STATE OF NEW JERSEY v. ALIBEK SHAYMARDANOV

NOT FOR PUBLICATION WITHOUT THE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/

Cross-Appellant,

v.

ALIBEK SHAYMARDANOV,

Defendant-Appellant/

Cross-Respondent.

_______________________________

ArguedMarch 16, 2015 - Decided August4, 2015

Before Judges Lihotz and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-32-13.

Robert Bond argued the cause for appellant/cross-respondent.

Jason Magid, Assistant Prosecutor, argued the cause for respondent/cross-appellant (MaryEva Colalillo,Camden CountyProsecutor, attorney; Mr. Magid, of counsel and on the brief).

PER CURIAM

Defendant Alibek Shaymardanov appeals from a January 9, 2014 Law Division order, following trial de novo, denying his request to vacate municipal court convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit a breath sample, N.J.S.A. 39:4-50.4(a).1 The State cross-appealed, challenging the sentence imposed for refusal and also arguing the concurrent sentences imposed by the Law Division for the convictions should be consecutive. We affirm defendant's convictions and remand for resentencing on the refusal conviction.

We recite the following facts taken from the record as found by the Law Division. During the municipal court trial, testimony was presented from defendant, assisted by an interpreter, and the arresting officer.

At 2:20 a.m. on April 6, 2012, Pennsauken Township Police Officer Raymond Kern responded to a radio call from a Wawa convenience store manager, who related defendant's report of a motor vehicle collision. Officer Kern drove to the Wawa and spoke to defendant. The officer asked defendant whether he spoke and understood English. Defendant responded he spoke English "very well," as he owned a business. Officer Kern testified he had no difficulty understanding or communicating with defendant.

Defendant explained he was driving from a friend's home in Cherry Hill when "a green BMW cut me the fuck off." He continued, "[i]f he wants to fight with me, we'll fight." He stated his wrist was sore, but he declined an offer of medical assistance. Defendant stated after the accident, he left his car and walked directly to the Wawa. He accompanied Officer Kern to the accident scene, a ramp from Haddonfield Road to Route 73 North, relating easily understood directions.

While speaking to defendant, Officer Kern observed defendant's "eyes were bloodshot and watery," his "speech was slow and slurred," and "he was swaying." When the two arrived at the accident scene, Officer Kern opened the rear patrol car door for defendant to exit, and noticed "a strong odor of an alcoholic beverage emitting from the rear compartment area" of the vehicle. Officer Kern asked defendant whether he had consumed any alcoholic beverages after the collision occurred, and defendant responded, "No, [I] did not." He admitted, however, he had "a few beers" at a friend's house before the accident.

At this point, defendant's demeanor changed. He told Officer Kern he had a commercial driver's license and believed Officer Kern "was going to fuck him." Officer Kern asked defendant to perform field sobriety tests, which he refused, stating, "No, you're not a nice man. I own a trucking company, and you're going to fuck me." Defendant "refused to answer any other questions[, and] became belligerent . . . ." Officer Kern issued Miranda2 warnings and arrested defendant.

At police headquarters, Officer Kern observed defendant for twenty minutes in preparation for conducting an Alcotest, to determine defendant's blood-alcohol content.3 Next, he read the English version of the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle (standard statement), N.J.S.A. 39:4-50.2(e). Defendant demonstrated he understood and agreed to participate and "blow in the machine," but refused to sign the statement.

Officer Kern issued instructions on how to perform the Alcotest. However, when defendant was told to blow into the machine to provide a breath sample, Officer Kern testified, "he attempted to manipulate the machine . . . it was obvious." On two separate occasions, defendant "put his mouth on the mouthpiece, . . . would blow a small portion [of air] and pull away," producing insufficient air volume for the machine to register. Officer Kern reread the standard statement outlining the consequences of refusing, non-compliance, and failure to provide sufficient breath samples. At that point, defendant stated: "No, I'm done. You're trying to fuck me." Officer Kern acknowledged all questions were posed in English and stated defendant demonstrated no difficulty in understanding and responding.

The State admitted into evidence foundational documents from the Alcotest machine. Also included was the Alcohol Influence Report, reflecting defendant's answers to specific questions prior to administration of the test and recording the two breath tests failed because of minimal air volume.

