STATE OF NEW JERSEY v. DAVID E. KONECNIK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5321-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID E. KONECNIK,

Defendant-Appellant.

__________________________________

May 3, 2013

Argued February 11, 2013 - Decided

Before Judges Espinosa and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 09-03-12.

Gary A. Kraemer argued the cause for appellant (Daggett, Kraemer, Kovach & Gjelsvik, attorneys; Mr. Kraemer, on the brief).

Daniel P. Bajger, Assistant Prosecutor, argued the cause for respondent (David J. Weaver, Sussex County Prosecutor, attorney; Mr. Bajger, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant David E. Konecnik appeals from a June 7, 2012 judgment finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant challenges the finding of probable cause, claims the testimony of the arresting officer was not credible, and that the officer did not administer the field sobriety tests correctly. We affirm.

I.

We gather the following facts from the record developed before the municipal trial court. On April 2, 2011, at approximately 3:00 p.m., Patrolman Joseph Indano, of the Andover Township Police Department, observed defendant driving a black Ford Ranger pickup truck while exceeding the speed limit. Indano followed defendant's truck into a residential area and activated the lights on his police car. After defendant stopped, Indano pulled behind him.1

Indano's police car was equipped with a mobile video recorder (MVR) which was activated when Indano began to follow defendant. After stopping, defendant got out of the truck and walked toward Indano. Defendant did not immediately comply when Indano told him to return to his truck, and Indano had to tell him two more times to have a seat in the vehicle. A passenger in the truck, who resided in the home where defendant stopped, was allowed to leave.

Indano approached the truck, with the driver-side door still open, and told defendant that he had stopped him for doing 66 in a 50 m.p.h. zone. Defendant acknowledged that he had been speeding. Indano requested defendant's driving credentials and noticed that defendant's hand motions were "slow and fumbling" while producing his documents and his speech was "a bit slow and slurred." Indano detected an order of alcohol coming from inside the truck and asked defendant, "How much you drink today?" Defendant responded, "Not that much." When pressed further, defendant replied "a couple of beers."

At that time, Indano had worked as a police officer for nine years and had participated in approximately 200 DWI arrests, approximately 90% of which related to alcohol. Indano had received training in recognizing intoxicated individuals and in conducting field sobriety tests. Indano asked defendant to step out of the truck and noticed that defendant's "face was flushed and pale [and] his eyes were bloodshot and watery." Indano patted defendant down for weapons and asked him to step to the front of the truck so that he could perform field sobriety tests.2

Indano conducted a one-leg-stand test, during which defendant returned his foot to the ground and exhibited difficulty following Indano's directions. Indano testified that defendant appeared nervous and swayed while Indano described the test to him. Indano then conducted a walk-and-turn test, during which defendant "stepped off the [imaginary] line several times" and turned around contrary to Indano's instructions. Indano conducted a horizontal gaze nystagmus (HGN) test, in which defendant was instructed to follow the officer s finger in the air, with his eyes only and without turning his head. Indano was certified in conducting HGN tests and explained: "[O]n a sober individual the eyes look like they're rolling on -- like marbles rolling on glass. On an intoxicated individual there is a bounce to it." Indano again observed that defendant's eyes were bloodshot and watery during the HGN test, which defendant failed.

Indano testified that, based on his training and experience with DWI arrests, defendant's appearance, the odor of alcohol, defendant's performance on the field sobriety tests and the HGN test, he concluded that defendant was intoxicated. Indano arrested defendant and charged him with DWI, N.J.S.A. 39:4-50, and speeding, N.J.S.A. 39:4-98. Defendant was later administered an Alcotest, and his blood alcohol concentration was determined to be 0.22%

Following Indano's testimony, the defense called Gilbert Snowden of DWI Consultants, Inc., who was accepted as an expert in the field of standardized field sobriety tests. Snowden testified that Indano's instructions to defendant on the one-leg-stand test were proper. However, defendant's failure to successfully complete this test would constitute only one indicator of intoxication and did not necessarily justify defendant's arrest. Based on Snowden s observations of the video, defendant's failure in the one-leg-stand test was the only scoring factor indicating intoxication.

Snowden criticized Indano's administration of the walk-and-turn test, as Indano failed to instruct defendant to look at his toes as he walked and used an imaginary line as opposed to a real line. He also testified that the minimum recommended time to conduct the HGN test is 48 seconds and the test administered by Indano lasted only 31 seconds. Snowden also identified additional claimed shortcomings, including the angles of Indano's finger and the distance between his finger and defendant's eyes.

Snowden explained the importance of performing the field sobriety and HGN tests in the standardized format and the potential problems posed by deviation from those standards:

Well, essentially the validity would be compromised. Because if any one of the test elements is changed, the validity is compromised. It's been validated to provide statistically validated indications of a driver's BAC, not to replace a breath test or a blood test, but to give within a certain degree of reliability, so now it becomes that degree of reliability, that scientific validity is no longer there anymore.

Snowden testified that errors in conducting the test result in the test becoming of unknown merit.

After Snowden's testimony, the municipal judge viewed the video from Indano's MVR, then rendered his decision. The judge noted that, while there had been much testimony as to the standardized tests, he was "assessing the totality of the circumstances." The judge found that Indano had testified as to defendant's "bloodshot eyes, swaying, staggering, [and] an odor of alcohol," but found "the most telling factor" was defendant's admission that he had consumed alcohol. The judge concluded that Indano formed a reasonable belief as to defendant's intoxication, based on the totality of the circumstances, before arresting him.

