STATE OF NEW JERSEY v. MARYLOU PANZA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4392-08T44392-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARYLOU PANZA,

Defendant-Appellant.

_______________________________

 

Argued March 9, 2010 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Municipal Appeal

No. 08-052.

Jane M. Personette argued the cause for appellant

(Law Offices of Brian J. Neary, attorneys; Mr. Neary and Ms. Personette, of counsel; Ms. Personette, on the brief).

Joseph J. D'Onofrio, Jr., Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Mr. D'Onofrio, on the brief).

PER CURIAM

Defendant Marylou Panza appeals from a Law Division judgment, following a trial de novo, affirming her municipal court convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to an Alcotest, N.J.S.A. 39:4-50.2. We affirm.

According to the State's proofs adduced at the suppression hearing and later incorporated into the trial, during the evening of July 21, 2007, Detective Sergeant Joseph Orlando, an eleven-year veteran of the Florham Park Borough Police Department, was working crowd control and pedestrian crosswalks at the Borough's "Movie Night," an event where people gather to watch a movie outdoors on a large screen. At about 8:00 p.m., Detective Orlando observed defendant crossing from Briarwood Road to Ridgedale Avenue, walking "slightly off balance," unsteadily, "shuffling and swaying."

Orlando next encountered defendant around 9:45 p.m., when he responded to a report of a "disturbance" at the cotton candy vendor near the gazebo on Borough Drive. Although Orlando did not observe any disturbance, a number of people standing in line waiting to purchase cotton candy and popcorn pointed to defendant. He then conversed with defendant, whom he recognized from earlier in the evening, and detected an odor of alcohol emanating from her. Defendant's eyes also appeared bloodshot and glassy.

About forty-five minutes later, at the end of the movie, Orlando saw defendant a third time, this time walking down from the Borough yard towards Briarwood Road with a small child. Based on his earlier observations, Orlando suspected defendant might have been under the influence, and, out of concern that defendant would drive with the child, called a patrol unit to the location. Orlando himself could not stop and question defendant because there were hundreds of people in the crosswalks and traffic was coming out of Borough Drive.

Sergeant Matthew Gatzke, a fourteen-year veteran of the police department, responded to the scene. He observed defendant, who matched the description given in the radio transmission, which also advised that the female, accompanied by a small child, may be intoxicated. Defendant then entered her Volvo, turned on her directional indicator, and proceeded on Smithfield Avenue, towards Briarwood Road, with Gatzke following close behind. When defendant began to turn, Gatzke activated his overhead lights and stopped defendant's vehicle on Briarwood Road, before Ridgedale Avenue. Defendant's child was in the rear passenger side of the vehicle.

When Gatzke asked for her credentials, defendant provided her registration, but had difficulty finding her license, which she eventually produced. Gatzke observed that defendant's eyes were glassy and bloodshot. She denied having consumed any alcohol. While she remained seated, Gatzke asked defendant to perform the finger dexterity test and count "5, 4, 3, 2, 1" and "1, 2, 3, 4, 5," twice, which she passed. Detective Orlando then returned to the scene to confirm defendant was the suspect he had called into dispatch.

After Orlando left the area, Gatzke asked defendant to exit the vehicle and perform field sobriety tests on the side of the road, between Gatzke's and defendant's vehicles. The area was clear, flat, and paved, and in Gatzke's opinion, safe to conduct testing. He allowed defendant to take her high heels off during the tests. Another police officer was posted near the vehicle to watch defendant's child, who was obviously upset and concerned for her mother.

Gatzke administered the "one-legged stand" and "walk-and-turn" tests, which were videotaped and for which defendant needed several explanations before she attempted to comply with the instructions. According to Gatzke, defendant failed both of these tests. Throughout the field sobriety testing, Gatzke detected the odor of alcohol emanating from defendant and found her interrupting him and rambling about other subjects that did not pertain to the questions he was asking. While obviously concerned about her daughter, defendant was reassured by Gatzke that another officer was watching the child.

