STATE OF NEW JERSEY v. WILLIAM FARRELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5088-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM FARRELL,

Defendant-Appellant.

SubmittedJune 6, 2011 Decided July13, 2011

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4850.

George F. Surgent, attorney for appellant.

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William Farrell appeals from his conviction, after a trial de novo on the record pursuant to Rule 3:23-8, of driving while intoxicated (DWI), N.J.S.A. 39:4-50, careless driving, N.J.S.A. 39:4-97, failure to yield at a stop sign, N.J.S.A. 39:4-144, and backing in a street, N.J.S.A. 39:4-127. Because this was defendant's third conviction for DWI, he was sentenced to 180 days incarceration in the Passaic County Jail, of which ninety days may be served in an accredited in-patient program, fines of $1006 plus appropriate costs, assessments, and penalties, and a ten-year loss of driver's license. We affirm and hereby dissolve any stay of sentence which may have been previously issued.

Defendant was stopped on February 3, 2009, in the Township of Hawthorne. Officer Benjamin Veenema testified that at approximately 2:30 a.m. he noticed defendant operating his Toyota pickup truck, which seemed to lose traction and spin its wheels while proceeding through an intersection. Veenema followed defendant, who at the next intersection failed to yield at a stop sign. Defendant proceeded past the street where he apparently wanted to make a right-hand turn, changed direction, backed up, and then turned. When the officer activated his lights, he noted that defendant appeared to pull towards the left, into the oncoming lane, as if intending to stop there, as opposed to the right side of the roadway on the shoulder.

When Veenema approached the truck, defendant's window was down and both his hands were outside the window. Although he produced his driver's license, he told Veenema that his registration and insurance card were in the glove box, but did not attempt to produce them for the officer's inspection. The officer asked him to step out of the vehicle. As a result, defendant opened the door, planted both feet on the ground while using the car door for support, and pulled himself out of the car. Defendant could barely stand and smelled of alcohol. His face was flushed, his eyes watery and bloodshot, his movements slow and fumbling, and his speech slow and slurred. Although he initially denied having consumed alcohol, he eventually acknowledged having had one or two beers at a friend's house.

Defendant could not accomplish any of the psychophysicals. During the one-leg stand test, he stumbled backwards, and had to be kept from falling onto the ground by the second officer present at the scene. He did not complete the walk-and-turn test because he stumbled on his own feet and gave up. While stumbling, he at one point said, "you're right, you're right." Attempting the finger-to-nose test, he poked himself in the eye. Asked to recite the alphabet from E to O without singing, defendant commenced with the letter A but continued only to the letter D.

Defendant was driven to the Hawthorne police station where, as it developed, the Alcotest machine was not functioning. During the trip, he told the officers he was sorry, wanted to be released, denied being drunk, and said he was friends with the mayor and police who would take care of the problem for him. Once defendant arrived at North Haledon to be tested, he struck the keyboard with the blow tube and at another juncture spit into the machine. For reasons unrelated to the appeal, this test outcome could not be used either.

Defendant produced three witnesses at trial on September 9, 2009: Michael Kelly, his supervisor at the Borough of Fairlawn Water Department, who testified that defendant, a laborer, had been working twenty-four-hour shifts; Gary Aramini, a DWI consultant, who testified that the psychophysicals were not administered in compliance with the protocols established by the National Highway Safety Administration; and Maryellen Stiehl, a licensed clinical psychologist, who testified that defendant's demeanor when stopped could be the product of severe sleep deprivation. Stiehl acknowledged, however, that defendant did not tell her he had been drinking, but only that he had not slept for three days.

The municipal court judge found that although all of the witnesses were credible, the officer's testimony regarding defendant's driving, odor, admissions, and demeanor established he was guilty of DWI. The Law Division judge concurred that the officer's testimony with regard to defendant's odor of alcohol, intoxicated appearance, statements, and erratic driving, warranted the conclusion that defendant was under the influence.

The Law Division judge also specifically found, however, that defendant's work records did not support his claim that he was suffering from such extreme sleep deprivation that it would have had the same effect as extreme intoxication. Defendant's proofs were only that he had worked a twelve-hour shift on February 1, and eleven hours on February 2.

The judge observed that Veenema's description "in the totality bespeaks somebody who is under the influence of alcohol." Defendant admitted drinking "two to three beers, finishing that some half[-]hour before being stopped." The State established beyond a reasonable doubt that defendant was operating his motor vehicle under the influence of alcohol.

Defendant's only point on appeal is that the judge's decision was against the weight of the credible evidence. The proofs that defendant was under the influence of alcohol at the time of the stop were ample. Even assuming all of the witnesses were credible, as determined by the municipal court judge, the defense witnesses did not directly rebut the State's case.

For example, defendant did not acknowledge to the psychologist that he had been drinking the night of the stop nor did he explain that he had not been working twenty-four-hour cycles immediately before the stop. Similarly, even if the psychophysicals were not administered precisely in compliance with the protocol established for those tests, defendant's performance was so markedly at variance from the norm expected from a sober person as to render that expert testimony meaningless.

Our standard of review requires us to assess whether there was "sufficient credible evidence" in the record to uphold the Law Division's findings. State v. Johnson, 42 N.J. 146, 162 (1964). "[I]t [is] improper for [us] to engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999).

Clearly, there was sufficient credible evidence in the record to uphold the Law Division's finding. The proofs were ample, commencing with the officer's first observations of defendant, and were unrefuted by any of defendant's witnesses.

A