STATE OF NEW JERSEY v. DENNIS PRYSLAK

NOT FOR PUBLICATION WITHOUT THE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.

DENNIS PRYSLAK,

Defendant-Appellant.

___________________________________

March 3, 2016

Argued February 8, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 12-05-14.

John C. Cornish argued the cause for appellant.

Shaina Brenner, Assistant Prosecutor, argued the cause for respondent (Francis A. Koch, Sussex County Prosecutor, attorney; Ms. Brenner, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Dennis Pryslak was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50. In this appeal, defendant argues that the State failed to present sufficient evidence establishing his guilt beyond a reasonable doubt. Defendant further contends that the Law Division judge made improper credibility findings, and erred in relying on evidence related to the charge of refusing the breath test,1 of which defendant was acquitted. We disagree, and affirm.

We derive the following facts from the record. At approximately midnight on December 1, 2012, the Byram Township Police Department (BTPD) received two calls from the local McDonald's reporting that there was a customer at the drive-through window who appeared intoxicated. A McDonald's employee testified at trial that the driver, who she identified as defendant, "was very intoxicated. His eyes were glazed over, and he was fumbling." She alternately detected a "fairly strong" and a "very strong" odor of alcohol coming from within defendant's vehicle. She stated that "it took [defendant] several minutes just to focus on me and hand me the money." The employee purposely delayed giving defendant his food order until the police arrived "because [] he was very intoxicated, to the point where it wasn't right for him to be driving on the road."

Officers Victor Marin and Marcus Lisa of the BTPD responded to the call. Upon arriving, Marin saw the vehicle pulling out of a parking space and heading toward the Route 206 northbound exit of the parking lot. Marin stopped the vehicle, and asked defendant for his credentials. Defendant just looked at Marin and continued eating a hamburger. Defendant was asked a few more times for his credentials, which he eventually produced after fumbling around for them. Marin observed a strong odor of alcohol emanating from defendant, and asked him to exit the vehicle. Marin further observed that defendant was leaning for support, his speech was slurred and hoarse, and his eyes were bloodshot.

Marin administered two field sobriety tests: the one-leg stand and the walk-and-turn test. Defendant failed to properly perform both tests in accordance with the officer's verbal and physical instructions. Marin observed defendant swaying before the one-leg stand test began. While performing the test, contrary to instructions, defendant used his arms for balance and put his foot down at least three times, causing Marin to abort the test. Defendant fared no better on the walk-and-turn test. He swayed while listening to Marin's instructions, his toes did not touch his heels as the officer instructed, and he lost his balance while walking.

Officer Lisa testified that defendant was more concerned with the food he purchased from McDonald's than he was with the officer's requests for his documents. Lisa observed that defendant's movements were slow and his speech was slurred. He witnessed defendant's poor performance on the field sobriety tests, noting that defendant lost his balance three times during the one-leg stand test, and was "off balance" during the walk-and-turn test.

Officers Marin and Lisa determined, based on the totality of their observations and their training and experience, that defendant was intoxicated. They placed him under arrest and transported him to BTPD headquarters for a breath test. During the ride, Marin smelled a strong odor of alcohol coming from the rear of the patrol vehicle.

Upon arriving at police headquarters, Marin set up the Alcotest and began observing defendant for the required twenty-minute period. Marin discovered that defendant had placed a quarter in his mouth. After removing it, Marin commenced the observation period anew. However, due to a problem with the Alcotest equipment, Marin transported defendant to the Stanhope Police Department to re-administer the test. There, according to Marin, defendant did not give a valid breath sample despite being given three opportunities to do so. In response to questioning from Marin, defendant stated he drank one vodka around 10 p.m. Marin then issued summonses charging defendant with DWI and refusal to submit a breath test.

At trial, defendant presented an expert in field sobriety tests, Joseph Tafuni. Tafuni opined that Marin failed to adhere to National Highway and Safety Traffic Administration (NHSTA) standards during the instructional phase of the testing. He also testified that, during the walk-and-turn test, Marin reversed the proper starting position of defendant's feet, made no mention of a real or imaginary line that defendant was to follow, and did not obtain an acknowledgement from defendant that he understood the test instructions. Tafuni concluded that the reliability of both field sobriety tests was compromised because they were not administered properly.

The municipal court judge found a reasonable doubt as to whether defendant refused the breath test and found him not guilty of that charge. The judge found defendant guilty of DWI, noting that the testimony of the two police officers and the McDonald's employee "was consistent in the sense that all three . . . came independently to the conclusion that [] defendant was under the influence of alcohol." Because this was defendant's third DWI conviction, the court sentenced him to a 180-day jail term (of which ninety days could be served in an inpatient alcohol program), ten-year loss of driver's license, $1000 fine, and other mandatory fees and costs. The court required installation of an ignition interlock device. The municipal court stayed the jail portion of the sentence.

