STATE OF NEW JERSEY v. JOSE A. BROMLEY

NOT FOR PUBLICATION WITHOUT THE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.

JOSE A. BROMLEY,

Defendant-Appellant.

______________________________

October 31, 2014

Submitted: October 28, 2014 Decided

Before Judges Reisner and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 37-12.

Howard W. Bailey, attorney for appellant.

Gaetano T. Gregory, Acting Hudson County Prosecutor,attorney forrespondent (Stephanie Davis Elson, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jose A. Bromley appeals from the June 7, 2013 order of the Law Division finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.

We derive the following facts from the record. At 4:30 a.m. on February 5, 2012, New Jersey State Trooper Pfarrer was patrolling the New Jersey Turnpike. The trooper observed defendant's car "drifting in its lane." The trooper stated, "The vehicle was having trouble maintaining its lane. It was drifting. It wasn't . . . driving straight." The trooper continued to follow defendant's car as it left the Turnpike at Exit 15W. As defendant took the exit, the trooper testified that defendant "fail[ed] to negotiate the curve properly" because he drifted onto the shoulder of the road. Because defendant failed to maintain his lane, the trooper initiated a traffic stop. Defendant complied.

Trooper Pfarrer got out of his patrol car and approached defendant's vehicle. Defendant rolled down his window part way, and the trooper asked him to completely open his window. When defendant did so, the trooper testified that he "got a blast of freshly sprayed cologne in my face" and noticed a bottle of cologne behind defendant's seat. The trooper noticed that defendant's "eyes were bloody" and that "[h]is speech was a little slurred." Defendant told the trooper he "had one drink" that evening.

Trooper Pfarrer asked defendant to exit the car and he escorted defendant to the front of the vehicle to administer field sobriety tests. As the trooper was explaining the "heel to toe" test, defendant "began to sway." He was unable to maintain the "starting position" for the test without swaying or moving his arms to "steady himself." When defendant began to walk, he "sway[ed] as he took his steps" and, at one point, lost his balance. The trooper determined defendant was intoxicated and arrested him. As the trooper drove defendant to the station, the trooper's "car began to smell of alcohol[.]" At the station, defendant told the trooper he consumed three beers earlier that evening.1

Based upon the evidence presented, Judge Paul M. DePascale found the State had proven beyond a reasonable doubt that defendant was guilty of DWI. The judge stated

A finding of guilt for a violation of [N.J.S.A.] 39:4-50 can be based upon the trooper's observation and opinion if it satisfies the State's burden beyond a reasonable doubt, and here, they do so.

There is no question here that at the relevant time this defendant was operating his vehicle on a roadway. Likewise, I'm satisfied beyond a reasonable doubt that his ability to operate that vehicle was impaired by the consumption of alcohol to the point where he posed a danger to other motorists as well as himself. The fact is clearly demonstrated by his inability to safely maintain his lane of travel and properly negotiate a simple exit ramp.

Finally, his admission of alcohol consumption prior to the operation of the vehicle, his bloodshot eyes, slurred speech, inability to satisfactorily complete the failed testing and the trooper's opinion of his intoxication established beyond a reasonable doubt that he was driving in violation of [N.J.S.A.] 39:4-50.

Defendant argued that the trooper's observations should not have been admitted in evidence because the trooper did not have probable cause to stop his car. In rejecting this argument, Judge DePascale found

That argument is clearly without merit. Having personally observed the defendant violate N.J.S.A. 39:4-88, the trooper was legally justified in stopping the defendant's vehicle. No other justification was necessary.

The defendant's argument that his violation of that regulation was neither uncommon or egregious is irrelevant. The law does not make allowances for incremental violations. If you violate the law you are subject to its penalties. The stop was lawful and the motion to suppress is therefore denied.

Finally, defendant cited State v. Laurick, 120 N.J. 1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), and argued that his 1992 DWI conviction could not be used to enhance his penalty in the current case because, at the time he pled guilty to DWI in 1992, he did not understand he was entitled to counsel.2 After reviewing the transcript of defendant's 1992 guilty plea, however, Judge DePascale found

that the record does not support the facts asserted by the defendant, other than the fact that he was not represented by counsel. Although the interaction between the Court and the defendant was brief, there is no doubt whatsoever that the defendant was advised that he had a right to be represented by counsel before proceeding with his case. The colloquy throughout the proceeding is clear and the defendant's responses to the Court's questions were both direct and responsive with no apparent hesitation or indication of a comprehension problem. There is no indication that his waiver of his to counsel was anything other than knowingly, voluntary and intelligent.