Defendant, a native of Uzbekistan, testified on his own behalf, aided by a Russian translator. He described the accident, which occurred as he drove home from Atlantic City. He stated after he dropped off a woman who asked for a ride, he was cut off by another driver. He swerved and hit the curb. Upon impact, the airbag deployed, emitting a gas that caused his eyes to swell. On his walk to the Wawa, he encountered a group of men and women "just relaxing" next to a car. He asked if they would make a phone call for him as he was in an accident. They refused, but offered him a beer. Defendant "had a drink" and "washed his eyes" with the beer. He continued to walk to the Wawa, where he asked the clerk to call the police, because his hand was broken and he "didn't speak enough English to make the proper call."

Defendant described the accident and took Officer Kern to its location. He discussed the group who gave him a drink and asked Officer Kern to call his wife, because she spoke English. Defendant testified Officer Kern searched his car and found nothing, but took him to police headquarters.

Defendant also testified he requested an ambulance and again asked Officer Kern to call his wife; both requests were ignored. He also maintained he did not understand the questions. Officer Kern told him to blow into the machine five times, then said: "Here you are, a Russian. Look at your shoes; they're too cool, and the car is expensive. Where do you work? How do you make money?" Defendant insisted he performed all the tests given and "did everything exactly as . . . instructed," and "[t]he same number would come up every single time." He denied being rude or uncooperative; instead, he claimed Officer Kern was "making fun" of him.

Recounting Officer Kern's testimony, the municipal court judge found him to be "internally consistent and credible"; "clear and unequivocal"; and "believable." On the other hand, he found defendant's testimony was "totally incredible"; was replete with accusations of denying medical conduct and bigotry; and contained contradictory statements between direct and cross-examination, which reflected his attempt "to avoid prosecution . . . ." The judge found defendant admitted he understood the questions asked, admitted certain aspects of Officer Kern's testimony, and challenged others as inaccurate. However, he also said he did not understand the questions, and presented a "fallback position" that although he understood English, he "didn't understand it all." The municipal court judge found "defendant [wa]s not telling the truth." Further supporting his findings, the municipal court judge observed defendant was "very demure and soft-spoken" on direct examination, but "animated and aggressive" during cross-examination with his eyes "dart[ing] around the room."

The municipal court judge concluded defendant refused the Alcotest and operated his vehicle while under the influence. In sentencing defendant, who had a prior July 25, 2011 conviction for DWI, the judge imposed an enhanced sentence of a two-year license suspension for the DWI and a one-year suspension on the refusal; thirty days community service; instruction at the Intoxicated Driver's Resource Center; use of a steering wheel interlock device for one year; and assessed applicable fines, penalties, assessments, and costs.

Defendant appealed to the Law Division, which conducted a trial de novo. The judge denied defendant's motion to vacate his conviction and dismiss the charges, concluding the State provided sufficient evidence to prove each of the underlying offenses beyond a reasonable doubt. The judge found defendant's testimony was not credible, recognizing deference to the municipal court judge's credibility findings based upon his observation of the witnesses' demeanor and manner of testifying, along with the enumeration of instances of inconsistencies. The judge found defendant understood English, specifically pointing out an instance during the Law Division proceeding when the judge made a statement to which defendant reacted by addressing his attorney without the benefit of the interpreter. The Law Division judge found Officer Kern's testimony credible, which supported the convictions beyond a reasonable doubt, leaving "no basis to overturn the factual findings made and the guilty findings as to the DWI and refusal charge[s]." The judge imposed the same sentence as the municipal court, but amended the license suspensions for DWI and refusal to run concurrently.

Following defendant's appeal, the State moved to file cross-appeal as within time. This court granted the motion on August 13, 2014.

On appeal defendant argues

POINT ONE

OFFICER KERN HAD EASY ACCESS TO THE WRITTEN D[W]I/REFUSAL WARNING AND ACCESS TO "LANGUAGE LINE" OR MR. SHAYMARDANOV[']S WIFE TO HELP WITH THE TRANSLATION, BUT THE OFFICER DID NOT USE ANY OF THE RESOURCES CREATING A SITUATION WHERE MR. SHAYMARDANOV DID NOT COMPREHEND COMPLICATED REFUSAL LANGUAGE OR BREATHALYZER INSTRUCTIONS.

