STATE OF NEW JERSEY v. KIRSTEN STURGES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIRSTEN STURGES,

Defendant-Appellant.

________________________________

Argued July 9, 2013 Decided August 6, 2013

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-039.

Joshua H. Reinitz argued the cause for appellant (Iacullo Martino, L.L.C., attorneys; Mr. Reinitz, of counsel and on the brief).

Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant Kirsten Sturges appeals from the August 1, 2012 order of the Law Division finding her guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant was sentenced to 180 days incarceration,1 of which defendant could serve up to ninety days in an inpatient drug/alcohol treatment program, Intoxicated Drivers Resource Center attendance, ten years license suspension, and installation of an ignition interlock device for defendant's principal vehicle during her license suspension and two years thereafter. We affirm.

I.

The record discloses the following facts adduced from the trial de novo in the Law Division on the record developed in the municipal court.

On December 19, 2010, Officer Boris Sanchez of the Chester Township Police Department was dispatched to an automobile accident on Parker Road. When he arrived at the scene he observed that a vehicle had run off the road and was wedged against a tree or a bush. Officer Sanchez approached the vehicle and detected an odor of alcohol. He inquired whether defendant needed medical assistance and she responded "no." Defendant explained to the officer that there was a small white dog in the middle of the road which caused her to swerve. Officer Sanchez believed defendant was slurring her speech, "very talkative," and "a little fumbly." He asked whether defendant had consumed any alcoholic beverage and she said she had had two.

Sergeant Edward Noonan of the Chester Township Police Department then arrived on the scene. When he was speaking to defendant through the passenger side window he observed her slurred speech and he also detected the odor of alcohol. He asked defendant to exit the vehicle and she did so "fumbling a little bit, and having a little trouble getting out of the car." Sergeant Noonan conducted a field sobriety test on defendant. He first administered a horizontal gaze nystagmus (HGN) test,2 and based on the results, Sergeant Noonan believed defendant was intoxicated.

Sergeant Noonan then had defendant perform a one-leg stand test. Defendant was instructed to stand with her hands at her side while she lifted one foot in the air and counted to thirty. While performing the test, defendant swayed and put her foot down after ten seconds. Defendant began the test again but swayed and had to raise her arms for balance.

Sergeant Noonan then conducted a walk-and-turn test. Defendant was instructed to walk heel-to-toe for nine steps with her hands at her side, to turn, and then take nine steps back. While performing this test, defendant missed heel-to-toe on every step, swayed, and made an improper turn. On her second try, defendant did not walk heel-to-toe and on her way back she took seven steps instead of nine. During the tests, Sergeant Noonan observed that defendant staggered as she walked. He concluded that defendant was intoxicated. Officer Sanchez reached the same conclusion and placed defendant under arrest.

At police headquarters defendant was read the implied consent law, which she confirmed she understood, and expressed that she was willing to give breath samples. Sergeant Noonan took two breath samples from defendant. Defendant's breath alcohol content was 0.14%.

Defendant was subsequently charged with driving while intoxicated, N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; failure to keep right, N.J.S.A. 39:4-82; and failure to display a driver's license, N.J.S.A. 39:3-29. On May 6, 2011, defendant filed pre-trial motions to suppress the Alcotest readings, suppress the fruits of a warrantless search and seizure, and to examine the Alcotest room. The municipal court judge denied defendant's request to suppress the Alcotest readings and to examine the Alcotest room.

During defendant's municipal court trial, the municipal court judge indicated that he wanted to review the video of defendant taken in police headquarters. Thereafter, the State indicated that the Alcotest should be inadmissible as the twenty minute observation period was not satisfied because defendant was absent on the video for a period of time before her Alcotest. At the conclusion of her trial, defendant was found guilty of failure to keep right and driving while intoxicated, based upon the observations of Officer Sanchez and Sergeant Noonan. The reckless driving and failure to exhibit her driver's license charges were dismissed. Defendant appealed her driving while intoxicated conviction and the denial of her motion to examine the Alcotest room.

A de novo trial was conducted before the Law Division judge. The Law Division judge found defendant guilty of driving while intoxicated, and imposed the same sentence levied by the Municipal Court judge. It is from this decision that defendant appeals.

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

Point I

DEFENDANT'S CONSTITUTIONALLY GUARANTEED RIGHTS TO DUE PROCESS AND FUNDAMENTAL FAIRNESS WERE VIOLATED BY THE COURT'S FAILURE TO GRANT DEFENDANT'S MOTION TO INSPECT THE ALCOTEST ROOM.

Point II

THERE IS NOT SUFFICIENT CREDIBLE EVIDENCE UPON WHICH A CONVICTION FOR DRIVING WHILE INTOXICATED MAY BE FOUND.

