STATE OF NEW JERSEY v. ANTHONY GUMMERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0590-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY GUMMERSON,

Defendant-Appellant.

November 19, 2012

Submitted October 2, 2012 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-055.

O'Donnell & Dumbroff, attorneys for appellant (David H. Dumbroff, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Anthony Gummerson appeals his conviction for driving while intoxicated, contrary to N.J.S.A. 39:4-50. For the reasons that follow, we affirm.

I.

On May 2, 2010, at approximately 1:30 a.m., Corporal Brian Bigham of the Washington Township Police Department witnessed defendant's vehicle drift over the right fog line and the center passing line several times on U.S. Highway 46 for approximately two miles.

While speaking to defendant after pulling him over, Corporal Bigham noticed an odor of alcohol and that defendant appeared sleepy with bloodshot and watery eyes. Based on these observations and defendant's erratic driving, Corporal Bigham administered six field sobriety tests.

Prior to performing the field sobriety tests, Corporal Bigham asked defendant if he had any impairments that would prevent him from performing the tests. Defendant indicated that he had a club foot, which Corporal Bigham said he would take into account.

On the alphabet test, defendant incorrectly recited the letters out of order "T, U, R, V". Additionally, he failed to complete the counting test correctly by not stopping at eleven on the way back to one from twenty-one, per Corporal Bigham's instructions.

Defendant also had difficulty performing the physical tests. During the walk-and-turn test, he had trouble maintaining his balance and kept separating his feet. During the one-leg stand test, defendant put his foot back to the ground within a few seconds and swayed back and forth. Finally, when performing the Romberg balance test, defendant swayed front to back approximately two inches.

At the conclusion of the field sobriety testing, defendant admitted to having consumed three or four beers, an increase from his original claim of two or three when first pulled over.

Based upon defendant's erratic driving, his appearance, and the results of the field sobriety tests, Corporal Bigham concluded that defendant was under the influence of alcohol and was over the legal limit allowed for driving. Defendant was then placed under arrest and transported to the police station where he provided breath samples for the Alcotest. The test resulted in a Blood Alcohol Content (BAC) reading of 0.12%.1

The case proceeded to trial in the Washington Township Municipal Court on August 12, 2010, September 30, 2010, and October 28, 2010. On October 13, 2010, near the conclusion of trial, defendant filed a discovery motion requesting the police department's standard operating procedure and the personnel file for Corporal Bigham. The motion was denied as untimely.

The State presented the testimony of Corporal Bigham regarding his stop of defendant's vehicle, the events that followed, and his opinion regarding defendant's intoxication. He also testified as to his training and certification to make field sobriety observations as a drug recognition expert.

The defense presented testimony from two expert witnesses. First, defendant's family physician, Dr. Robert Pampin, testified that defendant's club foot would have interfered with his ability to complete physical balance tests. He related that defendant had undergone corrective surgery at nine months of age and that the club foot was corrected "to the degree it could be corrected." He agreed the corrected club foot would not have had any impact upon defendant's speech, or his ability to count or recite the alphabet.

The second defense expert to testify was an alcohol detection expert, Gilbert Snowden. He criticized certain aspects of the field sobriety testing and took issue with the conclusions reached from the tests.

Defendant then testified and stated that he was not intoxicated when stopped by Corporal Bigham. He said that he was born with a club foot but then underwent corrective surgery. On cross-examination, he agreed that he told Corporal Bigham that he "had a club foot," i.e. past tense. Defendant acknowledged he ran cross-country in high school, and was a championship wrestler in both high school and college. He also admitted that, during the one-leg stand test, Corporal Bigham offered him the choice of which leg to stand on. Defendant chose his right leg, the one with the club foot. Defendant further stated his left leg is the stronger of the two and that he did not indicate any difficulty during the tests due to his club foot.

Corporal Bigham was found credible by the municipal court judge based on the corporal's training and experience as well as his trial testimony. This finding was also made by Judge David H. Ironson during the trial de novo before the Law Division, where he found "an adequate factual basis for a finding that" defendant was driving while intoxicated.

On this appeal, defendant argues that the municipal judge failed to provide sufficient reasons for rejecting the testimony of the defense experts; the judge unfairly denied the late discovery requests; the field sobriety tests were improperly administered and the results were misinterpreted; and the officer should have directed defendant to take the tests in a location in view of the car video.

II.

After carefully reviewing the entire record and the applicable law, we conclude that defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Ironson's comprehensive oral opinion. We add the following comments.

Our scope of review is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Review in the Law Division is de novo on the record, Rule 3:23-8(a), but the Law Division judge must give due, although not necessarily controlling, regard to the opportunity of the municipal court judge to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). We are limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162.

To establish a violation of N.J.S.A. 39:4-50(a) without a blood alcohol reading, the State must prove beyond a reasonable doubt that defendant was "under the influence of intoxicating liquor." To prove a defendant's intoxication, the State is entitled to rely on observational evidence such as the defendant's "demeanor and physical appearance[,]" as well as "proofs as to the cause of intoxication i.e., the smell of alcohol, an admission of the consumption of alcohol or a lay opinion of alcohol intoxication." State v. Bealor, 187 N.J. 574, 588-89 (2006).

Further, there is no requirement that defendant be "absolutely 'drunk' in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 2003).

Corporal Bigham's dash mobile vision camera recorded the stop; however, the audio is difficult to hear and follow on the recording because the field sobriety testing was completed, by department policy, in front of the suspect's car rather than the patrol car. Defendant contends this policy represents an effort by the police department to "eliminate the objectivity offered by . . . videotape." The State disputes this contention, claiming that the policy reflects safety concerns.

"There is no duty on the part of the police to create evidence by videotaping suspected drunken drivers." State v. Gordon, 261 N.J. Super. 462, 464 (App. Div. 1993). Defendant failed to show that the videotape's imperfections were caused by bad faith. We find no basis to question the departmental safety policy implicated here.

We further find no abuse of discretion in the denial of defendant's untimely discovery requests. See State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 (2010) (applying the abuse of discretion standard to the review of a denial of a discovery application); Spinks v. Twp. of Clinton, 402 N.J. Super. 454 (App. Div. 2008) (finding an appellate court "normally defer[s] to the trial court's disposition of discovery matters").

We are also satisfied that the record contains substantial credible evidence to support the finding by the Law Division judge that defendant was driving while under the influence of intoxicating liquors, without regard to the Alcotest reading. See State v. Locurto, 157 N.J. 463, 470-71 (1999); Johnson, supra, 42 N.J. at 161-62. Contrary to defendant's contention, there was ample evidence to support his conviction based on his physical condition at the time of the stop. Corporal Bigham testified that defendant was driving erratically, appeared sleepy, had bloodshot and watery eyes, smelled of alcohol, and that he performed poorly on the field sobriety tests. Additionally, defendant admitted to drinking beer prior to the stop. The observations and opinion of Corporal Bigham were sufficient to allow Judge Ironson to determine beyond a reasonable doubt that defendant was guilty of driving while intoxicated. Locurto, supra, 157 N.J. at 471.

Affirmed.

1 The reading was not admitted at trial, however, because the State was unable to prove strict compliance with the requirements established by the Supreme Court for the introduction of this scientific evidence in State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).