Based on all his observations and the information imparted by Detective Orlando, Sergeant Gatzke arrested defendant and transported her to police headquarters, where she was re-read her Miranda rights and read the standard DMV statement, advising why she was arrested and the need to submit breath samples for testing of alcohol content in the blood. Gatzke also explained to defendant that he was required to read all eleven paragraphs of the "standard statement." When Gatzke read Paragraph Eleven and asked, "Now, will you submit samples of your breath?" Defendant replied, "No, I do not want to do that." Gatzke then read the additional statement and asked, "Once again, I ask you will you submit to giving samples of [your] breath?" Defendant responded, "No, not right now." Defendant also indicated that she understood the form.

Gatzke waited twenty minutes for the Alcotest machine. After completing documentation and entering information into the machine, Gatzke gave defendant a third opportunity to blow into the machine, which defendant once again declined. Gatzke then pressed the refusal button on the Alcotest machine. Defendant agreed to answer the Drinking and Driving Questionnaire, wherein she indicated she had consumed "wine with dinner."

Defendant offered a different version at trial. Earlier that evening, she had gone to dinner with her husband and daughter, where she consumed a glass of wine. She later drove to "Movie Night" with her daughter, after returning her husband home. Upon arrival, defendant dropped off her daughter with a friend, Deirdre Murphy, and her friend's daughter, while she looked for parking up the street. Defendant met up with the trio and all four sat on lounge chairs and a blanket to enjoy the movie.

Defendant left the area twice, once to get the children popcorn at the concession, and forty-minutes into the movie to get cotton candy. While in line for cotton candy, she said she joked with the vendor, asking him to hurry up and "use both hands." When Detective Orlando approached her waiting in line, defendant conversed with him about his uniform, telling him the Chatham Police Department resuscitated her husband and saved his life.

The movie ended at 10:15 p.m., at which time defendant and her daughter returned to her vehicle, crossing the street at Ridgedale Avenue and Briarwood Road and saying "good night" to Detective Orlando as she passed him. When she arrived at her vehicle, defendant buckled her daughter in a booster seat and then pulled out of her spot. At this time, she noticed a patrol car behind her, but thought the officer wanted to pull around her. Instead, Gatzke stopped defendant's vehicle and asked for her credentials. At the time, defendant's daughter was upset and frightened and defendant herself was scared. As defendant was ordered out of the car, her daughter started crying. Throughout the entire sobriety testing, defendant's main concern was for her daughter, who continued crying and screaming. Defendant also admitted interrupting Gatzke during the field testing.

At police headquarters, defendant was not allowed to see her daughter. Although she was read the "standard statement" on the Alcotest, defendant was trying to "rush the whole thing along" because of concern for her daughter. Defendant acknowledged being read Paragraph Eleven and refusing to take the Alcotest twice. She explained not wanting to take the Alcotest because Gatzke told her once they finished the whole process, she would be able to make a phone call to get someone to stay with her daughter. Although defendant admitted that Gatzke displayed a mouthpiece and hose, she denied being given a third opportunity to give a breath sample. Deirdre Murphy, who was sitting next to defendant during "Movie Night," did not detect an odor of alcohol emanating from defendant that evening.

At the conclusion of the evidence, the municipal court judge found defendant guilty of both the DWI and refusal charges and imposed concurrent three-month and seven-month driver's license suspensions respectively, along with appropriate fees, surcharges, penalties, and assessments. In an earlier ruling mid-way through Sergeant Gatzke's testimony, the municipal court judge denied defendant's pre-trial motions to dismiss on the basis of claimed "entrapment," and to suppress, on the basis of an unconstitutional stop and arrest. As to the latter, the judge found reasonable articulable suspicion for the motor vehicle stop and probable cause for the arrest. On its de novo review, the Law Division found defendant guilty of DWI and refusal and re-imposed the municipal court's sentence. The Law Division judge concluded:

I do not find anything inappropriate in that conduct. It is now -- and the Court finds based upon the observations there was -- there was probable cause to stop the vehicle. Again, this was the observations that had been made by Officer Orlando. Two different occasions I believe he encountered this defendant at the movie grounds if you will, and then now he sees her operating her vehicle. So the stop -- I find there was probable cause for the stop.

