STATE OF NEW JERSEY v. EDMUND D. MOORE

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2300-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDMUND D. MOORE,

Defendant-Appellant.

__________________________________________

May 30, 2013

 

Argued December 4, 2012 - Decided

 

Before Judges Alvarez and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 11-11.

 

Peter J. Bonfiglio, III, argued the cause for appellant (Law Offices of Hoffman DiMuzio, attorneys; Mr. Bonfiglio and Joseph J. Hoffman, III, of counsel and on the brief).

 

Joseph H. Enos, Jr., Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Mr. Enos, on the brief).

 

PER CURIAM

Defendant Edmund Moore appeals from a judgment of conviction after his trial de novo for two motor vehicle violations: driving while intoxicated (DWI), N.J.S.A. 39:4-50; and maintenance of lamps, N.J.S.A. 39:3-66. Defendant was sentenced to 180 days of imprisonment; referral to an Intoxicated Driver Resource Center (IDRC); a ten-year revocation of his driver's license; and fines, penalties and assessments totaling $1453.1 We affirm.

I.

The record discloses the following facts adduced from the municipal court trial and the trial de novo in the Law Division. On April 24, 2010, at approximately 1:41 a.m., Officer Jason Neely of the Township of Woodbury Heights Police Department observed a vehicle being operated by defendant with its tail lights not illuminated. Based upon this observation, Officer Neely stopped the vehicle. Officer Neely asked defendant for his credentials, but defendant was unable to produce his license. When defendant turned and answered, Officer Neely noticed that defendant's eyes were bloodshot. He also detected an odor of alcohol coming from within the vehicle. Defendant admitted he was coming from the Southwood Bar and that he had ingested a six-pack of beer. It is not contested that the front seat passenger had also been drinking.

Defendant was then asked to state the alphabet without singing it, which the officer asserted was done incorrectly. The officer stated that while administering the alphabet test to defendant, he detected an odor of alcohol beverage coming from defendant's breath. He asked defendant to exit the vehicle. The officer testified that, "when he stepped out, he kind of staggered and I asked him to walk to the rear of the vehicle." The officer stated that when defendant got to the rear of the vehicle, he placed his hand on the trunk lid and the officer had to ask him several times to step up onto the sidewalk before he actually did it. After the officer demonstrated the one-leg stand test, defendant advised the officer that he had knee injuries. The officer then requested that defendant perform a test where he would touch the tip of his nose, but defendant instead touched the side of his nose. He was then asked to count from one to thirty, leaving out the number thirteen. While doing this, defendant omitted the number eight and began to say the number thirteen, but stopped himself after saying "THIR." Defendant was placed under arrest. The police vehicle was equipped with a video system which captured the incident. Both the municipal judge and the Law Division judge reviewed the video.

At the police station, Officer Neely removed his portable radio and cell phone and placed them in the police locker room. That locker area is separate from the room containing the Alcotest equipment. Defendant was asked if he would be willing to provide a breath sample, and he consented. The proceedings were captured on video. Neely administered the breathalyzer twice and completed an Alcohol Influence Report (AIR).

At the municipal trial, the State moved to admit the AIR into evidence. Defendant objected to its admission on the grounds that the State did not comply with the protocol for the admission of the AIR. Defendant stated that there was no evidence that the officer changed the mouthpiece between the two breath samples as required. The video did not disclose whether or not it was changed. At this point in the trial, the State had not rested. The municipal judge allowed the question to be asked and Officer Neely responded that he had changed the mouthpiece. The officer then stated that the AIR demonstrated a .18 blood alcohol content. As to certain electronic equipment present in the room containing the Alcotest equipment, Neely stated that they were either off or in hibernation mode.2

In response to questioning by Neely, defendant stated he had been drinking Budweiser beer at the Southwood Bar and that he had seven beers. He also gave a timeframe of 8:30 p.m. to 1:45 a.m. when he ingested the alcohol. He did not give a timeframe for his drinking during the initial stop. Neely further testified that, based on his training and experience, defendant was under the influence of alcohol when he was operating the vehicle.

On March 14, 2011, the municipal court judge, Thomas G. Heim, found defendant guilty and sentenced him. Following a trial de novo, Judge M. Christine Allen-Jackson, in a comprehensive written opinion, concluded that the facts established beyond a reasonable doubt that defendant was guilty of DWI and failing to maintain the lamps on his vehicle.

II.

On appeal, defendant raises the following issues:

POINT I

 

THE STATE FAILED TO ESTABLISH PROBABLE CAUSE FOR THE ARREST OF DEFENDANT.

 

POINT II

 

THE DEFENDANT'S BAC SHOULD NOT HAVE BEEN ADMITTED BECAUSE THE ALCOTEST WAS NOT ADMINISTERED ACCORDING TO OFFICIAL PROCEDURE AS REQUIRED BY STATE V. CHUN.

