STATE OF NEW JERSEY v. ROBERTO LOPEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0716-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERTO LOPEZ,

Defendant-Appellant.

_______________________________________________________

April 11, 2012

Submitted February 1, 2012 - Decided

Before Judges Graves and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Municipal Appeal

No. 5947.

Hugo Villalobos, attorney for appellant.

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Sara B. Liebman,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

On May 17, 2009, defendant Roberto Lopez was charged with driving while intoxicated (DWI), N.J.S.A. 39.4-50; careless driving, N.J.S.A. 39:4-97; and driving the wrong way on a one-way street, N.J.S.A. 39:4-85.1. Defendant was subsequently charged with refusing to submit to an Alcotest, N.J.S.A. 39:4-50.2. Following a trial in the Municipal Court of Elizabeth, defendant was convicted of DWI, refusing to submit to an Alcotest, and careless driving. The court dismissed the charge of driving the wrong way on a one-way street because it was "part and parcel" of careless driving.

Defendant appealed his DWI and refusal convictions, but he did not appeal his conviction for careless driving. After a trial de novo, defendant was acquitted of the refusal charge; however, he was again convicted of the DWI offense. Defendant was sentenced as a second-time DWI offender to a suspended thirty-day jail sentence, a two-year driver's license suspension, thirty days of community service, and forty-eight hours at an Intoxicated Driver Resource Center. The Law Division also imposed the statutorily mandated fines, fees and assessments, and required defendant to install an interlock device for a twelve-month period following restoration of his license. We affirm.

The facts are not complicated. Two Elizabeth police officers, Jaques Cockinos and Daniel Rivera, were in a patrol vehicle that was entering "the Bayway Circle from Edgar Road" when they observed a Lexus going in the wrong direction on the circle. To avoid a collision, Rivera testified he drove "into the BP Gas station." Rivera immediately activated his lights and sirens and pursued the Lexus. According to the officers, the Lexus "wouldn't stop. It went across the circle and made a left onto 1 and 9 going north." The vehicle continued for about "a quarter of a mile" before it "made an abrupt stop."

The officers approached the Lexus, observed defendant in the driver's seat, and Rivera asked defendant for his license, registration, and insurance. While defendant was "fumbling around, looking for his paperwork," Rivera detected a strong odor of alcohol coming from defendant. Although defendant eventually produced his license, he did not produce the registration or proof of insurance.

When Rivera asked defendant to exit the vehicle, Rivera observed defendant "was pretty much just stumbling over." Rivera also noted that defendant had an "unsteady gait" and "couldn't maintain his balance," so Rivera "grabbed him by the arm." In addition, Cockinos testified defendant was "crying," "very unsure of himself," "had to use support," "and upon exiting the vehicle, he started to fall down." Cockinos also testified that he helped defendant to stand up; however, when the officers let him go, defendant was unable to maintain his balance and started to fall again.

Because defendant was "just stumbling and sagging," the officers determined it was unsafe to conduct field sobriety tests at the scene. Defendant was then placed under arrest for DWI and transported to the police station.

Defendant did not testify at the municipal court trial, but he produced expert testimony from Herbert Leckie, who testified the Alcotest test was not administered correctly because the officers failed to read the "proper instruction" to defendant. Nevertheless, Leckie conceded that "the officers had probable cause to believe defendant was operating his vehicle while intoxicated."

Defendant also called his father, Isidoro Lopez, as a witness. Defendant's father testified that on the night in question, he was watching television and talking with his son between the hours of 10 p.m. and 2 a.m., and he did not see defendant consume any alcoholic beverages while they were together.

In an oral decision on January 28, 2012, the municipal court judge found that defendant's father "must have the time confused because his testimony as to the demeanor of his son, Roberto, is certainly in conflict with the demeanor that he displayed at the time the police officers stopped him." The municipal court judge credited the officers' testimony and, based on their observations, defendant was found guilty of "driving under the influence of alcohol . . . refusing to take a breathalyzer test . . . [and] careless driving."

