.S.A.39:4-50.2 (refusal statute); and careless driving, N.J.S.A.39:4-97. He entered a conditional plea to refusal to submit a breath sample, subject to his right to appeal from the denial of his suppression motion. That right of appeal was explained to defendant by the municipal court judge as follows:

THE COURT: Now, the entry of a plea of guilty to refusing to take the breathalyzer test is a conditional plea, and that is what that means is if you decide to appeal the earlier part of my case that there was no probable cause to stop the car or to request that you take the breathalyzer test, then, obviously, if there is no probable cause to stop you and ask you to take the test, then the plea of guilty to not taking the test, if a higher court judge decides that, that plea of guilty will be set aside. Do you understand that?

MR. BURNS: Yes.

Upon the State's motion, the municipal court judge dismissed the careless driving and the DWI, based upon an independent blood test obtained by defendant.

Defendant appealed, contending, among other things, that the arresting officers did not have probable cause to stop him and to request that he submit to a breath test. Following a de novo hearing in the Law Division, the judge found defendant guilty of violating the refusal statute, but stayed the imposition of sentence pending the outcome of this appeal.

On appeal, defendant raises the following arguments:

1 THE CANADIAN AMPOULE TESTING CERTIFICATES ARE NOT SELF-AUTHENTICATING, AND THE STATE CANNOT MEET ITS BURDEN OF ESTABLISHING THE SCIENTIFIC RELIABILITY OF THE BREATHALYZER, THEREFORE, MR. BURNS CANNOT BE CHARGED WITH REFUSAL.

2 MR. BURNS MUST BE FOUND NOT GUILTY DE NOVO OF THE REFUSAL CHARGE BECAUSE THE STATE FAILED TO ESTABLISH THAT MR. BURNS WAS READ THE STANDARD STATEMENT AS MANDATED BY THE OFFICE OF THE ATTORNEY GENERAL.

3- THE COURT BELOW ERRED IN FAILING TO SUPPRESS EVIDENCE AS THE FRUITS OF AN UNLAWFUL MOTOR VEHICLE STOP.

As both judges noted in their respective opinions, the evidence supported the factual findings. Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid.(citing State v. Johnson, 42 N.J.146, 157 (1964)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid.(citingJohnson, supra, 42 N.J.at 161-62).

Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. Ibid.(citing State v. Locurto, 157 N.J.463, 474 (1999)). Furthermore, when the Law Division agrees with the Municipal Court, the two-court rule must be considered. "Under 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." Locurto, supra, 157 N.J.at 474 (citingMidler v. Heinowitz, 10 N.J.123, 128-29 (1952)).

Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea. State v. Crawley, 149 N.J.310, 316 (1997). Pertinent here, Rule7:6-2 authorizes a defendant to "enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion." In the event a defendant prevails on appeal, he or she "shall be afforded the opportunity to withdraw the guilty plea." Ibid. Here, defendant's plea was unconditional, subject only to his motion to suppress.2 Defendant did not preserve, as is required under Rule7:6-2(c), the issues of the scientific reliability of the breathalyzer or the reading of the standard refusal statute statement. Nevertheless, we address the merits.

Defendant first asserts that the State did not establish the reliability of the breathalyzer test. The municipal court judge and the Law Division judge did find that defendant was read the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor vehicle--N.J.S.A.39:4-50.2(e) and that he twice refused the test. Officer Koval testified that he read verbatim the first part of the standard statement in its entirety. Defendant was asked if he understood the statement, and he responded that he understood. Koval then asked defendant whether he would submit to a breath test, and he answered, "No." Koval testified that he read verbatim the second part of the refusal statement to defendant. Koval asked defendant whether he understood the second part, and defendant responded that he understood. Defendant was asked if he would submit to the breath test, and he responded, "No." The Law Division judge also found that the reliability or ultimate admissibility of the breathalyzer test is not a condition precedent to a refusal conviction, citing, by analogy, In the Matter of John Ferris, 177 N.J. Super. 161 (App. Div. 1981), certif. denied, 87 N.J.392, (1981). In Ferris, the defendant asserted that the State must prove that a qualified operator of the breathalyzer was available at the time of the test request. We disagreed, holding that such a requirement would infer a prerequisite to suspension in addition to those specified in the refusal statute. Id.at 166. Here, a requirement that the State prove that the results of the test, if taken, would be admissible, is not a prerequisite specified in the refusal statute and need not be so established as an element to obtain a conviction under the refusal statute.

To secure a conviction under the refusal statute, the State is required to prove "that (1) the arresting officer had probable cause to believe that defendant had been operating a vehicle while under the influence of alcohol; (2) defendant was arrested for driving while intoxicated; and (3) defendant refused to submit to a breathalyzer test." State v. Badessa, 185 N.J.303, 312 (2005) (quoting State v. Wright, 107 N.J.488, 490 (1987)). We, therefore, focus on the proofs concerning probable cause for the stop and the belief that defendant was driving while under the influence of alcohol.

In reaching the conclusion that there was sufficient proof in the municipal court record to support the stop and the arrest, the municipal court judge and the Law Division judge found credible the testimony by Officer Koval. Each concluded, beyond a reasonable doubt, based upon defendant's erratic driving, the odor of alcohol, failure to perform the field sobriety tests, and swaying while walking, that Officer Koval had probable cause to believe that defendant was driving his vehicle while under the influence of intoxicating liquor.

"A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Carty, 170 N.J.632, 639-640, modified by174 N.J.351 (2002) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Locurto, 157 N.J. 463, 470 (1999)).

Our review of the record convinces us that the municipal court judge and the Law Division judge were correct in finding that there was sufficient credible evidence in the record to conclude that, under the circumstances, Koval had a reasonable and articulable suspicion that defendant had violated the motor vehicle laws and, therefore, was justified to stop defendant's vehicle. We also conclude that Koval had probable cause to believe that defendant was operating his motor vehicle while under the influence of intoxicating liquor. We have no warrant to reverse determinations of credibility or other findings of a trial court where they could reasonably have been reached on sufficient credible evidence in the record. State v. Breslin, 392 N.J. Super. 584, 589 (App. Div. 2007) (citing State v. Johnson, 42 N.J.146, 162 (1964)).

A

1 Defendant was represented by counsel in the municipal court and in the Law Division.

2 This condition was not required, as the denial of a motion to suppress is appealable as of right under Rule 7:5-2(c)(2).