At that point, the Court finds there were a number of field sobriety tests conducted. It's suggested by the defense that the defendant was distracted with concerns for her daughter and that's perhaps why she didn't cooperate, perhaps she didn't perform these various tests the way that she perhaps could have.

I don't find any merit in that. I don't dispute that she perhaps had concerns for the daughter, but at the same time, these were standard field sobriety tests that she was directed to do. She had some difficulties locating her license, and she had difficulties I find in several of the field sobriety tests, the one-legged test particularly she did not perform satisfactorily. The observations the officers had made of her, the odor or alcohol was a justification for bringing her to headquarters for further tests, namely for a breath test.

At headquarters, again, the officers fully complied I find with the requirements on reading to a defendant the request to submit to a breath test. There's nothing in the record to indicate this defendant didn't understand what was being said, but it is very clear in the record that the defendant knowingly refused to submit to a breath test. The officers, again, I find did everything that is required of them in reading the standard statements, and the record is very clear. And I do find beyond a reasonable doubt that the defendant knowingly refused to submit to a breath test.

With regards to operating under the influence, again, the officers testified based upon their experience that the observations that were made of this defendant before she got into her vehicle but then subsequently after she was stopped getting out of the vehicle, the way that she failed the various field sobriety tests, the odor of alcohol, it was the opinion of those officers that she had operated while under the influence, again, based upon the experience that each of these officers had.

I find today beyond a reasonable doubt that the defendant was guilty and is guilty today of both operating while under the influence as well as a refusal to submit to a breath test.

On appeal, defendant raises the following issues for our consideration:

I. THE COURT BELOW ERRED IN FAILING TO SUPPRESS EVIDENCE AS THE FRUITS OF AN UNLAWFUL MOTOR VEHICLE STOP.

a. The police lacked a reasonable and articulable suspicion to stop Ms. Panza.

b. The police lacked probable cause to arrest Ms. Panza.

i. Officers Orlando and Gatzke observed almost no evidence that would have constituted probable cause to believe that Ms. Panza was intoxicated.

ii. Taken together, the few and limited observations that Officers Orlando and Gatzke did make consistent with alcohol consumption were insufficient grounds to establish probable cause that Mr. Panza was intoxicated.

II. THE COURT'S DETERMINATION THAT MS. PANZA WAS GUILTY OF DRIVING WHILE INTOXICATED WAS AGAINST THE WEIGHT OF THE EVIDENCE.

III. THE COURTS BELOW ERRED IN CONCLUDING THAT DEFENDANT HAD NOT BEEN "OBJECTIVELY ENTRAPPED" IN VIOLATION OF HER CONSTITUTIONALLY-PROTECTED DUE PROCESS RIGHTS.

IV. THE CONVICTION RENDERED IN THE COURT BELOW MUST BE REVERSED BECAUSE THE COURT IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF FROM THE STATE TO DEFENDANT.

We find none these contentions persuasive.

I.

Defendant argues that the police lacked reasonable articulable suspicion to stop her vehicle and lacked probable cause to arrest her. We disagree.

