STATE OF NEW JERSEY v. GARY W. SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5715-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY W. SMITH,

Defendant-Appellant.

_______________________________________

December 28, 2012

 

Submitted October 11, 2012 - Decided

 

Before Judges Sapp-Peterson and Nugent.

 

On Appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-73-08.

 

Kearney and Associates, P.C., attorneys for appellant (Scott D. Burns, on the briefs).

 

Warren T. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

 

Defendant Gary W. Smith appeals from his conviction and sentence for driving while intoxicated (DWI), N.J.S.A. 39:4-50. He raises the following arguments:

1. THE STATE FAILED TO PROVE THAT DEFENDANT WAS IN VIOLATION OF N.J.S.A. 39:4-50 BEYOND A REASONABLE DOUBT

 

A. THE LAW DIVISION JUDGE ERRED BY MISINTERPRETING THE "20 MINUTE OBSERVATION RULE" AND REVERSED THE MUNICIPAL COURT JUDGE'S RULING THAT THE BAC READING SHOULD BE SUPPRESSED

 

B. BECAUSE OF DEFENDANT/APPELLANT'S MEDICAL CONDITION, THE PSYCHO-PHYSICAL TESTS YIELDED NO RELIABLE INFORMATION

 

C. THE LAW DIVISION COURT ERRED BY ENHANCING THE DEFENDANT'S SENTENCE ON APPEAL

 

Having considered defendant's arguments in light of the record, we affirm the conviction and sentencing, but remand solely for the purpose of correcting a clerical mistake in the judgment of conviction.

These are the facts the parties developed during the municipal court trial. On February 1, 2006, at approximately 10:30 p.m., defendant was driving a gray Yukon SUV and traveling southbound on Erial Road in Gloucester Township. Brian McKendry, the sergeant for the Patrol Division of the Gloucester Township Police Department, was driving behind defendant's SUV. According to McKendry, as the SUV approached a traffic light, it "moved to the left over the double yellow line." A short time later, as the SUV approached another traffic light, its "right turn signal came on . . . then [it] swerved to the right shoulder," went through the green light, continued for a while "real close to the curb, and then all of a sudden . . . swerved back over towards the center line." McKendry stopped defendant and asked him for his credentials.

Defendant initially produced his driver's license and a piece of paper containing phone numbers. When McKendry asked what the numbers were, defendant said "oh" and took the numbers back. Defendant then began looking for other documents. It appeared to McKendry that defendant was having difficulty finding his credentials. McKendry smelled alcohol on defendant's breath and noticed that defendant was slurring his words. Defendant eventually handed McKendry a trailer registration, which McKendry returned. Defendant then gave McKendry two insurance cards.

McKendry asked defendant where he had been and defendant replied he was "coming from a friend's house." When McKendry asked defendant if he "had anything to drink tonight," defendant replied: "Yes, and I think I drank too much." McKendry went to his patrol car to radio for a back-up unit and when he returned to the SUV, he smelled a strong, overpowering odor of cologne. McKendry accused defendant of spraying cologne in the car. Defendant responded, "[w]ell, you know, I wear cologne."

When Patrolman Nicholas Bersani arrived with another back-up officer, McKendry turned over the investigation to Bersani, who had defendant undergo field sobriety tests. Bersani noticed that defendant's eyes were red and watery, his face was flushed, and he appeared to be swaying back and forth. He had to lean against the SUV for balance.

Defendant denied any leg injuries, but claimed to have sustained an injury to his shoulder. In response to Bersani explaining how to do a one-leg stand, defendant twice started before Bersani instructed him to begin. The third time, when Bersani told defendant to begin, defendant said he could not perform the test. Bersani next demonstrated a "walk and turn" test requiring defendant to walk heel-to-toe, nine steps forward, and nine steps back. Defendant "did not touch heel to toe on all nine steps walking forward." In addition, he swayed from side to side.

Bersani placed defendant under arrest and transported him to the police station. During the ride, defendant "stated that he had shoulder surgery and was taking Xanax and Vicodin, and also had a couple of cocktails."

Bersani testified that he and defendant arrived at the station, "twenty-three-oh-three hours, which was 11:03," at which time Bersani escorted defendant into the DWI room. There, Bersani read defendant his rights and continued to observe him to make sure he did not put anything in his mouth, spit, throw up, or burp. Defendant agreed to give breath samples for an Alcotest, and Bersani turned him over to Officer Pace1 who administered the Alcotest.

