STATE OF NEW JERSEY v. JOSEPH BURNS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0875-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH BURNS,

Defendant-Appellant.

________________________________

July 30, 2015

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 14-025-G.

Dennis S. Cleary, attorney for appellant.

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Joseph Burns appeals from the Law Division's September 18, 2014 order finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50,1 after a trial de novo on the record. As a second-time DWI offender, defendant was sentenced to thirty days of community service, two years of license suspension, forty-eight hours in an Intoxicated Driver Resource Center, and an interlock device was placed on his vehicle for one year following the drivers license suspension. He was also sentenced to various mandatory fines and penalties. We affirm substantially on the basis of the concise and thorough written opinion of Judge Robert J. Gilson.

The record of the municipal court trial revealed the following facts. New Jersey State Trooper Allison Pavlosky observed a silver 2008 Honda Accord make a partial lane change into an exit lane, then abruptly return to the right lane. The trooper followed the Honda as it took the next exit. She ran the license plate through her mobile data terminal, which revealed that the car's registration was expired. She stopped the car at 9:28 p.m. As Pavlosky spoke to defendant, she smelled the odor of alcohol emanating from the car, and defendant's speech and hand movements appeared somewhat slow. Defendant provided his license, but was unable to provide an insurance card or registration. He said he had consumed three beers.

Suspecting that defendant was under the influence of alcohol, the trooper asked him to complete field sobriety tests. Defendant asked to remove his flip-flops and move to a level area. Defendant failed the horizontal gaze nystagmus test.2 Defendant then failed the walk-and-turn test by falling out of the starting position, failing to touch heel to toe on one of the steps, ending on the wrong foot, and doing an improper turn. He then failed the one-leg-stand test because he had to be reminded several times to look at his toe, and could not keep his foot six inches off the ground.

Pavlosky then placed defendant under arrest and he was transported by a second trooper to the nearby State Police barracks. After being administered his Miranda3 rights, defendant indicated he had consumed four bottles of Coors Light during the day at the Monmouth Racetrack. He claimed the only medication he was taking was Xanax for anxiety, which he had taken the previous day at noon.

At trial, defendant testified that he drank only three beers at the racetrack, consuming the last at 7:00 p.m. He also ate food and drank other, non-alcoholic, drinks. He was going to take one exit and then changed his mind and took the next exit. Defendant testified that a second trooper, who administered the breathalyzer test, left the room during the twenty-minute observation period prior to administering the test. Defendant testified that he was six feet two inches tall, weighed 250 pounds and suffered from gastritis, the symptoms of which were "chest pains, heartburn, gas [and] belching[.]"

Defendant offered the testimony of the custodian of the medical records at Hackettstown Regional Medical Center, to lay the foundation for the admission into evidence of these records to support his claim that he suffers from gastritis. The municipal court judge did not allow the medical records into evidence.4

On appeal, defendant raises the following issues

POINT I: THE VERDICT OF GUILTY OF DRIVING WHILE UNDER THE INFLUENCE WAS NOT SUPPORTED BY EVIDENCE BEYOND A REASONABLE DOUBT.

POINT II: THE TRIAL COURT SHOULD HAVE ADMITTED THE MEDICAL RECORDS OF JOSEPH BURNS INTO EVIDENCE AS AN EXCEPTION TO THE RULE AGAINST HEARSAY PURSUANT TO N.J.R.E. 803(C).

Our review is "limited to determining whether the Law Division's de novo [1025] findings 'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)), aff'd, 219 N.J. 584 (2014).

Appellate courts should 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. . . . [T]he rule of deference is more compelling where . . . two lower [241] courts have entered concurrent judgments on purely factual issues. 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.

[State v. Locurto, 157 N.J. 463, 474 (1999) (citations omitted).]

In order to set aside the factual findings made by the trial court, we must be

'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, [the appellate court] should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways--from manifest lack of inherently credible evidence to support the finding, obvious overlooking or undervaluation of crucial evidence, a clearly unjust result, and many others.'

[Id. at 471 (quoting Johnson, supra, 42 N.J. at 162).]

N.J.S.A. 39:4-50 does not require the use of breathalyzer or Alcotest results to support a conviction. Johnson, supra, 42 N.J. at 161. A conviction for DWI may be based solely on the arresting officer's observations of the defendant's apparent intoxication. State v. Kent, 391 N.J. Super. 352, 384 (App. Div. 2007) (citation omitted); N.J.S.A. 39:4-50. Judge Gilson accepted the municipal judge's credibility findings and found Trooper Pavlosky to be completely credible concerning her observations. She did not exaggerate or amplify in any way. She also had significant experience and training concerning drunk driving. Although the observational evidence was not extremely strong, it is of no consequence that the reviewing court suspects that it might have reached a different result, or that all testimonial or evidentiary issues were resolved in favor of one side. Johnson, supra, 42 N.J. at 162. Judge Gilson thoroughly reviewed the evidence and the legal issues, including the admissibility of the medical records,5 raised by the defense. He based his decision only on the observational evidence adduced at trial. We rely on Judge Gilson's sound reasoning as expressed in his September 18, 2014 opinion.

Affirmed.

1 Defendant was also convicted in municipal court of failure to show insurance card, N.J.S.A. 39:3-29, and driving an unregistered vehicle, N.J.S.A. 39:3-4, but did not appeal from these convictions.

2 This failure was not considered by the Law Division. See State v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000).

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 The municipal judge also excluded the results of the blood alcohol test, reflecting a .16 reading, because the testimony did not satisfy the judge that the twenty-minute observation period had been properly conducted. See State v. Chun, 194 N.J. 54, 79, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); see also State v. Ugrovics, 410 N.J. Super. 482, 484-485 (App. Div. 2010), certif. denied, 202 N.J. 346 (2010).

5 We note that defendant argues in a general way that the medical records would have substantiated defendant's testimony as to his height, weight and gastritis, but points to no particular medical document that would have been relevant to an issue at trial, given the exclusion of the breathalyzer results. Defendant's height and weight were recorded by the police.