STATE OF NEW JERSEY v. JAMES CUMMINGS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0243-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES CUMMINGS,

Defendant-Appellant.

December 19, 2016

Submitted November 3, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 66-2014.

Jack Venturi, attorney for appellant.

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Cummings appeals from his de novo conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50.1 Defendant argues for reversal of his DWI conviction, asserting the record lacks sufficient credible evidence to uphold the Law Division's finding of guilt beyond a reasonable doubt. We reject defendant's argument and affirm.

We derive the following facts from the trial record.2 At approximately 10 p.m. on October 10, 2013, South Plainfield Police Officers Brian Zielinski and Craig Magnani responded to a report of a motor vehicle accident. When they arrived at the scene, they saw a Ford van had driven partially over a curb and crashed into a tree. They found no one in the car, but saw defendant walking away from the scene, more than a block away.

While Officer Magnani went to speak with defendant, Officer Zielinski stayed with the van. From outside the van, Officer Zielinski saw three open and nine closed bottles of cold Becks beer, which he seized. Officer Magnani testified defendant swayed as he approached him. Officer Magnani asked defendant if he was in a motor vehicle accident, and he said yes. He also admitted he left work around 6:30 p.m. and drank six beers at a bar afterwards. Defendant explained he crashed into the tree after he swerved to avoid hitting a deer. He said he was walking to his home, located about three blocks away. During this conversation, Officer Magnani observed defendant "was swaying, a little bit," and "[h]is speech was slurred." His eyes were also bloodshot, with "the odor of an alcoholic beverage emanating from him."

Officer Magnani asked defendant to recite the alphabet from "D" to "V." Defendant started at "D" and continued to "Z," instead of stopping at "V." Officer Magnani then administered standardized field sobriety tests. The first test was the walk-and-turn. Officer Magnani testified defendant walked hesitantly to keep his balance, failed to put his feet heel to toe, lost his balance repeatedly, put his feet to the side to catch himself, improperly raised his arms for balance, turned incorrectly, and took the wrong number of steps. Officer Magnani allowed defendant to try to pass the test three times, and he failed each time.

The next test was the one-legged-stand. According to Officer Magnani, defendant raised his arms and put his foot down three times to keep his balance. When defendant complained of intestinal problems, Officer Magnani called for emergency medical services, who found defendant had high blood pressure and consequently took him to the hospital.

Defendant did not testify; however, the defense did present expert testimony from Gilbert Snowden, a former New Jersey State Trooper. Snowden said when Officer Magnani administered the walk-and-turn test, he should have told defendant to "watch his feet at all times." He also suggested defendant may have taken the tests on "a downward slant," but then acknowledged he had "no idea" whether the testing ground was slanted, before concluding, "[n]ow I'm not saying that that invalidated [the] test, where he was at. I'm just saying it should be taken into consideration, if that is a slant." He also testified high blood pressure could mimic "impairment."

Based upon the testimony of Officer Magnani, and at least two videos of the officers' encounter with defendant, the municipal judge found defendant guilty of DWI, careless driving, the open container charge, and leaving the scene of an accident. The judge concluded defendant's expert was not qualified to testify whether high blood pressure could have mimicked the effects of alcohol.

On trial de novo, Judge Alberto Rivas found the record supported the municipal judge's factual findings. He rejected defendant's challenges and concluded the officers' testimony and the videos were sufficient to find defendant guilty of DWI and the other charges beyond a reasonable doubt. He convicted defendant and imposed the same sentence as the municipal court.

This appeal followed, with defendant raising the following point

THE RECORD LACKS SUFFICIENT CREDIBLE EVIDENCE TO UPHOLD THE FINDING OF THE LAW DIVISION JUDGE, THUS, MR. CUMMINGS SHOULD BE FOUND NOT GUILTY OF [DWI].

We reject this argument and affirm substantially for the reasons set forth by Judge Rivas in his cogent oral opinion. We add the following comments.

Where a municipal court judgment has been appealed to Superior Court, this court reviews whether sufficient evidence supports the Law Division judgment. State v. Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009) (holding under Rule 3:23-8(a), "the Law Division's judgment must be supported by sufficient credible evidence in the record" (citing State v. Segars, 172 N.J. 481, 488 (2002))), certif. denied, 202 N.J. 346 (2010). We uphold the factual findings underlying a trial judge's decision as long as "those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Thus, appellate courts should reverse only when the trial court's determination is 'so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). However, we consider any legal issues de novo, without affording special deference to the trial court's interpretation of the law and the legal consequences that flow from established facts. State v. Goodwin, 224 N.J. 102, 110 (2016).

On appeal, defendant argues the State's evidence was insufficient to prove intoxication beyond a reasonable doubt. In State v. Bealor, 187 N.J. 574 (2006), the New Jersey Supreme Court underscored "evidentially competent lay observations of the fact of intoxication are always admissible." Id. at 577. Understanding "sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication." Id. at 585 (citing Searles v. Pub. Serv. Ry. Co., 100 N.J.L. 222, 223 (Sup. Ct. 1924)). "An ordinary citizen is qualified to advance an opinion in a court proceeding that a person was intoxicated because of consumption of alcohol. The symptoms of that condition have become such common knowledge that the testimony is admissible." State v. Smith, 58 N.J. 202, 213 (1971).

Moreover, police officers, who receive specific training to recognize signs of drunk driving and intoxication, are equally competent to proffer such opinion. Indeed, it is well-established that an officer's subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. State v. Cryan, 363 N.J. Super. 442, 456-57 (App. Div. 2003) (sustaining DWI conviction based on observations of defendant's bloodshot eyes, hostility, and strong odor of alcohol); State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on officer's observation of the defendant's driving without headlights on, inability to perform field sobriety tests, combativeness, swaying, and detecting an odor of alcohol on the defendant's breath); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001) (sustaining DWI conviction based on officer's observations of watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and defendant's admission to drinking alcohol earlier in the day).

Following our review, we conclude the State produced sufficient credible video and testimonial evidence from the officers who observed defendant to find him guilty of DWI beyond a reasonable doubt. Defendant admitted he drank six beers sometime after 6:30 p.m. and then crashed his car into a tree sometime before 10:00 p.m. Officer Zielinski found three open, near-empty beer bottles and nine cold unopened ones from the same twelve-pack in his car. Defendant left the scene of the accident to go home.

As Judge Rivas summarized, when Officer Magnani interacted with him, defendant emitted "an odor of alcohol, had bloodshot eyes, droopy eyelids, slurred speech, spoke slowly, had difficulty walking and maintaining his balance, and . . . was also observed swaying." Then he failed the field sobriety tests.

Under the totality of the circumstances, the Law Division's factual findings, supported by the record, provide sufficient grounds for an objectively reasonable conclusion defendant operated a motor vehicle in violation of the DWI statute. Any arguments not specifically addressed lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Defendant was also convicted of careless driving, N.J.S.A. 39:4-97; possession of an open alcoholic beverage container in a motor vehicle, N.J.S.A. 39:4-51b; and leaving the scene of an accident, N.J.S.A. 39:4-129. However, he has not appealed from these convictions.

2 Before trial, the court granted defendant's motion to suppress the results of a blood test of defendant.