 

A. BECAUSE THE STATE FAILED TO REMOVE ALL ELECTRONIC DEVICES FROM THE TESTING ROOM, THE LAW DIVISION JUDGE ERRED IN ADMITTING DEFENDANT'S BREATH TEST RESULT.

 

B. BECAUSE THE STATE FAILED TO ESTABLISH THAT THE MOUTHPIECE TO THE ALCOTEST WAS CHANGED BETWEEN BREATH SAMPLES, THE LAW DIVISION JUDGE ERRED IN ADMITTING DEFENDANT'S BREATH TEST RESULT.

 

POINT III

 

THE STATE FAILED TO ESTABLISH THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT.

 

Critical to our consideration of this appeal is our standard of review. We state the basic principles that inform our consideration of the issues raised on appeal.

Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 157 (1964)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).

Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "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." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). The Law Division judge clearly understood that her role was to make independent findings; findings that, ultimately, were reflected in her written opinion.

In challenging the finding of probable cause for arrest, defendant argues Neely had no reasonable grounds to believe defendant operated his vehicle while intoxicated. We disagree.

"The Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution protect '[t]he right of the people to be secure . . . against unreasonable searches and seizures.'" State v. Brown, 205 N.J. 133, 144 (2011) (alteration in original). Therefore, in the absence of a warrant, a police officer must have probable cause to effectuate an arrest. Ibid. Although "probable cause" has not been precisely defined by the courts, it is well-established "that a principal component of the probable cause standard 'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Moore, 181 N.J. 40, 45 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)). Thus, an officer must have a "well-founded suspicion or belief" the arrestee is guilty of some crime. State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (citing State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985)). Probable cause requires more than a bare hunch or suspicion, but less than the legal evidence required for conviction beyond a reasonable doubt. State v. Waltz, 61 N.J. 83, 87 (1972). In the context of an arrest for DWI, "the yardstick . . . is whether the arresting officer had reasonable grounds to believe that the driver was operating a motor vehicle in violation of [N.J.S.A.] 39:4-50." Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967) (internal quotation marks omitted).

In her review, the Law Division judge examined the totality of the evidence and found:

Officer Neely initiated a lawful, motor vehicle stop because the vehicle had non-operational tail lights, a violation of N.J.S.A. 39:3-55. Officer Neely's observation of the violation gave him a basis for the stop because a motor vehicle offense was being committed. Defendant's bloodshot eyes, the odor of alcohol on defendant's breath, the observation of the officer that defendant leaned on the vehicle in order to help himself up onto the curb and defendant's admission that he had consumed a six pack of beer, gave the officer a reasonable articulable suspicion justifying a field sobriety test.

 

Once defendant was subjected to the field sobriety test, the officer was able to establish probable cause to arrest him for driving while intoxicated. While defendant performed the finger to nose test, he did not touch the tip of his nose as instructed, but instead touched the side of his nose. He was able to say the alphabet without incident. He failed to following instructions to count to thirty, omitting the number thirteen. Defendant omitted the number eight and began to say the number thirteen but stopped himself after saying, "thir . . ." No further physical tests were utilized because the officer accepted defendant's assertion that he had a previous injury to his leg.

 

The State's proofs warrant a finding that Neely had reasonable grounds to believe defendant drove the car while under the influence of alcohol. The factual findings made by the Law Division judge are amply supported by substantial credible evidence in the record, providing a reasonable basis for defendant's arrest for DWI.

Defendant argues that his BAC should not have been admitted because Neely failed to remove all electronic equipment from the testing room and because the municipal court judge should not have allowed Neely to testify that he changed the mouthpiece between tests.

The Law Division judge determined that the equipment in the testing room was either off or in hibernation mode. She determined further that the Alcotest equipment is well-shielded from the impact of any potential radio frequency interference. See State v. Carrero, 428 N.J. Super. 495, 510 (App. Div. 2012) (comprehensive discussion on the issue of Alcotest equipment and radio frequency interference). As a result, the judge denied defendant's request to exclude the results of his breath tests. We agree.

Finally, defendant argues that Neely's testimony, that he changed the mouthpiece, should not be admitted. We find this contention and defendant's remaining contention, that the State failed to establish his guilt beyond a reasonable doubt, to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

We add this brief comment. The Supreme Court has long held that a trial judge has the discretion to reopen a criminal case after one or both of the parties rest. State v. Wolf, 44 N.J. 176, 191 (1965); see also State v. Cooper, 10 N.J. 532, 564 (1952). "[W]hen the ends of justice will be served by a reopening, it ought to be done." Wolf, supra, 44 N.J. at 191. Here, the State had not rested, and we agree with the Law Division judge that the interests of justice allow the testimony in question.

A

ffirmed.

1 The prison sentence was stayed pending appeal. The stay is vacated.

2 The instrument employed by Neely was the Alcotest 7110 MKIII-C.