The police may stop a motor vehicle without violating the Fourth Amendment if they have an "articulable and reasonable suspicion" of a violation of law by the driver or a passenger. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Locurto, 157 N.J. 463, 470 (1999) (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). A reasonable, articulable suspicion is less than probable cause. State v. Davis, 104 N.J. 490, 501 (1986); State v. Murphy, 238 N.J. Super. 546, 554 (App. Div. 1990). "Constitutional precedent requires only reasonableness on the part of the police, not legal perfection." State v. Williamson, 138 N.J. 302, 304 (1994). The determination is made based on an objective evaluation of the circumstances in light of the officer's experience and training, as well as the facts available at the time of the encounter. State v. Pineiro, 181 N.J. 13, 25-27 (2004). Moreover, the State is not required to prove an actual violation of law to justify a motor vehicle stop. Williamson, supra, 138 N.J. at 304. It is sufficient for the State to prove reasonable suspicion that a violation has occurred. Ibid. Even if the driver is subsequently found not guilty of the traffic violation, so long as the officer had an articulable and reasonable suspicion that the offense was committed, the initial stop was proper. Murphy, supra, 238 N.J. Super. at 553-54.

In this matter, as the lower courts have found, there was ample credible evidence of reasonable suspicion that defendant was violating the DWI law. In this regard, when reviewing a disposition on a motion to suppress, we must uphold the factual findings underlying the trial court's decision so long as those findings are "'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)); see Locurto, supra, 157 N.J. at 474; see also State v. Slockbower, 79 N.J. 1, 13 (1979). A reviewing court "may only consider whether the motion to suppress was properly decided based on the evidence presented at that time." State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971) (quoted in State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999)).

Here, Detective Orlando noticed defendant walking unsteadily and off-balance, and then later, while engaged in conversation with her, observed her eyes bloodshot and glassy and detected an odor of alcohol emanating from her. Still later, when seeing her walk with a child toward an area where cars were parked, Detective Orlando had a reasonable suspicion that defendant would get into her vehicle and drive while under the influence. In this regard, it matters not that Sergeant Gatzke, at the time he conducted the motor vehicle stop, failed to witness first-hand what Detective Orlando transmitted over the radio and subsequently relayed personally to Gatzke. Cf. State v. Amelio, 197 N.J. 207 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). Obviously, "'effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.'" State v. Crawley, 187 N.J. 440, 457 (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976)), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). We conclude that, under the circumstances, an objectively reasonable basis existed upon which to justify the stop of defendant's motor vehicle.

Moreover, as the situation developed thereafter, the officer's reasonable suspicion escalated to probable cause to effectuate defendant's DWI arrest. Probable cause "is more than mere naked suspicion[,] but less than legal evidence necessary to convict." State v. Waltz, 61 N.J. 83, 87 (1972) (citing State v. Mark, 46 N.J. 262, 271 (1966)). It "is not a technical concept, but one drawn from the 'practical considerations of everyday life' as tested by reasonable persons." State v. Esteves, 93 N.J. 498, 505 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 2d 1879, 1890 (1949)). Further, "the common and specialized experience and work-a-day knowledge of [police officers] must be taken into account" when assessing probable cause. State v. Contursi, 44 N.J. 422, 431 (1965).

Here, in addition to Detective Orlando's observations earlier in the evening, Sergeant Gatzke made independent observations of the defendant, which confirmed what Orlando had previously reported. As did Orlando, Gatzke noted that defendant's eyes were glassy and bloodshot. During field sobriety testing, Gatzke detected an odor of alcohol. Defendant also rambled, asked non-relevant questions, and interrupted Gatzke. More significantly, defendant failed the "one-legged stand" and "walk-and-turn" tests, requiring several explanations before even attempting to comply with the officer's instructions. We conclude that the officers' observations of defendant, coupled with her poor performance on the field sobriety tests, established the requisite probable cause to justify her DWI arrest. See, e.g., State v. Macuk, 57 N.J. 1, 5 (1970); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001); State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996).

II.

Defendant next challenges her convictions as against the weight of the evidence. We disagree.

The function of the Law Division on an appeal from the municipal court, R. 3:23-8(a), is not to search the record for error, not to decide if there was sufficient credible evidence to support the municipal court conviction, but "to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge" to evaluate witness credibility. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)). In other words, the judge in a trial de novo must make independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (quoting State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).

