STATE OF NEW JERSEY v. JOSEPH CINQUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3459-08T43459-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH CINQUE,

Defendant-Appellant.

_______________________________

 

Argued: November 12, 2009 - Decided:

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 21-08-CT-24.

John J. Bruno, Jr. and James E. Trabilsy argued the cause for appellant (Bruno & Ferraro, attorneys; Mr. Bruno, of counsel and on the brief).

Anthony J. Parenti, Jr., Assistant Prosecutor, argued the cause for respondent (Wayne J. Forrest, Somerset County Prosecutor, attorney; Eric Mark, Assistant Prosecutor, on the brief).

PER CURIAM

This is an appeal from the Law Division's determination that defendant was guilty of operating a motor vehicle while intoxicated in violation of N.J.S.A. 39:4-50. On appeal, defendant contends that the record lacks sufficient credible evidence of intoxication to prove beyond a reasonable doubt that he operated his vehicle while intoxicated. In particular, defendant points to the inconsistent statements of one of the testifying police officers, Sergeant Gene McAllister, the effect of defendant's medical condition on the field sobriety tests, and errors in the administration of those tests. We conclude that there is sufficient evidence in the record to sustain the Law Division's conclusion that defendant was operating a vehicle under the influence of alcohol in violation of N.J.S.A. 39:4-50, and affirm its judgment.

On November 26, 2006, between midnight and 1:00 a.m., Sergeant McAllister of the Watchung Police Department observed defendant's car in "the side view mirror" approaching from behind on Route 22 at a speed in excess of the limit. He then observed defendant pass his vehicle and "drift" from the center lane partially into the left lane forcing the car in the left lane "to brake to avoid a collision." Sergeant McAllister observed defendant's car drift to both the left and right. Sergeant McAllister then activated his emergency lights. The patrol car's video recorder was also activated. Defendant continued to drive for approximately one mile after the emergency lights came on while drifting twice to the left and twice to the right and passing another car. Defendant did not actually change lanes during any of these "drifts".

After defendant pulled over, Sergeant McAllister asked defendant for his driver's license and vehicle documents. Defendant produced the driver's license and some unrequested and "unrelated documents" including "parking placards." McAllister also "detected an odor of an alcoholic beverage" emanating from defendant. Defendant told Sergeant McAllister that he had consumed two glasses of wine with dinner.

Believing that defendant was intoxicated, McAllister called Officer Edward ("Mike") Sugalski to the scene to administer the field sobriety tests. Officer Sugalski conducted the field sobriety tests because he is trained in administering them and is a certified Breathalyzer and Alcotest operator. He also smelled the odor of alcohol on defendant's breath. Sugalski first conducted the "one-legged-stand" test. Officer Sugalski testified that he concluded defendant was impaired based on his performance during the one-legged stand test. Defendant was unable to hold his leg six inches off the ground and maintain his balance, and defendant incorrectly counted from one to 30 by skipping number 16 and going directly from number 19 to number 30.

The second field sobriety test conducted was the "walk and turn" test. Officer Sugalski instructed defendant to walk nine steps forward, turn right and walk nine steps back. However, Officer Sugalski demonstrated by turning left instead of turning right. Defendant did not touch his heels to his toes, went ten steps in each direction instead of nine, walked ten steps forward instead of nine, and then asked for further instructions in an apparent bout of forgetfulness.

Officer Sugalski also conducted the finger dexterity test, during which defendant became confused after counting to four and simply stopped, and the alphabet test, during which defendant's speech was "garbled and unintelligible." Based on defendant's performance in the field sobriety tests, Officer Sugalski believed defendant to be "impaired."

Defendant largely attributes his performance on the field sobriety tests to his medical condition. Dr. Ronald Primas testified that he has been treating defendant for eleven years for hypertension, gout, and chronic lead poisoning. The symptoms of gout are severe pain, swelling of the joints, redness, and gait imbalance. Defendant suffers from gout in his foot, and his right and left ankles. Dr. Primas further testified that alcohol can cause a gout flare-up which would affect "his walking ability." Defendant also suffers from lead poisoning as a result of multiple lead pellets in his body. Dr. Primas explained that "because [of Cinque's elevated] lead level, he's lost some sensation in some of his peripheral nerves, specifically the bottom of his feet" when weight-bearing is involved.