II.

Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 157 (1964)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).

Since the Law Division judge is not in a position to judge the credibility of witnesses, he should defer to the credibility findings of the municipal court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "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." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). In this case, the Law Division judge clearly understood that his role was to make independent findings; findings that, ultimately, were reflected in his written opinion. However, no such deference is owed to the Law Division or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts. See State v. Handy, 206 N.J. 39, 45 (2011) (stating "appellate review of legal determinations is plenary").

Defendant argues that her constitutional rights were violated by the court's failure to grant her motion to inspect the Alcotest room. We disagree.

The Law Division judge stated that defendant's argument was that Officer Sanchez could not observe her during the period of time he was not in the video and thus inspection of the Alcotest room was highly relevant because Officer Sanchez testified regarding his observations of defendant in the room. The Law Division judge concluded that the ultimate goal of defendant's motion was to impeach Officer Sanchez. The Law Division judge then determined that he was "simply going to afford defendant consideration of the case by excluding Officer Sanchez's testimony in toto had the matter the discovery motion been granted and the defendant was able to successfully impeach Officer Sanchez's credibility so as to result in the entire disregard of Officer Sanchez's testimony." Because the Law Division judge did not consider Officer Sanchez's testimony or the Alcotest results, defendant's argument that her constitutional rights were violated by the court's failure to grant her motion are not persuasive.

Turning to defendant's second point, we find that there was sufficient evidence upon which a conviction for driving while intoxicated could be found. It is well-established that an officer's subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. See State v. Cryan, 363 N.J. Super. 442, 454-55 (App. Div. 2003) (sustaining DWI conviction based on proofs of defendant's bloodshot eyes, hostility and strong odor of alcohol); State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on the defendant's operation of a motor vehicle without its headlights on and the officer's observation of the odor of alcohol on the defendant's breath, inability to perform field sobriety tests, combativeness, and swaying); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001) (sustaining DWI conviction on officer's subjective observations of the defendant's watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and admission to drinking alcohol earlier in the day).

In his review, the Law Division judge examined the totality of the evidence and found:

Sergeant Noonan testified he had 16 years of experience in law enforcement, 11 year veteran of the Chester Township Police Department. He testified he received training relative to the standard field sobriety testing at the Morris County Police Academy and later received additional training in DWI detection and enforcement. He's also certified as a Breathalyzer operator and an Alcotest 7110 operator. And before December 2010 he had been arresting officer in over of over 50 DWI cases and assisted in close to a hundred others.

When Sergeant Noonan arrived at the scene of the accident he observed the defendant's Kia vehicle in a cluster of dogwood trees which lodged he driver's side door shut. He stated he smelled the odor of alcohol and that the defendant exhibited slurred speech. He further observed the defendant's hand movements were fumbling. And he inquired whether the defendant had consumed any alcoholic beverages and she responded she had a couple or two.

He asked the defendant to go up to the roadway to perform field sobriety tests where the defendant indicates she had a previous injury to her right knee but it would not hinder her ability to perform such tests. He advised her that she could perform a test with whichever leg she preferred. He described and demonstrated the one-leg stand. He found the defendant swayed during the test, put her foot down after 10 counts, and used her arms for balance. He had to restart the the test to complete to allow her to complete it.

He described and demonstrated walk and turn. He asked the defendant to place her hand to her side and her left foot in front of her right foot while he explained the test. Sergeant Noonan then inquired whether the defendant understood his instructions, demonstrated the test, and then once again asked her whether she understood. She responded in the affirmative both times and began the test. Sergeant Noonan concluded the defendant took wide steps, failed to touch heel to toe, swayed back and forth for balance, made an improper turn, and took several steps post-turn instead of nine. He further testified that the defendant raised both arms almost to her shoulder height throughout the test.

He observed that the defendant could stand, however, she had bloodshot eyes slurred speech, and staggered as she walked, and he made a conclusion that she was intoxicated. Now, in the aggregate, the testimony of Sergeant Noonan does establish the that in fact the defendant was intoxicated, and that she had been driving at the time of the accident based upon the totality of the circumstances.

Sergeant Noonan's field observations of defendant's appearance, behavior, breath, and speech are adequate to sustain her DWI conviction. See State v. Kent, 391 N.J. Super. 352, 383-84 (App. Div. 2007).

We find no reason to disturb the Law Division judge's determination that defendant was guilty of DWI beyond a reasonable doubt.

1 The sentence of incarceration was stayed pending this appeal. We vacate the stay.

2 While an HGN test is not admissible at trial, the police may use it to ascertain probable cause. See State v. Doriguzzi, 334 N.J. Super. 530, 546 (App. Div. 2000).