STATE OF NEW JERSEY v. ANDREW COSMEN

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

ANDREW COSMEN,

Defendant-Appellant.

_____________________________

Submitted May 6, 2014 Decided May 27, 2014

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 12-024.

Law Offices of Howard S. Teitelbaum, L.L.C., attorneys for appellant (Mr. Teitelbaum, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andrew Cosmen appeals from the Law Division's March 8, 2013, judgment of conviction of driving while under the influence (DUI), N.J.S.A. 39:4-50, after a trial de novo. Defendant argues that the State failed to present sufficient evidence to sustain a finding of guilt beyond a reasonable doubt. We disagree, and affirm.

I.

The State presented an observational case through the testimony of New Jersey State Police Sergeant John Golba. While on patrol in Millstone Township on May 1, 2011, Golba observed defendant driving a large pick-up truck, travelling east on Route 537. It was about 12:16 a.m. As defendant attempted to turn left onto Burnt Tavern Road, which consisted of a lane in each direction, separated by a double-yellow line, he drove his truck onto the corner's curb. He then backed off the curb. As depicted on the mobile video recording (MVR), defendant then proceeded down the oncoming lane of Burnt Tavern Road for 100 to 200 feet, before moving to the proper lane as Golba initiated his overhead lights.

After defendant came to a stop by the side of the road, Golba approached and requested defendant's credentials. Golba testified that defendant fumbled through his wallet as he produced his driver's license and two expired insurance cards, but no registration. As reflected on the MVR, defendant's speech was hoarse and slurred; at times, he responded slowly. Golba also detected a strong odor of alcoholic beverages. He also testified that defendant's eyes were bloodshot and watery; his eyelids drooped; and his face was flush.

Golba observed five unopened cans of beer in the car. No empty containers were found. However, defendant admitted at trial that he had consumed three beers during the evening.

During the traffic stop, defendant reacted slowly. He took twenty seconds to exit his vehicle in response to the trooper's command. Defendant staggered and swayed as he walked to the front of the vehicle, out of range of the MVR. Golba then administered a Miranda1 warning. Golba testified that defendant continued to walk in the direction of the woods. When the trooper told defendant to stop, defendant stepped back and swayed, appearing off balance. As heard on the MVR, defendant repeatedly asked Golba to clarify his instructions for the one-legged stand test. After defendant performed poorly, Golba arrested him and placed him in restraints.

Once at the police station, Golba administered the heel-to-toe test and defendant again performed poorly. Although Alcotest results were not offered into evidence, Golba testified that defendant initially stated he was unwilling to submit to the test. But, he changed his mind in response to Golba's urging. Golba testified, based on his experience conducting over 800 DUI arrests over twenty-four years, that defendant was unable to operate a motor vehicle safely because of the influence of alcohol.

The defense attempted to demonstrate that defendant's physical appearance and performance on the field sobriety tests resulted from factors other than alcohol consumption, and the nature of his driving was caused by fatigue and the size of his vehicle. Defendant testified he was fifty years old and suffered from a heart condition. He weighed over 200 pounds. Golba had found nitroglycerin pills in defendant's pocket during a search incident to arrest.

Defendant explained that he was tired having been awake since 4:00 a.m. He testified that he was on his way home from the New Egypt Raceway, where he and other spectators were subjected to dust from the dirt track. He was also a heavy, life-long smoker.

As for driving over the curb, defendant maintained that the turn was a difficult one and his large pick-up truck, with four tires in the rear, was difficult to maneuver. On the other hand, defendant conceded that he drove down Burnt Tavern Road regularly, as a route to his home. He was unaware that his vehicle remained fully in the left lane for a significant distance after it dismounted the curb. The defense also presented an expert who opined that Golba did not administer the one-legged test properly, because he did not tell defendant to look at his foot and keep his arms at his sides at the same time.

The municipal court found defendant guilty of driving under the influence.2 As defendant had at least two prior DUI convictions,3 the court sentenced defendant to a term of 180 days (of which ninety days could be served in an in-patient program approved by the Intoxicated Driver Resource Center), ten-year loss of license, $1007 fine, and other mandatory fees and costs. The court required installation of an ignition interlock. The municipal court stayed the sentence, except for the loss of license.

Upon a trial de novo on the record, the Law Division found defendant guilty. The Law Division judge gave significant weight to defendant's erratic driving, his admission that he consumed three beers, and Golba's opinion, based on numerous DUI arrests, that defendant operated his truck under the influence. The court acknowledged that the State's case lacked the often persuasive video of the defendant's performance on the field sobriety tests. However, after giving due deference to the municipal court's implicit finding that Golba was a credible witness, the court found, consistent with Golba's testimony, that defendant could not perform the tests and needed repeated instructions. The Law Division judge gave relatively little weight to the evidence of defendant's hoarse voice and the condition of his eyes, in view of defendant's history of smoking, and his exposure to dust at the racetrack. Nonetheless, defendant's slurred speech, and his lack of balance supported a finding of guilt.