Upon a trial de novo on the record, the Law Division judge found defendant guilty. The judge found the McDonald's employee credible, noting that

she ultimately felt it was appropriate and necessary to call the police because they had a customer come through who was so intoxicated that it was obvious to her as a direct observer, and I think implicitly thought it was the responsible and appropriate thing to do not to let that person continue to drive on the road and to contact the police. I find her testimony credible in the sense that I'm not observing how she testifies or in the sense of demeanor, . . . but I can see what she said, how she said it, in terms of the transcript, can assess her relationship to the parties in the case, possible interest in the outcome of the case, and all in all I find her presentation as one to be credited substantially.

The judge also found the police officers credible "in terms of their description" of defendant. He determined that their testimony was "supportive and consistent" with the testimony of the McDonald's worker and defendant's efforts to avoid the breath test. The judge noted that defendant had been found not guilty of the refusal charge. Notwithstanding, defendant's use of the quarter and his efforts to avoid the breath test could be considered, "at least to some degree, [as] evidence of consciousness of guilt" on the DWI charge. The judge stated: "You do those things because you believe that the test results are not necessarily going to be favorable." The court imposed anew the sentence that the municipal court imposed, and continued the stay of defendant's jail sentence pending this appeal.

On appeal, defendant argues

POINT I

THERE [WERE] INSUFFICIENT PROOFS TO CONCLUDE [] DEFENDANT WAS UNDER THE INFLUENCE OF ALCOHOL.

POINT II

[N.J.R.E.] 303 PRESUMPTION IS INVALID AND THE INFERENCE IS INCORRECT.

POINT III

THE RULES OF COLLATERAL ESTOPPEL WERE VIOLATED IN THE DE NOVO DECISION.

POINT IV

THE EVALUATION OF WITNESSES CREDIBILITY BY THE DE NOVO COURT WAS ERRONEOUS.

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).

It is 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 State v. 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.

A DWI conviction may be based upon physical evidence, such as symptoms observed by the arresting police officers or failure of the defendant to perform adequately on balance and coordination tests. State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd o.b., 293 N.J. Super.535 (App. Div. 1996); see alsoState v. Ghegan, 213 N.J. Super.383, 385 (App. Div. 1986). A defendant's demeanor, physical appearance, slurred speech, and bloodshot eyes, together with an odor of alcohol or an admission of the consumption of alcohol and poor performance on field sobriety tests, are sufficient to sustain a DWI conviction. State v. Bealor, 187 N.J.574, 588-89 (2006); State v. Morris, 262 N.J. Super.413, 421-22 (App. Div. 1993); Ghegan, supra, 213 N.J. Super.at 385.

Given our standard of review, we are satisfied that the record contains ample credible evidence from which the Law Division judge could have found defendant guilty of DWI beyond a reasonable doubt. Johnson, supra, 42 N.J.at 162. The testimony of the State's three witnesses was consistent, and each observed that defendant appeared intoxicated. Defendant's slurred and hoarse speech, glazed and bloodshot eyes, slow and fumbling movements, and swaying, together with the strong odor of alcohol, and his admission to consuming alcohol, were more than sufficient to sustain a DWI conviction.

The judge ultimately gave little weight to defendant's performance on the field sobriety tests. He nonetheless concluded that the totality of the witnesses' observations, referenced above, were sufficient to support defendant's DWI conviction. We agree. In any event, such field sobriety tests are not required. Morris, supra, 262 N.J. Super.at 421-22 (holding that field sobriety tests are not needed to determine the effect of alcohol on a driver's physical and mental faculties where the totality of his behavior proved his guilt of DWI beyond a reasonable doubt).

Finally, we reject defendant's argument that the Law Division judge erred in considering defendant's behavior during the breath testing as evidence of consciousness of guilt on the DWI charge. The Law Division judge properly concluded that he could not disturb the municipal court's verdict finding defendant not guilty of the refusal charge. Notwithstanding, the function of the Law Division judge was to review the transcript of the municipal court trial and make an independent assessment of the evidence presented. SeeState v. Kashi, 360 N.J. Super.538, 545 (App. Div. 2003), aff d o.b., 180 N.J.45 (2004). The judge did so here, and concluded that defendant's conduct, including placing a quarter in his mouth, evidenced his consciousness of guilt. We agree that such conduct served no legitimate purpose. Moreover, it properly gave rise to an inference that defendant acted intentionally to subvert the breath test results that would be used to support the DWI charge.

Affirmed. The stay of the jail sentence is vacated.

1 N.J.S.A. 39:4-50.2.