Officer Pace administered the Alcotest. Defendant stipulated that the machine was properly prepared and that it functioned correctly, but disputed whether the police had observed him for twenty minutes before administering the test. Defendant also contested the accuracy of the "time of arrest" Pace entered. When preparing the machine, Pace entered "22:37 hours," the "dispatch time of the car stop," as the time of arrest. The ticket Bersani issued to defendant noted defendant was arrested at "22:37 hours."

Pace testified he continually observed defendant from the time that he, Pace, "arrived in police headquarters at 23:04 to the time [he] began to place [defendant] on the Alcotest at 23:24." Pace never lost contact with defendant during that time. Based on his training, Pace would have noted if defendant ate anything, drank anything, belched or regurgitated during that twenty-minute interval. Had Pace observed any of those things, he would have started another twenty-minute observation period. Based on Pace's testimony and defendant's stipulation, the court admitted the Alcotest reading of .11 "subject to Defense."

Defendant presented the testimony of Dr. Steven Klein, who had expertise in occupational medicine including toxicology. Before testifying, Dr. Klein had considered the reports of defendant's orthopedist documenting that defendant had undergone shoulder surgeries in November and December 2005. Following the surgeries, defendant began taking an intravenous antibiotic for a systemic infection, Xanax for muscle spasm, and Vicodin for pain. After the second surgery, defendant lost range of motion in his shoulder and experienced tissue loss as the result of a joint infection. Defendant remained under treatment and was still taking three medications in January 2006.

Dr. Klein explained that a person taking an intravenous drug after an infection would "have malaise." Such a person would have a fever and accompanying weakness, which in turn would affect that person's coordination. Dr. Klein also noted that defendant had a degenerative condition in one of his knees. Based upon defendant's medical conditions, particularly his malaise and weakness from the systemic infection, Dr. Klein concluded, within a reasonable degree of medical certainty, that defendant could not have performed the field sobriety tests on the night he was arrested. In the doctor's opinion, defendant would perform such tests erratically "and [he] wouldn't think anything abnormal about that."

The municipal court judge ultimately disallowed the Alcotest reading. Nevertheless, the judge found defendant guilty of DWI. Based upon the officers' observations -- defendant's red eyes, flushed face, inability to stand without swaying, need to lean on a vehicle for support, and poor performance of the field sobriety tests -- and defendant's admission that he had had too much to drink, the judge concluded beyond a reasonable doubt that defendant was intoxicated while operating his SUV.

The municipal court judge suspended defendant's driver's license and registration privileges for two years, and ordered that defendant attend two days of treatment at an intoxicated driver resource center and perform thirty days of community service. The judge also imposed mandatory penalties and assessments, and court costs. Defendant filed a notice of appeal to the Law Division.2

At the trial de novo, after thoroughly recounting the evidence presented by the parties in municipal court, the Law Division judge found defendant guilty of DWI beyond a reasonable doubt. Unlike the municipal court judge, the Law Division judge admitted into evidence and considered the Alcotest results. The judge noted that Bersani had stayed with defendant from the time they arrived at the police station at 11:03 p.m. through the time Pace administered the fourth test at 11:30 p.m. The judge explained that the first two Alcotests, which occurred at 11:24 and 11:25 p.m., did not result in readings, "because the minimum air volume was not achieved." Consequently, "the first reading was actually taken at 23:27 p.m." Bersani had been with defendant since 10:30 p.m. Thus, the judge concluded the State had demonstrated Bersani continually observed defendant for fifty-four continuous minutes before the first failed breath test sample; but even excepting the time before Bersani and defendant arrived at the police station, Bersani had observed defendant for twenty-one minutes before Pace attempted to administer the first Alcotest. Based on the Alcotest reading of .11, the Law Division judge found defendant guilty beyond a reasonable doubt.

The judge further explained that notwithstanding the Alcotest reading, "there was still sufficient observational evidence presented [of] the defendant's guilt beyond a reasonable doubt [of] driving while under the influence."

The Law Division judge suspended defendant's driving privileges for two years3; ordered that he attend two days of treatment in an intoxicated driver resource center and perform thirty days of community service; and ordered that he install an ignition interlock device for his "[p]rincipal vehicle" for a period of two years during the license suspension. The court also imposed mandatory penalties and assessments. Defendant filed this appeal.