Herbert Leckie, an expert called by defendant on the administration of field sobriety tests, testified that trained field sobriety test administrators ask about medical conditions that affect the ability to perform. He also noted the "one-leg stand" test was not administered correctly and that defendant wasn't directed to look at his feet during the "walk and turn" test. Leckie further stated that defendant's spinal fracture and gout "could effect a person's ability to perform these types of tests." He further discussed the reliability of the administered tests.

The municipal court found defendant guilty of DWI because of his slurred speech and odor of alcohol and because after the incident defendant did not report to the doctor any medical episode that could have affected the field sobriety test results. The Law Division also found defendant guilty on the trial de novo.

Defendant contends that the Law Division erred by finding Sergeant McAllister's testimony to be credible, and by discounting defendant's medical conditions in the performance of the field sobriety tests as well as the improper administration of the field sobriety tests.

"Our standard of review of a de novo verdict after a municipal court trial is to 'determine whether the findings could reasonably have been reached on sufficient credible evidence present in the record,' considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). When the municipal court and the Law Division "'have entered concurrent judgments on purely factual issues,' we will not disturb those findings 'absent a very obvious and exceptional showing of error.'" State v. Ebert, supra, 377 N.J. Super. at 8 (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). We are bound by the Law Division's findings of fact even though this court may have reached a different conclusion, unless we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." State v. Ebert, supra, 377 N.J. Super. at 8 (internal quotation and citation omitted).

Because prosecution for operation of a motor vehicle in violation of N.J.S.A. 34:4-50 is quasi-criminal in nature, the State has the burden of proving beyond a reasonable doubt that a defendant was driving while intoxicated. State v. Ebert, supra, 377 N.J. Super. at 10 (citing State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984)); State v. Dively, 92 N.J. 573, 585 (1983).

A violation can be proven "through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Howard, 383 N.J. Super. 538, 548 (App. Div.), certif. denied, 187 N.J. 80 (2006) (quoting State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004)). Sufficient credible evidence has been found where a police officer's testimony included reference to a defendant with "watery eyes," "slow and slurred" speech, a staggered walk, the wrong number of steps taken during the heel-to-toe test, difficulty balancing during the one-legged stand test, miscounting, and errors reciting the alphabet, as was reported in this case. See State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001). Because the refusal charge was dismissed, observation evidence must be sufficient enough to prove intoxication by itself.

As already noted, defendant asserts that Sergeant McAllister's testimony has to be discounted because of inconsistencies in his testimony from the first municipal court hearing as compared to his testimony at the second municipal court hearing. While McAllister testified that he viewed the video tape to refresh his recollection before the second trial, but not the first, the question of credibility was for the fact finder. These and other inconsistent statements do not warrant reversal by us.

Sergeant McAllister testified that he asked defendant for his driver's license and registration, and defendant produced a driver's license and parking placards. At that point, Sergeant McAllister "detected an odor of an alcoholic beverage when [he] spoke to [defendant]." In addition, he testified that defendant spoke to him in a "slurred" voice. Sergeant McAllister asked defendant if he had consumed any alcohol that evening, and defendant stated that he had consumed two glasses of wine with dinner. The Law Division noted that this information is also evidenced in the video tape. According to Judge Coleman in the Law Division, the tape shows "the defendant providing the driver's license and the parking placards, admissions by the defendant that he had been drinking that night, [and] the odor of alcohol, although he claims that this was at dinner time and the stop was after midnight, the odor of alcohol coming from the defendant." The municipal court and the Law Division made findings that Sergeant McAllister's testimony was credible.

Defendant contends that the Law Division should not have found probative value in defendant's performance of the field sobriety tests because defendant's medical condition and the officer's instructions impacted adversely on the reliability of the field sobriety tests. Defendant argues that "all of the characteristics demonstrated by Mr. Cinque were most likely due to the effects of the gout, his age, neuropathy and not intake of alcohol." However, the Law Division took into consideration defendant's medical condition and determined that they had not manifested themselves during the field sobriety tests. Judge Coleman expressly noted that "[i]mportant to me is the state of mental confusion which demonstrates impairment."

