STATE OF NEW JERSEY v. LYDIA D. KOKOLSKYJ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LYDIA D. KOKOLSKYJ,

Defendant-Respondent.

________________________________________________

Submitted June 18, 2013 Decided

Before Judges Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-16-12.

Sean F.Dalton, GloucesterCounty Prosecutor, attorney for appellant (Vincent C. Malfitano, Senior Assistant Prosecutor, on the brief).

Ragonese, Albano & Viola, attorneys for respondent (Michael P. Albano, on the brief).

PER CURIAM

After the rejection in the municipal court of her argument that there was a lack of sufficient cause for the State to require that defendant take a breathalyzer test following her arrest, defendant entered a conditional guilty plea to driving

while intoxicated (DWI), N.J.S.A. 39:4-50, and the State consented to a dismissal of the charge that defendant refused to take a breathalyzer test. Defendant appealed to the Law Division, which granted her motion to suppress and remanded the matter to the municipal court for further proceedings on the DWI charge. We granted the State's motion for leave to appeal and now affirm.

The record demonstrates that defendant was stopped by a police officer on the evening of May 20, 2011, as a result of proceeding too far past a stop line at a red light and then backing up to a more appropriate location on the roadway. There is no dispute about the propriety of the officer's stop of defendant's vehicle. The dispute relates to whether, after conducting a field sobriety test, the police officer had probable cause to arrest defendant for DWI. After conducting an evidentiary hearing at which the arresting officer and defendant testified and during which the court viewed a video recording of the vehicle stop and field sobriety test the municipal judge found the police officer to be credible and denied the motion to suppress.

On appeal to the Law Division, the judge considered the municipal court testimony and the video of the stop as well. The judge, however, drew different conclusions as to what the

video revealed and granted defendant's motion to suppress, remanding to the municipal court for further proceedings on the DWI charge.

In State v. Locurto, 157 N.J. 463, 471 (1999), the Court repeated the familiar appellate standard of review in these circumstances. Simply, the reviewing court's aim is to "determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." More recently, while adhering to this standard, our Supreme Court also observed that "when the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, there is little, if anything, to be gained from deference," and that "'[i]n that circumstance, . . . appellate courts are not confined to a review of a transcript nor obliged to defer to the trial court's findings, but may consider the recording of the event itself." State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2011).

Here, the Law Division judge based her determination on both the transcribed testimony of the police officer and defendant, as well as the video of the roadside stop of defendant's vehicle and the field sobriety test that followed. Although the record on appeal contains the same evidence, which we are able to review in the same manner as the Law Division

judge, we nevertheless apply the Locurto standard with the exception that we may also view for ourselves what the video reveals.

In reversing the denial of the suppression motion, the Law Division judge found that, although there was cause to conduct the vehicle stop, and although there was a reasonable articulable suspicion to conduct the field sobriety test because an odor of alcohol emanated from the interior of the vehicle1 and defendant admitted drinking two glasses of wine a few hours earlier the judge found there was a lack of probable cause to make the DWI arrest based on that evidence and on defendant's performance during the field sobriety test. The judge found that defendant did sway somewhat or "fell out of position" at one point of the heel-toe test, but that defendant also properly completed both the alphabet and leg-raise tests. The judge also found defendant was "able to follow the officer's pen when he had her keep her head steady but follow the tip of the pen and she was able to touch the tip of the pen."

In short, the Law Division judge recognized that defendant was able to adequately perform many of the aspects of the field sobriety test even though she was not perfect in all respects.

The judge also credited defendant's testimony that she had long-standing back issues and back pain during the test that caused the judge, in light of defendant's fairly competent performance of the other aspects of the test, to express reasonable doubt as to whether there were grounds to arrest defendant or to seek defendant's consent to the administering of a breathalyzer test.

In compliance with Diaz-Bridges, we too have viewed the video of the vehicle stop and field sobriety test on the evening in question. We agree that although defendant had a few moments when she stepped out of place or swayed during the heel-toe test, it could be said that she otherwise competently performed. When viewed in light of defendant's physical issues, which the Law Division judge credited by way of a determination that requires our deference, we have been presented with no principled reason for second-guessing the Law Division judge's conclusion that there was a reasonable doubt as to the State's right to arrest defendant and seek her consent to a breathalyzer test. State v. Cummings, 184 N.J. 84, 96 (2005); State v. Breslin, 392 N.J. Super. 584, 588-89 (App. Div.), certif. denied, 192 N.J. 477 (2007).

Affirmed.

1As the Law Division judge observed, there were others inside the vehicle and the police officer could not say whether the odor of alcohol emanated from defendant or the other occupants.

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