Defendant appealed his DWI and refusal convictions to the Law Division, which conducted a trial de novo on the record. Following oral argument, defendant was found not guilty of the refusal charge, but the Law Division judge determined that the officers' observations were sufficient to prove defendant guilty of DWI beyond a reasonable doubt. The judge's findings and conclusions included the following:

[D]efendant is going the wrong way on a one-way street, and this is the [B]ayway Circle, that when he almost runs into the police, that he has alcohol on his breath, that he fumbles with and cannot respond to giving his documents, that he can't stand up and falls down twice, that those are sufficient psyco-physical tests to constitute driving while intoxicated.

. . . .

And . . . let's say it this way. [There was a] walk and turn test and he failed it because he couldn't stand up. The one leg stand test, how would they have got the one-leg stand test, he couldn t stand on two legs and kept falling down. So we have these tests in the field and and all of the other things that I just mentioned . . . and, therefore, I find the defendant guilty as charged of driving while intoxicated.

On appeal to this court, defendant submits the following arguments:

POINT I

THE STANDARD OF REVIEW OF A CASE TRIED AT THE MUNICIPAL LEVEL IS TO DETERMINE WHETHER THE FINDINGS OF THE COUNTY COURT COULD REASONABLY HAVE BEEN REACHED ON SUFFICIENT CREDIBLE EVIDENCE PRESENT IN THE RECORD AS A WHOLE.

POINT II

THE STATE FAILED TO SHOW THAT THE DEFENDANT HAD IMBIBED TO THE EXTENT THAT HIS PHYSICAL COORDINATION OR MENTAL FACULTIES WERE SO DELETERIOUSLY AFFECTED, WHICH TENDED TO DEPRIVE HIM OF THE INTELLECT AND CONTROL OF HIMSELF AND THIS COURT SHOULD REVERSE THE FINDING OF DRIVING UNDER THE INFLUENCE.

POINT III

THE STATE NEVER SHOWED THAT THERE WAS PROBABLE CAUSE THAT THE DEFENDANT WAS DRIVING UNDER THE INFLUENCE NOR THAT HE WAS ARRESTED APPROPRIATELY AND THE COURT SHOULD REVERSE.

POINT IV

THE STATE'S CLAIM THAT LAY TESTIMONY ALONE CAN ESTABLISH GUILT IS DICTA IN CASES WHERE THE COURTS HAD AT THEIR DISPOSAL STRONG EVIDENCE OF GUILT AND THIS COURT SHOULD REVERSE.

POINT V

THE APPELLATE COURT SHOULD DISMISS THE MATTER BECAUSE THE STATE'S CLAIM THAT THE DEFENDANT COULD NOT REQUEST DISMISSAL OF THE CASE BECAUSE THE COURT BELOW DID NOT RULE ON THE MOTION TO DISMISS FOR FAILURE TO PROVIDE THE DOWNLOADABLE DATE ORDERED TO BE PRODUCED BY OUR SUPREME COURT IS MERITLESS, ESPECIALLY SINCE THE APPENDIX HAD A COPY STAMPED FILED WITH THE SEAL OF THE COURT.

Based on our review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

Our scope of review is limited. We "consider only the action of the Law Division, and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Review in the Law Division is de novo on the record. R. 3:23-8(a). The Law Division must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). Likewise, we defer to findings by a municipal court that are substantially influenced by its "opportunity to hear and see the witnesses." Id. at 161. Our function is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, we "should not disturb the result" even though we "might have reached a different conclusion" or the case was "a close one." Ibid.

N.J.S.A. 39:4-50(a) prohibits the operation of a motor vehicle "while under the influence of intoxicating liquor." "The language 'under the influence' . . . means a substantial deterioration or diminution of the mental faculties or physical capabilities of a person . . . ." State v. Tamburro, 68 N.J. 414, 420-21 (1975). The statute does not require the State to prove that defendant was "absolutely 'drunk' in the sense of being sodden with alcohol. It is sufficient if [he] has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Emery, 27 N.J. 348, 355 (1958).

In this case, the officers' observations provided ample evidence of defendant's guilt. See State v. Bealor, 187 N.J. 574, 585 (2006) ("Since 1924, because sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication."); see also State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993) (finding defendant guilty of DWI based on the strong odor of alcohol on his breath, his agitated behavior, the fact that he was "very wobbly," his slurred speech, and his bloodshot eyes). We therefore affirm substantially for the reasons stated by Judge Joseph P. Perfilio on September 10, 2010.

Affirmed.