STATE OF NEW JERSEY v. BRYAN HAKIM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5078-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRYAN HAKIM,

Defendant-Appellant.

_____________________________

November 16, 2010

Argued September 29, 2010 - Decided

Before Judges R. B. Coleman and Lihotz.

On appeal from the Superior Court of New Jersey,Law Division,Bergen County, Municipal Appeal No. 001-02-09.

Jane M. Personette argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, of counsel and on the brief; Ms. Personette, on the brief).

Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, BergenCounty Prosecutor, attorney; Ms. Cozzi, on the brief).

PER CURIAM

Defendant Bryan Hakim was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50, failure to report an accident, N.J.S.A. 39:4-130, and leaving the scene of an accident N.J.S.A. 39:4-129. Prior to trial in the Cresskill Municipal Court, defendant moved to suppress the breathalyzer readings, the use of horizontal gaze nystagmus (HGN) test, his statements to police at the scene and one piece of physical evidence. After a hearing, the municipal court did not consider the breathalyzer results, limited the use of the HGN test solely for the purpose of probable cause and suppressed the physical evidence. Defendant's motion to suppress his statements to police was denied. Trial commenced. In support of its case, the State presented testimony from the arresting officers, who recounted their observations at the scene of the accident, including the condition of defendant's vehicle, defendant's physical appearance, actions and performance on field sobriety tests. The municipal court convicted defendant of DWI and failure to report, but acquitted him of leaving the scene of the accident. Defendant appealed.

In the trial de novo in Superior Court, R. 3:23-8(a), defendant again sought suppression of his statements asserting a violation of his Miranda1 rights. The court agreed in part, suppressing those statements made following the field sobriety tests, but not defendant's comments made upon first encountering the officers. After its review of the remaining evidence, the court convicted defendant of DWI and failure to report the accident, and imposed the same sentence as the municipal court. On appeal, defendant argues:

POINT I

THE LAW DIVISION ERRED IN CONCLUDING THAT THE RECORD CONTAINED SUFFICIENT EVIDENCE, EVEN AFTER THE SUPPRESSION OF CERTAIN STATEMENTS, TO CONCLUDE THAT DEFENDANT WAS GUILTY OF DRIVING WHILE INTOXICATED.

POINT II

THE POLICE LACKED PROBABLE CAUSE TO ARREST MR. HAKIM FOR A SUSPECTED VIOLATION OF N.J.S.A. 39:4-50.

Following our review of these arguments, in light of the record and the applicable law, we conclude the Law Division judgment is firmly supported by sufficient credible evidence. We affirm defendant's conviction and sentence.

The arresting officers, Sergeant Mark Hirsch and Jason Lanzilotti, testified that at 4 a.m. on June 1, 2007, while in Cresskill police headquarters, they heard a loud noise, which sounded like an automobile crash. Traveling west toward the sound, the police headed to Union Avenue. Along the right curb line, they found a knocked over streetlight standard, a crushed planter and a trash can, which had been run over, spreading its contents over the roadway. The police began investigating and at 4:30 a.m., located a black Cadillac Escalade parked in the Cresskill Pizza parking lot, with a flat right front tire, dirt imbedded on the right wheel rims, damage to the front right wheel rim, and dents on the vehicle's right fender.

Defendant was standing near the Escalade. He apologized when he saw the officers stating, "I fucked up." When asked what that meant, defendant admitted, "I fell asleep while I was driving." Detecting an odor of alcohol emanating from defendant's breath, the officers asked how much he had been drinking. Defendant responded, "A good amount."

The officers made observations of defendant at the scene and in the course of field sobriety tests, including that his speech was slurred and rambling, his eyes were bloodshot and watery, his face was flushed, he leaned and swayed for balance, he staggered when walking, he could neither perform the heel to toe walk without consistently stepping off the line nor the one-legged stand without losing his balance. Finally, while at the police station, after being placed in custody, defendant was observed kneeling in his cell, drinking from the toilet bowl.

Municipal Court Judge Bottinelli found defendant was guilty of DWI and failing to report the accident. The court imposed applicable fines, court costs, assessments and surcharges, ordered defendant to attend the Intoxicated Driver's Resource Center for twelve to forty-eight hours and suspended his driving privileges for three months. Defendant appealed.

In the Law Division appeal before Judge Austin, defendant renewed his argument to suppress his statements. Following an independent review of the evidentiary record of the municipal court, after giving due regard to the municipal judge's opportunity to access the credibility of the witnesses, Judge Austin found the observational evidence sufficient to convict defendant of DWI and the related charge. State v. Johnson, 42 N.J. 146, 157 (1964); State v. Loce, 267 N.J. Super 102, 104 (Law. Div. 1991), aff'd o.b., 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1997). The court imposed the same sentence as the municipal court.

On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). However, as with the Law Division, we are not in a position to judge credibility and do not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, supra, 42 N.J. at 161-62). We may "not weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1997), but we give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Unless we determine the Law Division's finding was "clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then, [] should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Avena, supra, 281 N.J. Super. at 333 (citations omitted).

Defendant suggests his conduct, as observed by the officers, revealed his confusion after an automobile accident, having fallen asleep behind the wheel. He contends the Law Division erred, asserting the conviction is against the weight of the evidence.

These bald arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We conclude the credible observational evidence in the record, which included the property damage on Union Avenue, the linked damage to defendant's vehicle, the fact that defendant removed his car to an off-street parking lot, defendant's unsolicited initial admission he had consumed alcohol, his physical signs, failed sobriety tests and conduct while confined, cumulatively prove beyond a reasonable doubt defendant was operating the Escalade, which was the vehicle involved in the crash on Union Avenue, while under the influence of intoxicating liquor. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005); State v. Cyran, 363 N.J. Super. 442, 444-45 (App. Div. 2003); State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984).

Similarly, we reject defendant's challenge to the probable cause for arrest. "'[T]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer 'had reasonable grounds to believe' that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50].'" State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967). Suffice it to say, defendant's argument ignores the weight placed on the testimony of the officers, who encountered and field tested defendant immediately following the accident. Grant, supra, 196 N.J. Super. at 476; R. 2:11-3(e)(1)(E).

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