STATE OF NEW JERSEY v. JESSE MICHAEL KESSLER

NOT FOR PUBLICATION WITHOUT THE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.

JESSE MICHAEL KESSLER,

Defendant-Appellant.

_______________________________________

May 27, 2015

Submitted May 12, 2015 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2013-09.

Levow & Associates, P.A., attorneys for appellant (John V. Molitor, of counsel and on the brief).

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Michael A. Nardelli, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jesse M. Kessler appeals from his de novo conviction of driving while intoxicated ("DWI"), in violation of N.J.S.A. 39:4-50. We affirm.

On June 20, 2012, defendant was arrested and charged with DWI, N.J.S.A. 39:4-50; refusing to consent to the taking of breath samples, N.J.S.A. 39:4-50.2; driving without headlights, N.J.S.A. 39:3-47a; failing to maintain lane, N.J.S.A. 39:4-88b; failing to keep to the right, N.J.S.A. 39:4-88a; and reckless driving, N.J.S.A. 39:4-96. Defendant was tried in the municipal court.

At the trial, Officer Walter Silcox ("Silcox") of the West Windsor Police Department testified that on June 20, 2012, at around 1:22 a.m., he was on patrol on Route 1 and observed a vehicle traveling northbound without its headlights on. Silcox entered the roadway and followed the vehicle. He observed the car swerve from the left lane into the center lane, where a tractor-trailer was traveling. The car swerved back to the left lane. Silcox activated his emergency lights and stopped the car.

Silcox approached the vehicle on the passenger side and the driver, who was later identified as defendant, handed him the rental agreement for the car. The officer asked defendant for his driving credentials. Defendant responded initially with a blank stare but eventually produced his New York driver's license. Silcox told defendant that he had stopped him because he was driving without his headlights on, but defendant said the lights were on. Defendant told the officer he had been in Philadelphia at a business meeting and was traveling back to New York. Silcox testified that defendant's eyes were bloodshot and watery.

After some discussion, Silcox reached into the car and turned the headlights on. As he was doing so, Silcox noticed the odor of alcohol emanating from defendant. Silcox asked defendant how much alcohol he had consumed that evening. Defendant replied that he had not had anything to drink. Silcox brought a portable Alcotest machine from his police vehicle, and asked defendant to provide breath samples. Defendant refused.

Silcox asked defendant to exit the car. He acknowledged on cross-examination that when defendant exited the car, he looked "fine" as he walked to the front of the car. Silcox asked defendant to perform certain standardized field sobriety tests. As he was doing so, Silcox again noticed an odor of alcohol emanating from defendant. Silcox testified that defendant failed to successfully perform the horizontal gaze nystagmus ("HGN") test, the walk-and-turn test, and the one-leg-stand test.

Silcox arrested defendant, placed him in his police vehicle, and transported him to police headquarters. During the drive, Silcox noticed the odor of an alcoholic beverage in the car. At the police station, Officer Lee Craig Brodowski ("Brodowski") read defendant the standard statements regarding the Alcotest. Brodowski testified that defendant refused to take the test.

Defendant presented testimony from Gilbert Snowden ("Snowden"), who was qualified as an expert in field sobriety testing. Snowden testified that when performing the HGN test, some individuals have a tendency to turn their heads when following an object to the side. Snowden said that, when an individual is predisposed to turn his or her head, the person should be given the opportunity to put his or her fists under the chin to act as a brace. He noted that defendant was not given such an opportunity in this case. Snowden further testified that a person with leg or back problems, an inner ear disorder or certain other physical impairments might have difficulty performing the walk-and-turn and one-leg-stand tests.

In addition, defendant presented testimony from Dr. Paul Greenberg ("Greenberg"), who was qualified as an expert in the field of podiatry. Greenberg opined that defendant had certain congenital problems and traumatic injuries which affected his gait. Greenberg had defendant perform the walk-and-turn and one-leg-stand tests. He said defendant's deficient performance on the walk-and-turn test administered by Silcox was consistent with his underlying pathology and physiological circumstances. Greenberg also said defendant had not been able to correctly perform the one-leg-stand test that he had him perform. He did not believe defendant was faking or malingering.

Defendant testified that, on June 20, 2012, he had been in Philadelphia at business meetings during the day, and had left the city to return home between 10:30 p.m. and 10:45 p.m. Defendant denied that he had consumed alcohol and had no idea why he would have smelled as though he had. He said he made no stops after leaving Philadelphia, and claimed that the headlights had been turned on when he began the trip. He stated that the car had been brought to him by a valet following a dinner meeting and he conceded that the valet may have turned on the running lights, rather than the headlights.

Defendant also testified that he swerved out of his lane of travel because he had looked at his phone, which was providing directions to New York through the use of a global positioning system. He admitted he did not blow into the hand-held breath-testing device or submit breath samples at the police station, but said his refusal was based on advice he had previously received from attorneys.

