STATE OF NEW JERSEY v. NEIL COLABELLA

NOT FOR PUBLICATION WITHOUT THE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.

NEIL COLABELLA,

Defendant-Appellant.

_______________________________

August 26, 2016

Before Judges Lihotz, Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2014-048.

Gruber, Colabella & Liuzza, attorneys for appellant (Daniel P. Agatino, of counsel and on the brief; Virginia D. Liotta, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs,Special DeputyAttorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Neil Colabella appeals from a December 8, 2014 Law Division conviction following de novo review of a municipal court adjudication. Defendant was found guilty of turning on a red light, N.J.S.A. 39:4-115; driving while intoxicated, N.J.S.A. 39:4-50(a); and failure to inspect his vehicle, N.J.S.A. 39:8-1.1 The Law Division, following a trial de novo, again convicted defendant and imposed the same sentence. The judge stayed imposition of the sentence pending appellate review.

On appeal, defendant argues

POINT I.

THE LOWER COURT'S CONVICTION OF THE DEFENDANT FOR DRIVING WHILE INTOXICATED IN VIOLATION OF N.J.S.A. 39:4-50 WAS UNREASONABLE AND UNSUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD WHEN HIS BLOOD ALCOHOL CONTENT WAS IRREFUTABLY 0.06%.

a. The lower court did not offer any reasonable basis or support for characterizing this case as an "under the influence case" and convicting the defendant based upon circumstantial evidence of intoxication when his blood alcohol concentration was well below the legally proscribed limit.

b. As pertains to alcohol, the statute implicitly required that, "under the influence" be defined as the functional equivalent of a 0.08% BAC level.

Following our consideration of the arguments presented on appeal and our examination of the record in light of applicable legal standards, we affirm.

The State presented testimony from the arresting officer and a Drug Recognition Expert (DRE). Additionally, it introduced the video of the encounter recorded by the police vehicle.2

Cedar Grove patrol officer Jose Rodriguez initiated a motor vehicle stop after observing the operator turn right from the left traffic lane, despite a red traffic signal and a sign posted disallowing right turns when the signal was red. Officer Rodriguez also noted the vehicle contained a failed inspection sticker. Instructing the driver to provide his credentials, Officer Rodriguez recognized the "strong odor of alcohol emanating from the vehicle." The driver, identified as defendant, was leaning toward the passenger side of the car, his speech was slow and slurred, and his eyes blood shot and watery. When asked, defendant admitted he consumed one beer and ingested ibuprofen.

Defendant was instructed to exit the vehicle to perform field sobriety tests. He "grabbed" the car for balance and as he walked with the officer toward the rear, Officer Rodriguez assisted him to assure defendant "did not fall over." Defendant informed the officer he suffered nerve damage and was unable to properly perform physical tests. In fact, defendant performed the physical tests poorly. Additionally, defendant was unable to follow Officer Rodriguez's instructions on all tests, including when asked to recite specific letters of the alphabet. During each test, defendant swayed from "side to side." A breath test recorded defendant's blood alcohol concentration (BAC) as .06%.

DRE Officer Dominick Buscio was consulted because defendant's observed level of impairment was inconsistent with the BAC results. He too recognized a strong odor of alcohol emanated in the room where defendant sat, observed defendant's eyes were bloodshot and watery, and his speech was slow and slurred. Defendant informed this officer he had a cold and consumed one and one-half mugs of beer earlier in the day. From his testing, Officer Buscio concluded defendant was under the influence of alcohol, not another substance, and his ability to operate a motor vehicle was adversely affected by his condition.

Defendant testified. He stated, after he made a right turn, he swerved to avoid a collision with a car that cut him off. He also described his encounter with Officer Rodriguez, insisting he drank only a twelve-ounce mug of Budweiser with lunch. Defendant explained his legs were injured when he played football, which was aggravated by the cold weather, making him unable to perform the field sobriety tests.

Defendant presented testimony from his friend who accompanied him to lunch and witnessed defendant drink one or possibly two bottles of Heineken. The witness was in the car when defendant swerved after turning right, to avoid a car that cut him off.

Defendant presented an expert, who discussed alcohol impairment. On cross-examination he agreed a BAC of .06% was "indicative of more than just one bottle of Heineken," stating the result reflected alcohol consumption greater than that found in one regular sized bottle of beer.

The municipal court judge (MCJ) credited the testimony of Officer Rodriguez, finding defendant failed to stop at the red light and turned right against the posted prohibition. Discussing the stop, the MCJ related his observations while watching the videotaped recording. He found defendant and his witness gave inconsistent stories making neither credible on the issue of the amount of alcohol defendant consumed at lunch. The judge found defendant was impaired while driving and concluded he was guilty of DWI and the other motor vehicle offenses.

On trial de novo, the Law Division judge accepted the credibility determinations of the MCJ, which she found to be supported by the trial record. The Law Division judge rejected defendant's challenges and concluded the observations by the testifying police officers were sufficient to find defendant guilty of DWI beyond a reasonable doubt, despite the results of the breath test, which she acknowledged did not support a statutory per se violation. She convicted defendant and imposed the same sentence as the municipal court. Sentencing was stayed pending this court's review.

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, principally because the BAC, as recorded by the Alcotest, did not reach the statutory level of .08% required for a per se offense. See N.J.S.A. 39:4-50(a) (providing a person who operates a motor vehicle is considered under the influence of intoxicating liquor if his or her BAC is 0.08% or more by weight of alcohol in the blood). Because defendant's BAC was "well under" the legal limit, defendant seeks reversal of his conviction.

In State v. Bealor, 187 N.J. 574 (2006), the Court underscored "evidentially competent lay observations of the fact of intoxication are always admissible." Id. at 576. 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 testimonial evidence by the officers who observed defendant to convict him of DWI beyond a reasonable doubt. As discussed in the Law Division judge's opinion, Officer Rodriguez observed defendant making a wide, right turn from the left lane, even though the traffic signal was red. That traffic violation triggered the motor vehicle stop. Officer Rodriguez testified defendant smelled of alcohol, had red watery eyes, admitted drinking, exhibited slow, slurred speech, stumbled and used the vehicle to balance himself when exiting the car, failed to follow instructions for physical and non-physical field sobriety tests, and swayed from side to side. These observations were collaborated by the credible testimony of Officer Buscio. Under the totality of the circumstances, the facts as found by the Law Division supported by the record provide sufficient grounds for an objectively reasonable conclusion defendant had operated a motor vehicle in violation of the DWI statute.

Finally, we reject defendant's contention that absent Alcotest results reflecting a BAC of .08%, he cannot be found guilty of driving while intoxicated. The police officers' observational evidence was weighed by the judge, who also considered defendants' testimony, the testimony of his fact and expert witnesses, and the Alcotest results. Because sufficient evidence to convict defendant of DWI beyond a reasonable doubt was found solely based on the observations of the officers, the Law Division's legal conclusion will not be disturbed. Bealor, supra, 187 N.J. at 588-89; State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993).

Affirmed.

1 Defendant was issued a fourth motor vehicle offense summons, driving while intoxicated in a school zone, N.J.S.A. 39:4-50(g), for which he was acquitted.

2 Despite a reference on the transcript cover that the recording was included, the video is not part of the appellate record.