STATE OF NEW JERSEY v. ZBIGNIEW P. PIEKARZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6030-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZBIGNIEW P. PIEKARZ,

Defendant-Appellant.

___________________________________

August 9, 2011

Submitted July 19, 2011 - Decided

Before Judges R. B. Coleman and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 2-10.

Greggory M. Marootian, attorney for appellant.

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent

(Noelle V. Fiorentino, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Zbigniew Piekarz appeals his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after a trial de novo in the Superior Court. We affirm.

The only witness who testified at defendant's trial in the Cranford Municipal Court was patrolman Brian Wagner. He testified that he had been a police officer for almost seven years. He had completed training by the State Police for DWI investigations and had participated in about forty prior DWI investigations and arrests.

At about 11:00 p.m. on May 16, 2009, he was dispatched to the scene of a two-car accident on South Union Avenue. When he arrived, he first confirmed that no serious injuries had been caused. He observed that defendant's car had struck a car that was stopped perpendicularly in a driveway with its rear protruding into the roadway. The driver of that car was apparently picking up her daughter from the residence at that location when defendant's car struck it in the back and detached the rear bumper.

The officer approached defendant, who was still in his car up the street. He observed that defendant's eyes were glassy and bloodshot, and the officer smelled an odor of alcohol from inside the car. In response to the officer's questions, defendant said he was coming from a bar where he had "a couple" of beers. Defendant stumbled and swayed as he stepped out of his car, and subsequently as he walked to the back of the car. In closer contact, the officer smelled alcohol on defendant's breath, and defendant was slurring some words so that the officer could not understand them.

The officer attempted to conduct field sobriety testing. Defendant did not stand still as the officer gave instructions for a balancing test. Contrary to the officer's instructions, defendant raised his arms from his sides several times. He eventually said he could not perform the test because he had trouble with his knees. Believing that defendant was intoxicated, the officer placed him under arrest.

During the ride to the police station, the officer asked defendant if he was aware of what had happened. Defendant knew he had been in an accident but did not seem to know whether his car had hit the other car or been hit by that car. When the officer told him he was under arrest for DWI, defendant responded, "I know."

Based on the officer's testimony and reasonable inferences that could be drawn from the circumstances described, the municipal court judge found defendant guilty of DWI, N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97. Because the conviction was defendant's fifth for DWI since 1980, he was sentenced to 180 days in jail and his license was suspended for ten years. In addition, fines and monetary penalties were imposed and a number of other sanctions were included in the sentence. The sentence was stayed pending appeal except for the license suspension.

On appeal, under Rule 3:23 to the Superior Court, Law Division, the matter was transferred to Hudson County to avoid a potential appearance of conflict of interest in Union County. Judge Lourdes Santiago conducted a de novo trial in Hudson County on the record that was made in the Cranford Municipal Court. She issued a detailed written opinion dated June 10, 2010, explaining her decisions. In addition to disposing of a number of issues that defendant has not pursued on his appeal before us, Judge Santiago reviewed the evidence carefully and found defendant not guilty of careless driving but guilty of DWI. She initially imposed sentence essentially similar to that of the municipal court.

Subsequently, further motion practice resulted in modification of the sentence. By order dated June 29, 2010, defendant's final sentence was set as follows: a fine of $1,000 plus additional statutory penalties and court costs totaling $358; 180 days in the county jail, ninety days of which was to be served through an inpatient alcohol rehabilitation program approved by the Intoxicated Driver Resource Center (IDRC); ten-year suspension of his driver's license; and installation of an ignition interlock device for one year after the term of the license suspension. The court denied a stay of the sentencing order.

On appeal before us, defendant contends that the evidence at trial was not sufficient to find him guilty of DWI beyond a reasonable doubt. He contends that a video recording taken from the officer's police car that was submitted in evidence shows that he was not stumbling noticeably at the time of his arrest. He also contends his speech may have sounded slurred to the officer because he speaks with an accent. He asserts that Judge Santiago found his inability to perform roadside sobriety tests was credible because of the condition of his knees, and that she also found him not guilty of careless driving, thus indicating that the manner of his driving did not show impairment by the use of alcohol. He argues that the occurrence of the accident, the smell of alcohol, and the conditions of his eyes at that time of night were not sufficient to conclude beyond a reasonable doubt he had been driving under the influence of alcohol.

Our standard of review of the findings of fact and, in particular, the credibility determinations of the trial courts is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Here, the two trial judges that found defendant guilty of DWI carefully considered the evidence presented through the testimony of the officer and the video recording made from the police car. The totality of the evidence presented was sufficient to conclude that defendant had operated his car while intoxicated within the meaning of N.J.S.A. 39:4-50. See State v. Emery, 27 N.J. 348, 355 (1958). In addition to the physical manifestations of intoxication observable by defendant's appearance and actions, defendant admitted he had been drinking beer at a bar shortly before the accident, he had not avoided the accident although the other car was protruding into the street, and his conversation with the officer indicated poor awareness of what had occurred. All of these facts could be considered as evidence circumstantially supporting a finding of intoxication.

Furthermore, the officer was experienced in investigating DWI, and he concluded defendant was intoxicated. "[B]ecause sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish intoxication." State v. Bealor, 187 N.J. 574, 585 (2006).

We conclude there was sufficient credible evidence in the record to find defendant guilty of DWI.

A