Finally, defendant contends that the field sobriety tests should not be relied upon because of Officer Sugalski's failure to properly instruct or administer the tests. According to defendant, "because these tests were not properly administered, . . . the results should not be relied upon for a determination of guilt." In particular, for the one-leg-stand, defendant points to Officer Sugalski's failure to tell defendant to look down at his foot and having defendant face traffic. For the walk and turn test, defendant contends that Officer Sugalski failed to inquire of defendant's medical ailments, to instruct defendant to look down at his feet and keep his arms to his side, and by instructing defendant to turn to his right while demonstrating it with a turn to the left. Defendant's expert witness, Herbert Leckie, testified that the tests were administered incorrectly and demonstrated incorrectly.

The Law Division determined that defendant's errors during the field sobriety tests were not minor mistakes, and found the defendant's expert witness not persuasive in discounting the entire value of the field sobriety tests. The Law Division specifically noted that it found probative value in the tests, particularly because of defendant's state of mental confusion. Moreover, any inadequacies in administration of the field sobriety tests would not have affected defendant's ability to count properly or perform other tests any more than defendant's physical disabilities could affect his verbal performance.

Finally, defendant argues before us that this is not a Locurto case because his expert testimony was "unrefuted" and, even accepting all the credibility determinations of the trial judge, or judges, the expert opinions remain uncontested. However, the credibility assessments included an evaluation of the defense experts as well as the officers who testified for the State, and the Law Division, which we review, did not completely accept the testimony of defendant's experts. The State's case was based on observations and field sobriety tests which the defense experts refuted and attributed to defendant's physical condition. However, according to Judge Coleman:

The defendant experts are not persuasive in discounting the entire value of the field sobriety test, although the Court took into consideration various medical problems. There was no testimony that those medical problems actually manifest themselves during the test itself. Because the doctor indicates that they don't, do not always manifest themselves.

I still find probative value as to the tests that were conducted in this case. Important to me is the state of mental confusion which demonstrates impairment. For example, even starting with license and registration, instead of license and registration it's license and a bunch of parking placards in conjunction with his driver's license which obviously isn't related at all to what was requested.

Best evidence of his driving under the influence is contained in the video tape, frankly. Shows the defendant vehicle weaving back and forth several lanes, shows the defendant taking approximately a mile to pull over, despite the emergency lights, shows the defendant providing the driver's license's and the parking placards, admissions by the defendant that he had been drinking that night, the odor of alcohol, although he claims that this was at dinner time and the stop was after midnight, the odor of alcohol coming from the defendant. Frankly, the video corroborates the testimony of the officers with regard to his ability to perform the field sobriety tests.

So, I do find that the State has satisfied the burden of proof beyond a reasonable doubt with regard to driving while intoxicated and failure to maintain lane.

Under Locurto, the reasons for credibility determinations need not be detailed. 157 N.J. at 500-01. However, here the Law Division detailed them. While the videotape need not necessarily be reviewed by us, given the issues raised and significance of the video in the Law Division's findings. We requested a copy from counsel and watched it. Although there may be some ambiguities in the tape, it sufficiently supports the Law Division's findings to affirm the judgment under our scope of review.

We affirm the judgment substantially for the reasons embodied in Judge Coleman's opinion of February 23, 2009, in which he made a de novo finding beyond a reasonable doubt that has ample support in the record.

 
Affirmed.

Defendant did not appeal to us from the municipal court conviction of failure to maintain his lane, N.J.S.A. 39:4-88(b). Nor did the State appeal from the municipal court's pretrial dismissal of the charge of refusal to submit to a Breathalyzer test, N.J.S.A. 39:4-50.2.

Defendant claims McAllister made statements at his second municipal court trial inconsistent with his testimony at the first. The first ended by a mistrial after the municipal court judge resigned from the bench before the trial was completed. There is no issue raised with respect to the mistrial or how the matter proceeded thereafter. The inconsistencies were developed as part of the attack on McAllister's credibility and the State's burden of proof.

The transcript of proceedings indicates that the video tape was played during the testimony.

In its opinion, the Law Division stated defendant "moved to number nineteen" from sixteen and "then jumped to number thirty." However, defendant included seventeen and eighteen before jumping from nineteen to thirty.

Defendant tells us his physical condition only affects him when standing and "weight bearing" and not when driving his vehicle.

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A-3459-08T4

December 10, 2009