STATE OF NEW JERSEY v. ROBERT BAY

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT BAY,

Defendant-Appellant.

_______________________________

November 13, 2013

Argued June 25, 2013 Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4962.

Anthony J. Randazzo argued the cause for appellant (Miles Feinstein, attorney; Mr. Feinstein, on the brief).

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

PER CURIAM

Defendant Robert Bay appeals the February 16, 2012 Law Division order finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. This was defendant's third conviction for DWI. Therefore, the judge imposed a ten-year suspension of his driving privileges, six months in the Passaic County Jail, a three-year period of ignition interlock, and imposed fines, penalties, and surcharges totaling $1358. Only the custodial portion of defendant's sentence was stayed pending appeal.

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

POINT I

THE DEFENDANT'S SUMMONSES (FOR DWI AND CARELESS DRIVING) MUST BE DISMISSED SINCE THE STATE FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE MOTOR VEHICLE STOP WAS BASED ON AN ARTICULABLE AND REASONABLE SUSPICION OF A MOTOR VEHICLE INFRACTION IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

POINT II

THE LAW DIVISION FINDING OF GUILT DE NOVO SHOULD BE REVERSED AS TO THE DRUNK DRIVING CONVICTION AND A FINDING OF "NOT GUILTY" SHOULD BE ENTERED; THE INTERESTS OF JUSTICE DEMAND INTERVENTION AND CORRECTION AS REASONABLE DOUBT EXISTS BASED ON THE OBSERVATIONAL (NON-PER SE) EVIDENCE ADDUCED AT TRIAL.

We reject each of the points raised and are satisfied the record amply supports the Law Division judge's conclusion that defendant operated his motor vehicle in an erratic manner and failed to safely stop behind the arresting officer's vehicle, thereby establishing reasonable suspicion on the officer's part that defendant committed a motor vehicle offense. In addition, we are equally satisfied defendant's erratic driving and poor performance on field sobriety tests provided substantial credible evidence, beyond a reasonable doubt, that defendant was operating his motor vehicle under the influence. We therefore affirm.

In finding the defendant guilty of DWI, the municipal judge explained that the case "really comes down to credibility[.]" In that regard, the evidence the State presented disclosed that on July 27, 2010, at approximately 3:56 a.m., Officer Joel Muniz, a Clifton police officer, was stopped at a traffic light at a construction zone near the Grove Street entrance to Route 46. Through his rearview mirror, he observed a vehicle travelling at a fairly high rate of speed, in a thirty-five mile per hour speed zone, bearing down upon him. Once the traffic light turned green, Officer Muniz proceeded through the light, and pulled over on the roadway, allowing the vehicle he observed to pass.

Officer Muniz then stopped the vehicle. When he approached the vehicle and asked the driver for his credentials, he immediately detected an odor of alcohol. Defendant told the officer, through slurred speech, that he had just left a local bar. Defendant failed to satisfactorily perform the field sobriety tests administered. While performing the one-legged stand, he counted to three rather than to thirty as instructed and used his arms for balance as opposed to standing at attention as directed. In the heel-to-toe test, defendant flared his arms out, contrary to instructions and did not walk heel to toe as the officer demonstrated prior to defendant performing this test. Finally, Officer Muniz instructed defendant to recite the alphabet from the letter "D" to "Z," but defendant recited the alphabet from "A" to "K" and then stopped.

On appeal, de novo, to the Law Division, Judge Donald Volkert found:

In this case, defendant admitted that he had been drinking beer and shots of hard liquor on the night in question and that he failed three separate sobriety tests. [Officers] Muniz and Miller detected the odor of alcohol on defendant, noted slurred speech, and the odor and appearance of what was believed to be vomit on the defendant's car. Therefore, although the [A]lcotest results were not admitted in this case, the observations of the officers regarding the defendant coupled with the three field sobriety tests and defendant's admission that he consumed alcohol make it clear that defendant's balance, and cognition were [a]ffected by the six alcoholic beverages he consumed, and that he was likewise intoxicated.

In a trial de novo of a municipal court decision, the Law Division judge determines the case completely anew based upon the municipal court record, giving due regard, although not necessarily controlling weight, to the opportunity of the municipal court judge to evaluate the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). The judge in a trial de novo must make his or her own findings of fact based upon the record, limited to the record that was created in the municipal court. State v. Locurto, 157 N.J. 463, 472 (1999).

In our review of the Law Division judge's findings of fact, we are obliged to affirm so long as those findings "could reasonably have been reached upon sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. We should not alter those findings merely because we may have reached a different conclusion. Ibid. Only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then . . . should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid. (internal citations omitted).

Before stopping a motor vehicle, police must have an "articulable and reasonable suspicion that the driver has committed a motor vehicle offense." Locurto, supra, 157 N.J. at 470 (internal citations and quotation marks omitted). Reasonable suspicion is a "lower standard than the probable cause necessary to sustain an arrest." State v. Golotta, 178 N.J. 205, 213 (2003) (internal quotation marks and citations omitted). The "reasonable and articulable suspicion" standard does not require the State to prove that a defendant actually committed a motor vehicle violation; the State need prove only that the officer had a reasonable and articulable suspicion that an offense has been committed. State v. Jones, 326 N.J. Super. 234, 239 (App. Div. 1999).

Officer Muniz, based upon his own experience as a driver for seven years at the time of defendant's arrest, and training as a police officer, estimated that defendant was travelling at an excessive rate of speed. He based his opinion upon his personal observations of the vehicle as it approached. Such lay opinion is competent evidence upon which the court may rely in crediting the officer's testimony. See Pierson, Jr. v. Frederikson, 102 N.J. Super. 156, 161 (App. Div. 1968) (holding that it was permissible for the witness to testify as to the speed of a vehicle based upon his auditory perception of the vehicle). We have been presented with no meritorious basis to question Officer Muniz's credibility, or to reject the Law Division judge's decision to accept the municipal court's determination that Officer Muniz's testimony was credible. See Locurto, supra, 157 N.J. at 474 (observing that an appellate panel is bound by the Law Division judge's findings of fact where those findings are based upon substantial and credible evidence in the record).

Here, Officer Muniz's testimony amply supports the Law Division judge's conclusion that he had a reasonable and articulable suspicion that defendant was committing a motor vehicle violation at the time defendant's vehicle was stopped. Likewise, we discern no basis to disturb the Law Division judge's factual findings that defendant was guilty of DWI based upon Officer's Muniz's observations.

We therefore reject defendant's challenge to the motor vehicle stop and subsequent observations of the arresting officer. We affirm his conviction on the charge of driving while under the influence and the sentence imposed in all respects.