The court imposed anew the sentence that the municipal court imposed. The court's March 8, 2013, order provided that defendant's term of incarceration was "stayed for 45 (forty-five) days pending the filing of a Notice of Appeal with the Appellate Division."4 The fines and driver's license suspension were not stayed.5

In his sole point on appeal, defendant argues:

THE STATE FAILED TO PROVE THE APPELLANT GUILTY AS TO EVERY ELEMENT OF DWI BEYOND A REASONABLE DOUBT.

II.

Our role on appeal after a trial de novo under Rule3:23 is to determine whether sufficient credible evidence in the record supports the Law Division's decision. State v. Johnson, 42 N.J.146, 162 (1964). Unlike the Law Division, we do not independently assess the evidence. State v. Locurto, 157 N.J.463, 471 (1999). However, we review de novo the trial court's legal conclusions that flow from established facts. State v. Handy, 206 N.J.39, 45 (2011).

Our law makes it unlawful for a person to "operate[] a motor vehicle while under the influence of intoxicating liquor." N.J.S.A.39:4-50(a). The prohibited condition need not rise to the level of intoxication. Johnson, supra, 42 N.J.at 165. A motorist may not take to the roads after consuming intoxicating liquors if he was "so affected in judgment or control as to make it improper for him to drive on the highways." Ibid. The motorist violates the law if he has consumed alcohol "'to the extent that his physical coordination or mental faculties are deleteriously affected.'" Ibid.(emphasis omitted) (quoting Statev. Emery, 27 N.J. 348, 355 (1958)). Put another way, under the influence means "a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit-producing drugs." State v. Tamburro, 68 N.J. 414, 421 (1975). The goal of the statute is safety on the highways. Id. at 422.

"Competency to operate a motor vehicle safely is the critical question." Ibid. On the other hand, the State need not prove that "the particular operator could not safely drive a car." Johnson, supra, 42 N.J. at 165. Indeed, "proof that he could operate with safety will not, in and of itself, absolve him." Ibid. On the other hand, "proof of the erratic manner or result of his driving is admissible as evidence of the existence of the statutory condition." Ibid.

We have sustained convictions based on the totality of various indicators that the driver was "under the influence" as the law contemplates. In State v. Morris, 262 N.J. Super. 413, 421 (App. Div. 1993), a conviction was soundly based on the defendant's slurred speech, loud and abrasive behavior, disheveled appearance, bloodshot eyes, and odor of alcoholic beverages. Likewise, we affirmed a conviction where the defendant had bloodshot eyes, alcoholic odor, demonstrated a hostile demeanor, and failed to follow directions in performing a finger dexterity test; he also lost his balance when vomiting, and gave inconsistent accounts of the amount he drank. State v. Cryan, 363 N.J. Super. 442, 456 (App. Div. 2003).

Here there was more than ample evidence to support the Law Division's judgment. There was no question that defendant had consumed alcoholic beverages. He gave off a strong odor of alcoholic beverages. He admitted that he drank three beers while attending the races. Whether his eyes were bloodshot and his voice hoarse because of drinking or other causes was not significant.

The critical factor was defendant's driving, which demonstrated that his competency to operate a vehicle was significantly impaired. Defendant drove over the corner curb as he turned left from Route 537 onto Burnt Tavern Road. Defendant's claim that it was a difficult turn, and that his truck was large, is unpersuasive. Defendant admitted he drove this route many times before. There was no evidence that the roadway was too narrow to accommodate his or any other authorized vehicle if properly operated. As depicted on the MVR, the lanes of Burnt Tavern Road were wide enough to comfortably accommodate his vehicle.

After backing up off the curb, defendant then proceeded down the wrong lane of traffic for a significant distance. His mental faculties were obviously impaired to the point that he did not appreciate the necessity to move over promptly to the proper lane of traffic. Defendant's lack of balance, and his slow responses were corroborating evidence that his coordination and reaction times were impaired. Golba opined, based on a firm foundation of experience and observations, that defendant was under the influence of alcoholic beverages.

In sum, there was sufficient credible evidence to support the court's finding, beyond a reasonable doubt, of a violation of N.J.S.A. 39:4-50(a).

Affirmed. Any stay of the sentence is vacated.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 The court also found defendant guilty of driving without a current insurance card, N.J.S.A. 39:3-29, and careless driving, N.J.S.A. 39:4-97, which was merged into the DUI conviction.

3 Although the court entered defendant's driver's abstract into evidence, it was not included in the record before us. His last conviction was in June 2003.

4 Both the State and the defendant assert in their briefs that the Law Division judge stayed the sentence, without reference to the forty-five day limitation.

5 The court issued an amended order on April 10, 2013. The second order omitted the finding of guilt of the DUI charge, but repeated the DUI sentence, and omitted the paragraph staying the custodial portion of the sentence. The amended order also included a provision finding defendant guilty of the insurance charge and imposed fines and costs for that violation. Apparently, the amended order was intended only to add the disposition of the insurance violation, without altering the DUI-related provisions of the initial order. Defendant's notice of appeal refers only to the March 8, 2013, order.