STATE OF NEW JERSEY v. ROSE WOLF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5086-05T25086-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROSE WOLF,

Defendant-Appellant.

_________________________________

 

Argued June 13, 2007 - Decided

Before Judges Wefing and Weissbard.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, No. 05-119.

Robert M. Wolf argued the cause for

appellant (Budd Larner, attorneys; Mr. Wolf,

on the brief).

Annmarie Cozzi, Assistant Bergen County

Prosecutor, argued the cause for respondent

(John L. Molinelli, Prosecutor, attorney;

Ms. Cozzi and Nicole Eiszner, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a judgment of guilty of driving while intoxicated, N.J.S.A. 39:4-50; refusing to take a breathalyzer test, N.J.S.A. 39:4-50.2; and leaving the scene of an accident, N.J.S.A. 39:4-129(b), entered following a trial de novo in the Law Division. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant's convictions rest upon incidents that occurred in the early morning hours of August 8, 2004, in Midland Park. Patrolman Gibbons and Sergeant Veenstra of the Midland Park Police Department were having coffee at approximately 2:00 a.m. at a 7-Eleven convenience store when they saw defendant, driving a black Jeep Liberty, pull into the parking lot. Both officers recognized defendant. They saw her get out of her car and apparently start to walk toward a tavern next-door. After taking a few steps, she returned to her car and drove out of the parking lot. Neither officer observed anything particularly out of the ordinary about her behavior but did note that her car did not have its headlights on as she drove out of the lot and that she drove over a curb as she exited. The officers had finished their coffee and determined to make a motor vehicle stop. They were driving separate vehicles and drove in different directions. Sergeant Veenstra saw defendant's car parked at her residence and radioed Officer Gibbons. They took no further action at that time.

Shortly thereafter, however, they were dispatched to the scene of a possible hit-and-run accident. A resident awoke to the sound of a car crash, looked out the window and saw a damaged red Camaro and called the police. When the officers went to the scene, they saw debris which they recognized as coming from a Jeep Liberty. They decided to drive to defendant's home and inspect the car that Sergeant Veenstra had seen parked in the driveway. They saw that the car was missing a piece of trim, had damage to the front passenger side and also had red paint on it. They located defendant in the rear yard and based upon their observations, conducted field sobriety tests, which she failed. She was then taken into custody.

On appeal, defendant raises the following arguments for our consideration.

POINT I

THE LAW DIVISION ERRED IN FINDING DEFENDANT GUILTY OF DRIVING WHILE INTOXICATED BECAUSE THE STATE OFFERED NO EVIDENCE THAT SHE OPERATED A MOTOR VEHICLE WHILE INTOXICATED.

POINT II

THE LAW DIVISION SHOULD NOT HAVE CONVICTED THE DEFENDANT OF REFUSAL TO SUBMIT TO A BREATHALYZER TEST WHERE THE ARRESTING OFFICER LACKED PROBABLE CAUSE TO CHARGE HER WITH DRIVING WHILE INTOXICATED.

POINT III

THE LAW DIVISION ERRED IN FINDING DEFENDANT GUILTY OF LEAVING THE SCENE OF AN ACCIDENT WHERE THE STATE OFFERED NO EVIDENCE THAT SHE HAD OPERATED THE FAMILY VEHICLE INVOLVED IN THE ACCIDENT.

POINT IV

THE LAW DIVISION ERRED IN FINDING THE OFFICERS' MATERIALLY INCONSISTENT TRIAL TESTIMONY CREDIBLE AND RELIABLE.

POINT V

THE LAW DIVISION ERRED IN DENYING THE DEFENDANT'S BRADY MOTION ON THE BASIS OF THE STATE'S SPOLIATION AND NON-PRODUCTION OF POTENTIALLY EXCULPATORY AUDIOTAPES.

POINT VI

THE LAW DIVISION ERRED IN OVERRULING DEFENDANT'S OBJECTION TO THE INTRODUCTION OF AN ALLEGED OUT-OF-COURT HEARSAY STATEMENT AND THEN RELYING ON THAT HEARSAY IN SUPPORT OF ITS DECISION.

POINT VII

THE LAW DIVISION IMPROPERLY SHIFTED THE BURDEN TO DEFENDANT ON THE LEAVING THE SCENE CHARGE.

The majority of defendant's arguments revolve around her contention that the testimony of Officer Gibbons and Sergeant Veenstra should have been rejected. Defendant has set forth in her brief various instances in which the testimony of the two officers did not coincide. In our judgment, those arguments are more properly the subject of argument to the trial court, not to this court.

We, as an intermediate appellate court, are bound by the rulings of our Supreme Court. The Court has clearly circumscribed our review of the credibility determinations made in trial de novo following municipal court proceedings. State v. Locurto, 157 N.J. 463, 471 (1999) (noting "[I]t was improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance."). The Court also stated in Locurto that the rule calling for an appellate court to defer to a lower court's credibility determinations "is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues." Id. at 474. We thus decline to engage in an exercise of parsing the transcripts of the testimony of these officers in the manner that defendant suggests.

Defendant also stresses that there was no direct proof that she was the operator of the vehicle that struck the red Camaro, and no direct proof that she was intoxicated at the time she was seen driving her vehicle. Direct evidence, however, was not required. The State's case rested, in large measure, on circumstantial evidence. That, however, does not detract from the strength of its case. "The approach is the same though the testimony is circumstantial rather than direct; indeed in many situations circumstantial evidence may be 'more forceful and more persuasive than direct evidence.'" State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969) (quoting State v. Corby, 28 N.J. 106, 119 (1958)).

Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a [factfinder] is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the [factfinder] must use its experience with people and events in weighing the probabilities. If the [factfinder] is convinced beyond a reasonable doubt, we can require no more.

[State v. Fiorello, 36 N.J. 80, 88 n.1 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962) (quoting Holland v. U.S., 348 U.S. 121, 140, 75 S. Ct. 127, 137, 99 L. Ed. 150, 166-67 (1954)).]

Here, the factfinder could draw reasonable inferences from the evidence presented by the State and conclude that defendant was guilty of the charged offenses.

We also reject defendant's argument that the trial court erred in denying her motion based upon Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The three elements that must be established to support such a motion are the bad faith or connivance of the prosecution, the materiality of the evidence, and the existence of prejudice. George v. City of Newark, 384 N.J. Super. 232, 243 (2006); State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985). There was no evidence of bad faith or connivance on the part of the prosecution, nor that the audio tapes were material to the defense or that appellant was prejudiced by their absence. Defendant failed to establish those threshold elements, and her motion was correctly denied.

We do not deem it necessary in this opinion to delve into the intricacies of the exceptions to the hearsay rule and whether certain evidence was properly received at defendant's trial. The record, in our judgment, supports the determination of defendant's guilt even if the challenged statement had not been received.

Defendant's remaining arguments do not require discussion in a written opinion because it would have no precedential value. R. 2:11-3(e)(2).

Affirmed.

 

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A-5086-05T2

July 10, 2007