Defendant then entered a guilty plea to DWI, reserving his right to appeal. In his factual basis, defendant admitted that he was speeding and confirmed that he had been drinking that day to the point where his blood alcohol content, as shown by the Alcotest, was 0.22%.

The municipal court suspended defendant's driving privileges for two years; ordered that he perform thirty days of community service; serve a forty-eight hour detention period at an intoxicated driver resource center (IRDC); install an ignition interlock device in his vehicle for one year; serve two days in jail that could be done while at IRDC; plus appropriate fines, costs and assessments.

Pursuant to the plea agreement, the charge of speeding was dismissed. At defense counsel's request, the municipal court stayed all penalties pending appeal.

The Law Division conducted a trial de novo on May 25, 2012, reviewing the municipal court transcripts, examining all exhibits introduced into evidence and viewing the video from Indano's MVR. The judge found Indano's testimony credible and rejected the defense theory as to irregularities in the HGN and field tests:

I'm satisfied that under the totality of the circumstances here with the manner of operation of the vehicle, the odor of alcoholic beverage, the observations of the physical demeanor and appearance of the defendant, and his performance with regard to these tests, as well as the observations of how his pupils reacted with regard to the HGN test that the well grounded suspicion has been established.

The statement of reasons accompanying the June 7, 2012 order repeated these findings. The judge again rejected the defense's attack on Indano's credibility, noting:

While the Court agrees that Defendant's video depiction does not indicate overt manifestations of intoxication, the officer's testimonial observations are also not incredible or lacking veracity.

The judge again summarized the circumstances indicating intoxication:

[O]bservations of speeding, the driver immediately exiting his vehicle, an odor of alcohol from inside the vehicle, an admission of alcohol beverage ingestion, and facial and hand features symptomatic of intoxication . . . .

The Law Division judge found defendant guilty of the DWI charge and imposed the same sentence previously imposed by the municipal judge. The judge's oral decision was supplemented by a written statement of reasons. On appeal, defendant raises the following points:

POINT ONE

PROBABLE CAUSE TO ARREST REQUIRES A "WELL-GROUNDED SUSPICION" THAT AN INDIVIDUAL IS GUILTY OF AN OFFENSE.

POINT TWO

THE POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST THE DEFENDANT-APPELLANT FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL AND, CONSEQUENTLY, DID NOT HAVE REASONABLE GROUNDS TO ADMINISTER THE ALCOTEST TO HIM.

II.

The function of the Law Division in reviewing an appeal of a municipal court conviction is not to search the record for error, not to decide if there was sufficient credible evidence to support the municipal court conviction, but "to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge" to evaluate witness credibility. State v. Cerefice, 335 N.J. Super 374, 382-83 (App. Div. 2000) (citing State v. Johnson, 42 N.J. 146, 157 (1964)); see also, R. 3:23-8(a). The judge in a trial de novo must make independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).

In contrast, our function as a reviewing court requires us to determine whether the findings of the Law Division, not the municipal court, could reasonably have been reached on sufficient credible evidence present in the record. Ibid. When we conclude the findings of the Law Division meet this criterion, our "task is complete[,]" and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Johnson, supra, 42 N.J. at 162.

Just as the Law Division does when conducting a de novo review, we defer to the municipal court judge's credibility findings, which "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). Further, we neither "weigh the evidence" nor "make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1997). Rather, we give due regard to the trial court's credibility findings. Cerefice, supra, 335 N.J. Super. at 383.

However, if we determine the Law Division's findings were "clearly . . . mistaken . . . and so plainly unwarranted . . . [that] the interests of justice demand intervention and correction . . . then, and only then, . . . should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Avena, supra, 281 N.J. Super. at 333 (citations omitted).

Defendant argues that the observations Indano testified to were "trite, shop-worn, and self-serving general descriptions typically used in DWI cases" and were not evidenced in the video. We note that Indano's testimony was found credible by both the municipal judge and the Law Division judge and that his reference to common DWI telltales is not suggestive of fabrication.

Indano's observations of smelling an odor of alcohol, observing defendant's bloodshot and watery eyes, shaking hand movements, flushness, paleness, and staggering -- greatly support Indano's conclusion that defendant was intoxicated. The municipal judge found Indano's testimony credible, and that finding is entitled to our deference on review. State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005). Moreover, "when the municipal court and the [Law Division] 'have entered concurrent judgments on purely factual issues,'" as they have here, "we will not disturb those findings 'absent a very obvious and exceptional showing of error.'" Ibid. (quoting Locurto, supra, 157 N.J. at 474).

The Law Division judge rejected defendant's attacks on Indano's credibility, finding that the video supported his conclusions and demonstrated that he had no opportunity for fabrication:

However, the observations of speeding, the driver immediately exiting his vehicle, an odor of alcohol from inside the vehicle, an admission of alcohol beverage ingestion, and facial and hand features symptomatic of intoxication, all taken together, support the officer's version of his initial encounter with Defendant. Indeed, the video clearly depicts a spontaneous encounter without an opportunity, on the officer's part, to embellish the facts. As well, this officer had no prior contact with this Defendant.

Indano's testimony, accepted as credible by the municipal judge and the Law Division judge, provided ample justification for defendant's arrest.

Affirmed.

1 Defendant does not challenge the initial stop of his vehicle for speeding.

2 Due to the angle of the MVR, the field sobriety tests are obscured by defendant's truck, but the audio is clear.