STATE OF NEW JERSEY v. ELIZABETH WALTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1243-08T41243-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELIZABETH WALTON,

Defendant-Appellant.

_____________________________

 

Submitted November 2, 2009 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 48-08.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Michael B. Mankowski, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Elizabeth L. Walton appeals from a November 3, 2008 conviction for driving while intoxicated, N.J.S.A. 39:4-50, entered by the Law Division on appeal from her conviction in municipal court. Her driving privileges were suspended for two years, and she was sentenced to pay fines and costs, serve forty-eight hours in the Intoxicated Driver Resource Center, and perform community service. We affirm.

I

These are the most pertinent facts. On March 21, 2007, Sergeant Martin Peary of the Northfield Police Department stopped defendant's car after he observed that the vehicle, which was traveling in excess of the posted thirty mile per hour speed limit, failed to make a complete stop at a stop light and made a right turn without signaling. He also saw the vehicle briefly cross into the wrong lane of travel on Route 9. When pulled over, the driver brought the car to a stop with the front wheel up on the curb.

On approaching defendant, the driver, Peary noticed a strong odor of alcohol. He required defendant to exit the car and, after she denied having any injuries that would preclude her from taking balance tests, he asked her to perform various field sobriety tests, which she failed. He also testified that her speech was slurred and rambling, her face was flushed, and her eyes were watery and bloodshot. He observed that defendant was swaying and staggering slightly. She was arrested and taken to the police station.

In response to police questioning, defendant indicated that she was not sick or injured, not taking medication, and not under a doctor's care. She admitted that she had been drinking vodka in "many bars" that day, between the hours of 11:00 a.m. and 10:00 p.m. and had not eaten.

In the municipal court hearing, defendant's mother testified that defendant, who was living with her at the time of the arrest, had various leg and back problems which affected her balance. She further testified that in 2007, her daughter was experiencing headaches, dizziness, tiredness and confusion. The defense also presented expert testimony from Gilbert Snowden, who opined that some of the field sobriety tests could be unreliable and that Peary had not administered some of the tests properly.

On May 5, 2008, the municipal judge rendered an oral opinion, finding defendant guilty of violating N.J.S.A. 39:4-50. In reaching his decision, the judge credited the testimony of defendant's mother and credited the testimony of Snowden concerning the field sobriety tests. However, the judge concluded that even disregarding the test results, there was sufficient additional evidence that defendant was intoxicated.

In particular, the judge found Sergeant Peary to be an entirely credible witness. He accepted Sergeant Peary's testimony concerning defendant's erratic driving. He also credited Peary's observations that "she had alcohol on her breath, that she was rambling, that her speech was slurred, that her eyes were bloodshot and watery, that her face was flushed, and that the movement of her hands were slow." The judge further considered defendant's admission to Peary that she had been drinking vodka from eleven in the morning until ten or eleven o'clock at night, in "many bars," without eating all day. The judge also considered Peary's opinion that defendant appeared to be too intoxicated to drive safely.

After reading the municipal transcripts and, according to his opinion, giving "due, but not necessarily controlling, weight," to the credibility determinations of the municipal judge, Judge Coogan made his own independent findings of fact and conclusions of law. See State v. Locurto, 157 N.J. 463 (1999); State v. Johnson, 42 N.J. 146 (1964). The judge credited Peary's testimony concerning his observations of the defendant during the roadside stop, and defendant's admissions at the police station that she had been drinking.

In his opinion, the judge also specifically considered the testimony of defendant's mother and the expert's testimony. However, the judge concluded that there was sufficient evidence of defendant's intoxication based on Peary's credible testimony about her erratic driving, her physical manifestations of intoxication, and her admission that she had been drinking vodka all day without eating:

She was driving the car in a careless manner, including speeding, failing to stop and making a right-hand turn on red, briefly crossing the center line, making a wide turn and parking her vehicle with the front wheel on the curb.

. . . She was impaired, as testified to by Sergeant Peary, because he detected an odor of alcohol coming from her when he first encountered her and continued to smell it all the way during the ride back to the police station. . . .

And he testified that her appearance and her demeanor was consistent with an intoxicated individual. Her eyes were watery and bloodshot and her face[] was flushed, her hands were slow and she was rambling and providing information that he didn't even ask her about. Most importantly, the defendant admitted that she had been drinking vodka at the rate of one drink a half-hour from 11 a.m. until the evening with no food in between.

The totality of these circumstances establishes in my mind the defendant's guilt beyond a reasonable doubt.

II

On this appeal, defendant contends that the Law Division judge did not consider the testimony of defendant's mother in reaching his decision. She also argues that the verdict was against the weight of the evidence. Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

On this appeal, we must defer to the Law Division judge's determination so long as it is supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). Having reviewed the record ourselves, we find ample credible evidence to support Judge Coogan's decision. We affirm substantially for the reasons stated in his thorough opinion.

Affirmed.

 

Because the Law Division did not consider the results of an Alcotest, which was not properly performed, those test results warrant no further discussion here.

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A-1243-08T4

December 1, 2009