In addition, defendant acknowledged that he had not informed the officers that he had any physical injuries that would preclude him from successfully completing the field sobriety tests. Defendant stated that when he was a youth, he had sustained certain injuries during sporting events, which affected his balance.

The municipal court judge found defendant guilty of all charges. After he was sentenced, defendant sought de novo review by the Law Division. The trial court filed a lengthy, written opinion, finding defendant guilty of all charges. The court imposed the same sentences as the municipal court judge had imposed.

For DWI, the court imposed a $250 fine, a three-month suspension of driving privileges in New Jersey, twelve hours at an Intoxicated Driver Resource Center ("IDRC"), certain assessments, and court costs. For the failure to provide breath samples, the court imposed, among other penalties, a concurrent seven-month suspension of driving privileges and twelve hours at an IDRC. Fines, assessments and costs were imposed for the other charges. The court memorialized its decision in a judgment dated November 6, 2013.

On appeal, defendant argues

POINT I

THIS COURT SHOULD REVERSE THE LAW DIVISION'S DECISION TO FIND [DEFENDANT] GUILTY BEYOND A REASONABLE DOUBT OF OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR.

More specifically, defendant argues that the Law Division judge erred in his assessment of the facts. Defendant contends he did not admit that he failed to use his headlights during the ride from Philadelphia. He says the lights were on when he began his trip. Defendant further argues that he did not swerve into the lane of a passing tractor-trailer, but "drifted" into the middle lane after that vehicle passed. He asserts that he did not sway when he exited his vehicle, and that the videotape of the incident shows that he exited and walked to the front of the vehicle without any difficulty.

In addition, defendant asserts that Silcox did not state that defendant's eyes were bloodshot and glassy. Rather, Silcox said defendant's eyes were bloodshot and watery. Defendant asserts that watery eyes can be due to sensitivity to light, smoke or "something as innocuous as being in a pool too long." Defendant contends the Law Division judge placed undue emphasis on the field sobriety tests, and maintains that his refusal to provide breath samples can be explained because he was following the erroneous advice of counsel.

We are convinced that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm defendant's DWI conviction substantially for the reasons stated in the Law Division judge's thorough and comprehensive opinion. We add the following brief comments.

Where, as here, a defendant appeals a decision of a municipal court judge to the Law Division, the court must conduct a de novo review on the record, giving "due regard to the municipal judge's opportunity to view the witnesses and assess credibility." State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). On appeal from the Law Division's decision, we must determine whether the judge's findings "'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting Johnson, supra, 42 N.J. at 162).

Intoxication for purposes of establishing a violation of N.J.S.A. 39:4-50 "not only includes obvious manifestations of drunkenness but any degree of impairment that affects a person's ability to operate a motor vehicle." State v. Zeikel, 423 N.J. Super. 34, 48 (App. Div. 2011). A conviction for DWI can be based upon an officer's observations of the defendant and the results of field sobriety tests, as informed by the officer's training and experience when dealing with intoxicated persons. See State v. Guerrido, 60 N.J. Super. 505, 510-13 (App. Div. 1960).

Moreover, reckless driving can be a factor in determining whether a driver was under the influence of intoxicating liquors, although it is not a prerequisite for finding a violation. State v. DeLuca, 208 N.J. Super. 422, 430 (App. Div. 1986), rev'd on other grounds, 108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987). A person's bloodshot eyes and the strong odor of an alcoholic beverage are factors that can be considered when determining if a person was driving while intoxicated. See State v. Bealor, 187 N.J. 574, 590-91 (2006). Furthermore, the refusal to submit to a breath test can create an inference of guilt to DWI. State v. Tabisz, 129 N.J. Super. 80, 83 (App. Div. 1974).

We are convinced that there is sufficient credible evidence in the record to support the Law Division judge's determination finding defendant guilty of DWI beyond a reasonable doubt. The evidence includes the following: defendant had been operating his vehicle at night without headlights; defendant swerved out of the left lane into the middle lane where a tractor-trailer was traveling; defendant's reaction when the officer asked him to produce his driving credentials; defendant's appearance, which included bloodshot and watery eyes; the officer's observation that he detected the odor of alcohol both inside the car defendant was driving and emanating from defendant's person; defendant's failure to successfully perform the field sobriety tests; and defendant's refusal to provide breath samples roadside and at the police station.

In his decision, the Law Division judge observed that defendant had provided explanations for some of the evidence relied upon by the State and these explanations might be valid when viewed in isolation. The judge determined, however, that consideration of the totality of the circumstances established beyond a reasonable doubt that defendant had been driving while intoxicated. We are convinced that there is sufficient credible evidence in the record for that conclusion.

Affirmed.