In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. When we are satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Ibid.; see also Avena, supra, 281 N.J. Super. at 333.

Just as the Law Division does when conducting a de novo review, we "defer to [the] trial court['s] credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474. Indeed,

the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[Ibid.]

Governed by these standards, we discern no reason to interfere with the judgment below.

N.J.S.A. 39:4-50(a) provides in pertinent part that, "a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug" shall be subject to certain escalating penalties. To prove whether a defendant was "under the influence," the State must show "beyond a reasonable doubt that, at the time of his arrest, defendant suffered from 'a substantial deterioration or diminution of the mental faculties or physical capabilities[.]'"

State v. Bealor, 187 N.J. 574, 590 (2006) (internal citations omitted). Thus, a motorist is under the influence when his or her drinking has caused a substantial diminution of faculties and capabilities. State v. Tamburro, 68 N.J. 414, 421 (1975). It occurs when the motorist's drinking has altered his or her coordination and mental faculties so as to make it unsafe to drive. State v. DiCarlo, 67 N.J. 321, 328 (1975). A conviction for drunk driving may be based upon "physical evidence of drunkenness, such as symptoms observed by the arresting police officers or failure of defendant to perform adequately on balance and coordination tests. . . ." State v. Ghegan, 213 N.J. Super. 383, 385 (App. Div. 1986).

In her challenge to the sufficiency of evidence, defendant argues that the courts below overlooked "relevant factors" such as the impact of her concern over her daughter on her physical appearance and performance on the field sobriety tests. Contrary to defendant's contention on appeal, the municipal court judge, who viewed the videotape of the police encounter, did consider defendant's testimony in this regard and rejected it as not credible, a finding to which we owe deference. In our view, the aggregate of the observations of both officers, whom the municipal court judge found to be credible witnesses, defendant's physical appearance, and her performance on the field sobriety testing, was sufficient to sustain the DWI conviction. See Johnson, supra, 42 N.J. at 166; see also State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002). We perceive no "manifest injustice" in the verdict rendered. State v. Sims, 65 N.J. 359, 373-74 (1974).

The proof was also sufficient to sustain defendant's refusal conviction under the "Implied Consent Law," N.J.S.A. 39:4-50.2. This provision

provides that any person who operates a motor vehicle on a public or quasi-public road in New Jersey "'shall be deemed to have given [her] consent to the taking of samples of [her] breath for the purpose of making chemical tests to determine the content of alcohol in [her] blood."

[State v. Widmaier, 157 N.J. 475, 487 (1999) (quoting N.J.S.A. 39:4-50.2).]

"'[A]nything substantially short of an unqualified, unequivocal, assent to an officer's request that the arrested motorist take the [breathalyzer] test constitutes a refusal to do so.'" State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div.) (quoting State v. Corrado, 184 N.J. Super. 561, 569 (App. Div. 1982)), certif. denied, 126 N.J. 323 (1991); see also Widmaier, supra, 157 N.J. at 488.

Here, defendant, on three occasions, refused to submit a sample of her breath after being properly instructed and advised of the consequences of such a refusal. Once again, the lower courts considered her explanation about her concern for her daughter and rejected it as not credible and, in any event, insufficient to excuse her affirmative obligation to submit to the Alcotest. See Widmaier, supra, 157 N.J. at 487. We concur in these determinations.

We also reject defendant's contention on appeal that the municipal court judge shifted the burden of proof to defendant when he commented that the Alcotest machine is not a test to prove a defendant is drunk, but rather an opportunity for a defendant to show she is sober. We do not attribute to this remark the meaning ascribed to it by defendant and, in any event, we find that the State had met its burden of proving defendant guilty of both the DWI and Refusal charges beyond a reasonable doubt.

III.

We find defendant's remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-4392-08T4

April 12, 2010