STATE OF NEW JERSEY v. KYANGAZI DENSON

NOT FOR PUBLICATION WITHOUT THE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.

KYANGAZI DENSON,

Defendant-Appellant.

___________________________________

October 8, 2013

Submitted October 1, 2013 Decided

Before Judges Reisner and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 12-016.

Law Office of Michael F. McConnell, LLC, attorneys for appellant (Mr. McConnell, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Stephanie L. Dugan, on the brief).

PER CURIAM

Defendant Kyangazi Denson appeals from her August 17, 2012 conviction by the Law Division for driving while intoxicated. N.J.S.A. 39:4-50. We affirm.1

Defendant's conviction was based on the following evidence. Allenhurst Patrol Officer Scott Rapolla observed defendant's car weave within its lane of travel and then drift completely into the opposite lane of traffic. He began following defendant's car and saw her drive part-way past a stop sign before bringing her car to a halt. At that point, he activated his police vehicle lights and made a traffic stop.

The officer smelled alcohol when he approached defendant to ask for her driving credentials. After she was unable to recite the alphabet without several errors, Rapolla called for a

back-up officer to perform additional sobriety tests. The testing was documented on videotape, which was played for the court. Defendant failed all of the sobriety tests. She told the officers that she had been drinking "dirty martinis" and was not "used to how strong they were."

At the municipal court trial, defendant testified that she had an injured hip, which made it impossible for her to walk a straight line or perform the other physical tests for sobriety. However, the medical reports that she presented to the court indicated that she had a normal range of motion in her hips and lower back.

The municipal court judge found that defendant had operated her vehicle under the influence of alcohol. He found it was undisputed that defendant drove her car into the wrong lane of traffic, the officer smelled alcohol on her breath, and defendant admitted she had been drinking. The judge found that defendant's medical records did not support her claim that her hip condition prevented her from successfully performing the sobriety tests. He noted that during the "walk a straight line" test, defendant almost fell down and the officers had to hold her up to keep her on her feet. The judge concluded that she failed the tests because she was intoxicated. Defendant appealed her conviction to the Law Division.

After reviewing the record de novo, Judge Francis J. Vernoia issued an oral opinion on August 17, 2012, also concluding that defendant drove while intoxicated. He found that defendant drove her car into the wrong lane of traffic, smelled of alcohol, admitted she had three drinks, and could not recite the alphabet without mistakes.

Judge Vernoia did not find defendant's testimony credible, for reasons he explained in detail. He found that on the video defendant could be heard telling the officer she had three drinks, while she testified in court that she had two drinks. He noted that the medical records did not support her claim of a continuing hip problem, and the video showed that she could not even stand up without assistance. Like the municipal judge, he found that defendant's alleged hip problem did not cause her to fail the field sobriety tests. He concluded that her conduct on that evening demonstrated that she was intoxicated.

On this appeal, we must defer to Judge Vernoia's factual findings so long as they are supported by sufficient credible evidence. See State v. Locurto, 157 N.J. 463, 472 (1999). We owe particular deference where the Law Division judge and the municipal judge reach the same factual conclusions. Id. at 474.

On this appeal, defendant raises the following points for our consideration:

POINT ONE: AT THE DE NOVO HEARING IN THE LAW DIVISION THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH BEYOND A REASONABLE DOUBT THAT DEFENDANT OPERATED A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL.

POINT TWO: ON DE NOVO TRIAL THE LAW DIVISION ERRED IN OVERRULING THE LOWER COURT'S FACTUAL DETERMINATION THAT DEFENDANT WAS A CREDIBLE WITNESS.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Vernoia's opinion. We add the following comments.

Defendant contends that the conviction was against the weight of the evidence. We cannot agree. Both Judge Vernoia and the municipal judge reached the same essential factual conclusions - that defendant did not fail the sobriety tests because of a hip problem but rather that she failed the tests because she was under the influence of alcohol. Both judges concluded that she drove while intoxicated. Contrary to defendant's argument on this appeal, the municipal judge did not find defendant "credible" on the issue of intoxication. After convicting her, and before imposing the sentence, he noted that he believed defendant's testimony that she was polite to the officers and did the best she could on the sobriety tests.

Having reviewed the record, we find that there is ample credible evidence to support Judge Vernoia's decision and, accordingly, we affirm the conviction.

1 Because the Alcotest machine was not functioning properly at the time defendant was arrested, the State's case rested on the police officers' observations of defendant and the video of the sobriety tests.