POINT TWO

THE STATE FAILED TO DEMONSTRATE B[E]YOND A REASONABLE DOUBT THAT MR. SHAYMARDANOV OPERATED HIS MOTOR VEHICLE WHILE HIS BLOOD ALCOHOL LEVEL WAS ABOVE 0.10% BY NOT PROVIDING EVIDENCE OF FAILED SOBRIETY TEST NOR ABNORMAL BREATH SAMPLES AS REQUIRED BY N.J.S.A. 39:4-50.4a.

The State cross-appeals, arguing

POINT [III]

THE DE NOVO COURT FAILED TO IMPOSE AN ENHANCED SENTENCE FOR DEFENDANT'S VIOLATION OF N.J.S.A. 39:4-50[.4]a DESPITE HIS PRIOR CONVICTION AND FURTHER, IMPROPERLY DETERMINED HE COULD SERVE HIS LICENSE SUSPENSIONS FOR HAVING VIOLATED N.J.S.A. 39:4-50 AND N.J.S.A. 39:4-50.4a CONCURRENTLY WHEN DEFENDANT WAS STATUTORILY REQUIRED TO SERVE THOSE TERMS OF SUSPENSION CONSECUTIVELY THEREFORE, THE ILLEGAL SENTENCE DEFENDANT RECEIVED MUST BE REVERSED.

Review of a municipal court conviction is first addressed by the Superior Court, de novo. R. 3:23-8(a). The Law Division must independently issue findings of facts and conclusions of law based on the record, as developed by the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). See also State v. Ross, 189 N.J. Super. 67, 75 (App. Div.) (stating the Law Division performs "an independent fact-finding function in respect of defendant's guilt or innocence"), certif. denied, 95 N.J. 197 (1983). Our review of the Law Division's de novo decision is limited to "whether there was sufficient credible evidence in the record to have led to the judge's findings." Avena, supra, 281 N.J. Super. at 333.

A higher degree of deference applies where the two lower courts have made concurrent findings on a factual issue. State v. Locurto, 157 N.J. 463, 474 (1999). In these cases, we do not "alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid.

Defendant first contends his refusal conviction must be vacated because he possessed only a rudimentary understanding of English, which impeded his understanding of the consequences of refusing the Alcotest. He believes the warning should have been provided in his native language, as mandated by State v. Marquez, 202 N.J. 485, 490 (2010) (holding refusal and implied consent statutes "require proof that law enforcement officials inform motorists of the consequences of refusal by conveying information in a language the person speaks or understands"). Accord State v. Rodriquez-Alejo, 419 N.J. Super. 33, 40 (2011) ("[R]eading the standard statement to motorists in a language they do not speak is akin to not reading the statement at all. The latter scenario renders a conviction defective." (citation and internal quotation marks omitted)).

We reject defendant's asserted application of these authorities to the facts at hand. The judges found that although defendant was not a native English speaker, he understood and spoke English well. The record supports these findings. Specifically, Officer Kern's testimony recounting his interactions with defendant, including no instance when he could not understand defendant or defendant could not understand him. Further, defendant's trial testimony displayed his knowledge and understanding of English, which was used during his encounter with the group of adults who allegedly gave him beer, his conversation with the Wawa store manager, and when providing explicit directions to the accident scene to Officer Kern.

The municipal court judge reviewed the evidence and found "defendant does speak English. I find as fact he spoke coherently and clearly to the officer" but, at trial developed a "fallback position" that he did not understand English very well. Also, the Law Division judge stated there was no evidence refuting Officer Kern's testimony relating his English interactions with defendant, who did not deny the statements ascribed to him as recorded in the officer's incident report. The Law Division judge also independently observed defendant's understanding when he watched defendant react to a comment made by immediately conferring with counsel without waiting for the interpreter's assistance.

Both the municipal court judge and the Law Division judge assessed and rejected defendant's testimony as not credible. We defer to these findings, which we determine are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013).

Appellate courts should defer to trial courts' credibility findings that 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. Jamerson, 153 N.J. 318, 341 (1998); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Johnson, supra, 42 N.J. at 161. Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error. Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952).

[Locurto, supra, 157 N.J. at 474.]