Defendant first argues that the State failed to prove beyond a reasonable doubt that he drove while intoxicated. Defendant's argument is twofold: the Law Division improperly reversed the municipal court judge's ruling excluding the Alcotest results; and the Law Division judge should have determined that defendant's medical condition rendered the field sobriety tests unreliable.

When a defendant appeals a Law Division conviction of violating a motor vehicle law, the scope of our review is both narrow and deferential. State v. Stas, 212 N.J. 37, 48-49 (2012). Our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J.146, 162 (1964). When we conclude 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. We "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." State v. Locurto, 157 N.J.463, 474 (1999). "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid.

In the first of his two-pronged attack on the sufficiency of the State's evidence, defendant does not dispute the Law Division finding that the police officers observed defendant for twenty minutes before administering the Alcotest. Rather, defendant asserts the Alcotest results should have been suppressed because Pace testified that in preparing the Alcotest, he entered the "dispatch time . . . as the time of arrest." Defendant contends that entering the dispatch time, as opposed to the time of arrest, constitutes operator error.

In State v. Chun, 194 N.J. 54, 79 (2008), the Supreme Court explained the significance of the twenty-minute observation period:

Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.

 

Here, Bersani observed defendant for more than twenty minutes after the two arrived at the police station. By then, defendant had, indisputably, been arrested. Assuming the dispatch time did not coincide precisely with the instant of defendant's arrest under a nuanced legal analysis of that event, the time differential would not have affected the operation of the Alcotest. Both events -- the dispatch and the arrest -- took place more than twenty minutes before Pace attempted to administer the first Alcotest. Regardless of which time was used, the Alcotest software would not have prohibited operation of the Alcotest, because more than twenty minutes had passed after each event. The Law Division judge properly considered the Alcotest results.

More importantly, there was sufficient evidence independent of the Alcotest to prove defendant's guilt beyond a reasonable doubt. Following both the municipal court trial and the trial de novo, the judges found that the observations and opinions of the officers were sufficient to establish defendant's guilt. We agree.

An arresting officer's field observations of a defendant's appearance, behavior, breath, and speech may sustain a defendant's DWI conviction. See State v. Kent, 391 N.J. Super. 352, 383-84 (App. Div. 2007). That is the case here. Defendant argues that both judges placed too much emphasis on the field sobriety tests, and too little emphasis on Dr. Klein's testimony. Those fact and credibility determinations, however, are supported by sufficient credible evidence in the record. Johnson, supra, 42 N.J. at 162. Dr. Klein's "alternative explanation for [defendant's] conduct immediately after the accident does not render the trial court's conclusions legally defective." State v. Cryan, 363 N.J. Super. 442, 457 (App. Div. 2003).

Lastly, defendant argues that the Law Division judge improperly enhanced his sentence by requiring him to install an interlock device on his car during his two-year license suspension. We disagree.

When defendant was sentenced, N.J.S.A. 39:4-50(a)(2) provided in pertinent part: "For a second violation, a person also shall be required to install an ignition interlock device . . . or shall have his registration certificate and registration plates revoked for two years . . . ." The municipal court suspended defendant's registration certificate and registration plates for two years. We do not consider the Law Division judge's imposition of the statutory alternative -- installing the interlock device -- an enhancement of the sentence imposed by the municipal court judge.

W

e remand to the Law Division solely for the purpose of correcting the judgment of conviction. We affirm defendant's conviction and sentence.

1 Officer Pace's first name is not provided in the transcripts.

2 The Law Division initially dismissed defendant's notice of appeal as untimely. The appeal was subsequently reinstated, but the case was then remanded to the municipal court for a new trial because the municipal court trial transcripts had been lost. Before the retrial, the transcripts were located and the appeal to the Law Division was reinstated.

3 Although the judge in his oral opinion stated explicitly that he was not imposing a two-year suspension of defendant's registration privileges, his written order includes a two-year suspension of registration privileges. "It is firmly established that the sentencing transcript is 'the true source of the sentence.'" State v. Walker, 322 N.J. Super. 535, 556 (App. Div.) (quoting State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956)) (finding that the consecutive sentence issued in the sentencing transcript took precedence over the concurrent sentence in the judgment of conviction), certif. denied, 162 N.J. 487 (1999).