Because this was defendant's third DWI conviction, Judge DePascale sentenced him to a ten-year driver's license suspension, and 180 days in jail, with ninety days permitted to be served in an inpatient program. The judge also imposed the appropriate fines, costs, and surcharges, and ordered defendant to install an ignition interlock device for one year after completion of his suspension.3 This appeal followed.

On appeal, defendant raises the following contentions

POINT [I]4

The Court Erred During The Hearing Of The Municipal Appeal On June 7, 2013, When It Ruled That The Defendant Was Not Entitled To Relief Under State v. Laurick, Pertaining To The Prior Plea On July 23, 1992.

POINT [II]

The Court Erred When It Ruled That The State Police Had Probable Cause To Stop The Defendant.

On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J.146, 162 (1964). However, in making factual findings, the Law Division judge should give "due, although not necessarily controlling," weight to the municipal judge's credibility determinations. Id. at 157. When we are satisfied that the findings and conclusions of the Law Division are supported by sufficient credible evidence, our "task is complete and [we] should not disturb the result, even though [we] . . . might have reached a different conclusion" or if the result was "a close one." Johnson, supra, 42 N.J. at 162.

Having considered defendant's contentions in light of the record and the applicable legal principles, we conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

Contrary to defendant's contention, there was ample evidence in the record to support the judge's finding that the trooper had probable cause to stop defendant's car for failing to maintain a lane. The officer saw the car drift within its lane and then move onto the shoulder of the road as defendant attempted to negotiate a curve. See State v. Amelio, 197 N.J. 207, 211 (2008) (holding that a motor vehicle stop may "be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed"). Therefore, the stop was valid and the trooper's subsequent observations of defendant, including the results of the field sobriety tests, were properly admitted into evidence.

The judge's consideration of defendant's 1992 conviction in determining that defendant was a third-time offender was also appropriate. Under Laurick, supra, a prior uncounseled DWI conviction cannot be used to enhance the sentence for a current DWI conviction if the prior conviction occurred at a time where the defendant was not represented by counsel and where he or she did not waive the right to counsel. Laurick, supra, 120 N.J. at 16. "Non-indigent defendants must establish that they were not advised of their right to counsel and that they were unaware of such right at the time they entered the uncounseled pleas." State v. Schadewald, 400 N.J. Super. 350, 354 (App. Div. 2007).

As Judge DePascale found, the transcript of defendant's 1992 guilty plea clearly indicates that the trial judge advised defendant that he had the right to have an attorney and that, if he could not afford one, an attorney would be appointed for him. Defendant then told the judge that he did not want an attorney. Contrary to the bald assertions defendant raises on appeal, there is nothing in the record to support his current claim that he did not understand the judge's questions. As Judge DePascale observed, "defendant's responses to the Court's questions were both direct and responsive with no apparent hesitation or indication of a comprehension problem. There is no indication that his waiver of his right to counsel was anything other than knowing, voluntary and intelligent." We discern no basis for disturbing the judge's well-reasoned determination.

Accordingly, we affirm substantially for the reasons expressed by Judge DePascale in his thorough June 7, 2013 oral opinion.

Affirmed.

1 Trooper Pfarrer administered an Alcotest at the station. In the Law Division, however, the results of that test were ruled inadmissible.

2 Defendant had previously raised this argument before the municipal court in a petition for post-conviction relief (PCR) concerning the 1992 DWI conviction. The municipal court judge denied defendant's petition and, following de novo review, the Law Division also denied PCR.

3 Defendant was also convicted of failure to maintain a lane, N.J.S.A. 39:4-88b, and reckless driving, N.J.S.A. 39:4-96. However, these convictions are not an issue in the present appeal.

4 In his brief, defendant also argues that the municipal court judge erred in admitting the Alcotest results into evidence. On de novo review in the Law Division, however, Judge DePascale ruled that the Alcotest results were not admissible. The State has not filed a cross-appeal from that determination. Therefore, defendant's contentions concerning the Alcotest are moot.