See also State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

In light of our deference to supported findings, we conclude defendant's refusal conviction was well-supported by the Law Division judge's independent consideration of all the evidence. The conviction will not be disturbed.

Next, we flatly reject as meritless, R. 2:11-3(e)(2), defendant's unsupported suggestion he voluntarily ingested alcohol after the accident as defeating a conviction for operation of a motor vehicle while intoxicated, "popularly known as the 'glove box' defense." State v. Snyder, 337 N.J. Super. 59, 61 n.1 (App. Div. 2001). Not one shred of corroborative objective or circumstantial evidence exists to support this supposition. Under these circumstances, the court's finding of intoxication while operating a motor vehicle is unassailable based on Officer Kern's credible observational evidence, as found by the Law Division. See State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992) ("Operation may be proved by any direct or circumstantial evidence as long as it is competent and meets the requisite standards of proof.").

Defendant was involved in a single car accident, after which his eyes were bloodshot, he swayed while standing, and he spoke with slurred speech. The odor of alcohol emanated from the area where defendant sat in the patrol car, his demeanor was marked by belligerence, and he adamantly refused to participate in field sobriety tests. This observational evidence, even absent field sobriety tests and Alcotest results, is sufficient to prove intoxication beyond a reasonable doubt. See State v. Morris, 262 N.J. Super. 413, 421 (App. Div. 1993) (holding defendant's slurred speech, abrasive behavior, disheveled appearance, and instability sufficient to find intoxication beyond a reasonable doubt); State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995) (holding police officer's observations without field sobriety test evidence sufficient to support DWI conviction), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996).

We turn to the State's cross-appeal. Challenging the sentence issued by the Law Division, the State argues defendant's prior DWI conviction requires his refusal conviction be considered as a second offense and N.J.S.A. 39:4-50.4a mandates the license suspensions for DWI and refusal run consecutively, not concurrently.

"The plain language of the refusal statute requires that a municipal court judge sentence an individual based on the number of prior offenses that he or she has committed." State v. Frye, 217 N.J. 566, 568 (2014) (citing N.J.S.A. 39:4-50.4a). "The statute provides that a person convicted of refusal will be subject to enhanced penalties if 'the refusal was in connection with a second[, third, or subsequent] offense under this section.'" Ibid. (alteration in original) (quoting N.J.S.A. 39:4-50.4a). A defendant's prior DWI convictions are appropriately considered for purposes of enhancing his sentence for a subsequent conviction for refusal to submit a breath test. Id. at 569.

The plain language of N.J.S.A. 39:4-50.4a states if "the refusal was in connection with a second offense under this section," the driver is subject to a two-year license suspension. Frye put to rest the controversy surrounding the meaning of that sentence, reaffirming the Supreme Court's holding in In re Bergwall, 85 N.J. 382 (1981), which emphasized a refusal can only be "in connection with" a DWI arrest, not "in connection with" another refusal. Frye, supra, 217 N.J. at 578-79. Thus, the Law Division erred in not imposing a two-year license suspension for defendant's refusal conviction, along with applicable fines, assessments, and penalties. See State v. Taylor, 440 N.J. Super. 387, 389-90 (App. Div. 2015) (holding prior DWI convictions enhanced the sentence of a defendant who pled guilty to refusal prior to the Court's holding in Frye, noting Frye merely "reaffirmed the vitality of Bergwall that a prior DWI conviction will enhance the sentence on a subsequent refusal conviction").

The State provides no legal argument to challenge the court's imposition of concurrent sentences. Because that argument was never addressed in the cross-appellant's brief it is deemed waived. SeeR.2:6-2(a)(5); accordEl-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 155 n.2 (App. Div. 2005) (holding an issue that is not briefed is deemed waived upon appeal); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015).

Accordingly, defendant's convictions are affirmed. We remand for correction of the sentence imposed on the refusal conviction.

Affirmed in part and reversed in part.

1 Defendant was also charged with reckless driving, a charge that was merged into the conviction for DWI.

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

3 Widely used in New Jersey, "[an] Alcotest measures the amount of alcohol present in a person's breath as an indirect measure of the amount of alcohol present in the person's blood." State v. Carrero, 428 N.J. Super. 495, 505 (App. Div. 2012) (citing State v. Chun, 194 N.J. 54, 78, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008)).