STATE OF NEW JERSEY v. NICHOLAS JAMESON

NOT FOR PUBLICATION WITHOUT THE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.

NICHOLAS JAMESON,

Defendant-Appellant.

___________________________

October 15, 2013

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4990.

John J. Bruno, Jr., argued the cause for appellant (Bruno & Ferraro, attorneys; Salvatore R. Vargo, of counsel and on the brief).

Keith E. Hoffman, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hoffman, on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Nicholas Jameson was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50.1 Judge Yablonsky sentenced defendant to a three-month driver's license suspension and twelve hours in the Intoxicated Driver Resource Center (IDRC) program, and imposed the appropriate fines, costs and surcharges. This appeal followed.

On appeal, defendant raises the following contention:

I. THE STATE LACKS SUFFICIENT CREDIBLE EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT [DEFENDANT] OPERATED HIS VEHICLE WHILE INTOXICATED.

We reject this contention and affirm.

We derive the following facts from the record. While on patrol at approximately 1:15 a.m. on December 23, 2010, police officer Robert Miller from the City of Clifton Police Department was driving behind a gray Volkswagon. The officer followed the car onto Route 3 eastbound and saw the driver, later identified as defendant, immediately move into the center lane without signaling. Defendant then approached another vehicle in the center lane at a speed of approximately eighty to eighty-five miles per hour and began tailgating. Defendant then changed lanes without signaling and passed other vehicles on the right at a speed of between eighty to eighty-five miles per hour.

Defendant was cooperative, polite and respectful when Officer Miller stopped him, and dressed neatly in a suit and tie. However, defendant was unable to produce his driver's license and the officer saw that his eyes were bloodshot and watery. Defendant said he was on his way home from a Christmas party in Carlstadt and had consumed three or four beers. Based on Officer Miller's training and experience with "hundreds" of DWI investigations, as well as his observations of defendant's driving behavior, bloodshot and watery eyes, and admission to drinking alcohol, the officer formed an opinion that defendant was under the influence of intoxicating liquor and called for a DWI rover unit.

Officers Louis Reza and Michael Howe responded to the call and took over the investigation. Defendant was polite, calm and cooperative. However, while conversing with defendant, the officers detected an odor of alcohol emanating from him and saw that his eyes were bloodshot. Officer Howe also saw that defendant's eyes were watery. The officers asked defendant to exit and walk to the front of his car. Although defendant exited in a normal fashion, the officers saw him sway slightly as he was walking to the front of the car.

Officer Reza administered two field sobriety tests: the one-leg stand and the walk and turn test. Defendant failed to properly perform both tests in accordance with the officer's verbal and physical instructions. Defendant twice began to perform the one-leg stand test before Officer Reza told him to begin, and held his foot up between four to eight inches from the ground instead of six inches as instructed. Officer Howe saw both of defendant's arms fluctuate up and down between six and twelve inches from his body to maintain his balance, and Officer Reza saw defendant raise his arms "approximately eight inches." In addition, defendant did not look at the toe of his shoe as instructed, but instead, looked straight ahead. Defendant was also "swaying slightly side to side."

Defendant twice began to perform the walk and turn test before Officer Reza told him to begin. Officer Howe saw defendant raise his left arm six to twelve inches from his body to maintain balance. Officer Reza saw defendant raise his arms six inches during the first set of nine steps and raise his right arm two feet during the second set of nine steps. Defendant also "swayed from side to side" during the test. Officer Howe described him as "wobbly." Although defendant properly performed the steps and pivot, his toes did not touch his heels as instructed.

After administering the tests, Officers Howe and Reza determined, based on the totality of their observations, sensory impressions, and defendant's performance of the field sobriety tests, that defendant was intoxicated and not able to operate a motor vehicle. They placed him under arrest and transported him to police headquarters for a breath test; however, due to a problem with the Alcotest equipment, they transported him to the Little Falls Police Department.2 During the ride, they smelled a "moderate to heavy" odor of alcohol coming from the back seat of the police cruiser that had not existed prior to defendant s presence in the vehicle.

At trial, defendant presented an expert in field sobriety tests. The expert conceded that Officer Reza had properly demonstrated and administered both field sobriety tests, and defendant did not comply with the officer's instructions. However, the expert testified that National Highway and Safety Traffic Administration (NHSTA) considered a slower rate of speed, rather than a higher rate, to be indicative of DWI. The expert also testified that defendant exhibited only one of the four objective clues the NHSTA utilizes to determine a person's level of driving impairment during the one-leg stand test and only three of the eight objective clues the NHSTA utilized to determine a person's level of driving impairment during of the walk and turn test. The expert concluded that, based upon those clues, there was a sixty-eight percent chance that defendant had a blood alcohol content (BAC) of .10% or greater. However, he did not indicate whether this was defendant's BAC at the time of the test, while defendant was driving, or earlier.

The municipal court judge found that the officers' testimony was credible. After making factual findings and legal conclusions, the judge found defendant guilty of DWI and careless driving and not guilty of failure to produce a driver's license. The judge imposed a fine and court costs for the careless driving conviction. For the DWI conviction, the judge sentenced defendant to a three-month driver's license suspension and twelve hours in the IDRC program and imposed the appropriate fines, court costs and surcharges.

Defendant appealed his DWI conviction to the Law Division. Following a trial de novo, Judge Yablonsky made detailed factual findings and legal conclusions and found defendant guilty of DWI. The judge sentenced defendant to a three-month driver's license suspension and twelve hours in the IDRC program and imposed the appropriate fines, court costs and surcharges. This appeal followed.

On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division not the municipal court. Id.at 162. However, as in the Law Division, we are not in as good of a position as the municipal court judge to determine credibility and should, therefore, refrain from making new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

A DWI conviction may be based upon physical evidence, such as symptoms observed by the arresting police officers or failure of the defendant to perform adequately on balance and coordination tests. State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996); see also State v. Ghegan, 213 N.J. Super. 383, 385 (App. Div. 1986). A defendant's demeanor, physical appearance, slurred speech, and bloodshot eyes, together with an odor of alcohol or an admission of the consumption of alcohol and poor performance on field sobriety tests, are sufficient to sustain a DWI conviction. State v. Bealor, 187 N.J. 574, 588-89 (2006); State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993); Ghegan, supra, 213 N.J. Super. at 385.

Given our standard of review, we are satisfied that the record contains ample credible evidence from which Judge Yablonsky could have found defendant guilty of DWI beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162. Defendant's dangerous driving, and his bloodshot and watery eyes, together with the odor of alcohol, his admission of the consumption of alcohol, and his poor performance on field sobriety tests, were more than sufficient to sustain a DWI conviction.

1 Defendant had also been charged with careless driving, N.J.S.A. 39:4-97, and failure to produce a driver's license, N.J.S.A. 39:3-29. The municipal court judge found defendant guilty of careless driving and not guilty of the latter charge. Defendant did not appeal from his careless driving conviction.

2 Defendant submitted to a breath test at the Little Falls Police Department; however, the tests were "out of tolerance" and the results could not be used.