STATE OF NEW JERSEY v. NICHOLAS LOSQUADRO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4824-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICHOLAS LOSQUADRO,

Defendant-Appellant.

______________________________________________________

October 1, 2010

Submitted September 7, 2010 - Decided

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Municipal Appeal No. 2008-4785.

Gerald E. Fusella, attorney for appellant.

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nicholas Losquadro was convicted in the Clifton municipal court of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and making an unsafe lane change, N.J.S.A. 39:4-88(b). It was defendant's fifth conviction for DWI, and the judge sentenced him to 180 days in jail, suspended his license for ten years, imposed $1358 in fines and costs, and ordered the installation of an ignition inter-lock device for three years after restoration of defendant's license. On de novo appeal to the Law Division, defendant was again convicted of both offenses. The judge merged the unsafe lane change conviction into the DWI conviction and imposed the same sentence, although the judge permitted defendant to serve 90 days of the custodial sentence in an Intoxicated Driver Resource Center (IDRC) in-patient program and the balance in the county jail.

Before us, in a single point, defendant argues that the guilty verdict was "against the weight of the evidence." We have considered this argument in light of the record and applicable legal standards. We affirm.

We begin by noting that defendant misstates the standard of review we apply to a conviction resulting from a bench trial. Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2010). We do not "'weigh the evidence, assess the credibility of [the] witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Additionally,

Appellate courts should defer to trial courts' 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. Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues.

[Locurto, supra, 157 N.J. at 474 (citations omitted) (emphasis added).]

The Law Division judge, Donald J. Volkert, Jr., A.J.S.C., filed a comprehensive written opinion stating his findings of fact and conclusions of law based upon his de novo review of the record, which he quoted at length. Judge Volkert concluded that Clifton police officer Favio Toyos was dispatched to the westbound merge of Route 3 and Route 46 at approximately 4:25 p.m. on October 2, 2007. He "observed defendant's vehicle 'swerving in and out of traffic' . . . ." Defendant's car "'cut a pickup truck off'" causing the truck's driver to "'panic brake.'" Although Toyos activated his lights and siren signaling defendant to stop, defendant "'continued to accelerate'" and decrease speed as he "'swerved in and out of traffic.'" Defendant did not stop until Toyos had pursued him through Little Falls and into Totowa.

As he approached defendant's vehicle, Toyos "detected the strong smell of an alcoholic beverage." Defendant had difficulty shutting off his ignition, his speech was slurred, and his eyes were "watery [and] bloodshot." Officer Skidmore, who also responded, noted the strong smell of alcohol on defendant's breath.

Toyos administered field sobriety tests to defendant who was unable to recite the alphabet in full, claiming that he "did not know the rest" of the letters after M. Defendant mumbled during a second attempt and was only able to recite the letters from A to D. Defendant abjectly failed the balance test and the "heel-to-toe" test and was placed under arrest. Toyos opined that "defendant 'was definitely impaired' . . . [and] that [his] impairment affected his ability to safely operate a motor vehicle."

Skidmore's testimony corroborated much of Toyos's. At headquarters, Skidmore "observed defendant for approximately 20 minutes before he administered an Alcotest."1 Skidmore "said it was obvious defendant was intoxicated."

Addressing defendant's argument "that the [S]tate did not meet its burden of proving that defendant operated his vehicle while being under the influence," Judge Volkert noted that evidence "regarding amounts, locations, time and circumstances surrounding the ingestion of alcohol . . . would have been helpful . . . in determining whether defendant was driving under the influence . . ., [but] its absence [wa]s not dispositive." The officers' opinions regarding defendant's state of intoxication were sufficient.

Judge Volkert next addressed defendant's claim that the field sobriety test results were "inconclusive evidence of operation under the influence." Citing State v. Ravotto, 169 N.J. 227, 242 (2001), for the proposition that "defendant's blood alcohol level is not required [to be proven] for an 'under the influence' conviction," the judge concluded that the tests Toyos employed were "ones that police officers commonly use to determine sobriety without a machine test." Judge Volkert found that the tests "were merely further evidence that . . . defendant was under the influence."

The judge also addressed defendant's attack on the credibility of the officers, and the fact that defendant exhibited none of the behaviors frequently associated with intoxication, such as the use of "profanity . . . or fighting." Judge Volkert, quoting Johnson, supra, 42, N.J. at 166, noted, "'[t]he fact that some of the signs of alcoholic influence . . . did not manifest themselves as obviously as in some cases does not require a contrary conclusion, either legally or factually . . . .'" Lastly, the judge observed that the absence of a videotape of the motor vehicle stop and the field tests "d[id] not require a finding of either guilt or innocence."

Before us, defendant has reiterated the very same arguments made below to Judge Volkert.2 We affirm defendant's conviction substantially for the reasons expressed by Judge Volkert in his written decision.

1 The State never introduced the results of the Alcotest after concluding that appropriate testing protocols were not followed.

2 The only new argument raised on appeal is that Judge Volkert, in discussing the appropriate sentence imposed on defendant in the municipal court, noted this was his fifth DWI conviction, and "[t]he appeal of this conviction and not of the other four evidence[d] a desire not to reform actions, but merely to avoid jail time and an extended surrender of driving privileges." Defendant argues there was nothing in the record regarding whether he appealed his prior convictions and that his prior record was "an improper basis for finding [him] guilty on the de novo review." A thorough review of the transcript reveals that Judge Volkert did not use defendant's prior DWI convictions as a basis to determine his guilt in this case. The argument lacks sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).