STATE OF NEW JERSEY v. CARYN BRZOZOWSKI

NOT FOR PUBLICATION WITHOUT THE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.

CARYN BRZOZOWSKI,

Defendant-Appellant.

______________________________________

November 24, 2015

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-01-13.

Marc A. Calello argued the cause for appellant (Marc A. Calello, attorney; Mr. Calello and Carole Lynn Nowicki, on the brief).

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).

PER CURIAM
 

Defendant Caryn Brzozowski appeals from an April 30, 2014 decision of the Law Division finding her guilty of careless driving, N.J.S.A. 39:4-97, and driving while intoxicated (DWI), N.J.S.A., 39:4-50. Defendant was sentenced to 180 days in jail, a ten-year license suspension, followed by three years with an ignition interlock device, and $1453 in fines, costs, and fees. Following our review of the arguments advanced on appeal and in light of the record and applicable law, we affirm.

I.

The record discloses the following facts adduced from the record developed in the municipal court. On October 31, 2012, just days after Hurricane Sandy disrupted services throughout New Jersey, Officer McBain of the HoHoKus Police Department (HHKPD) saw defendant's vehicle stopped on a Route 17 entrance ramp with its four way indicator lights flashing. Due to hurricane damage, Route 17 was "pitch black" and scattered with tree limbs.

Upon approaching the vehicle, McBain saw defendant crying and smelled alcohol on defendant's breath. Defendant explained that she had an argument with her boyfriend, which culminated in her boyfriend's abrupt exit from her moving vehicle. This was confirmed by her boyfriend, who shortly thereafter approached the officer and was placed in a patrol car for safety reasons.

McBain told defendant to move her vehicle to a safer location down the road, and she complied. Shortly thereafter, Officer Mosca of the HHKPD arrived at the scene as backup. Mosca also smelled alcohol on defendant's breath, and defendant admitted to having consumed three glasses of sangria prior to driving. Because of the storm damage, the officers determined it was too dangerous to conduct a field sobriety test on the road, so they transported defendant to the police station in a squad car.

At the station, defendant failed both the walk-and-turn test and the one-legged stand test. The officers observed that defendant had bloodshot watery eyes, slurred her speech, and was sometimes incoherent. Two breath tests were administered, which returned a blood alcohol content (BAC) of .162 and .165. Defendant was thereafter charged with careless driving and DWI.

Trial was held in the Ho-Ho-Kus municipal court on September 11, 2013. Dr. Lance Gooberman testified on behalf of defendant that the alcohol on defendant's breath and the high BAC reading resulting from her breath test were both caused by gastroesophageal reflux disease (GERD). Officers McBain and Mosca also testified. In its findings, the municipal court found the officers' testimony to be "100% credible" and "truthful." However, the court found Dr. Gooberman's testimony incredible. At the end of trial, defendant was convicted of both counts and sentenced to 180 days in jail, a ten-year license suspension followed by three years with an ignition interlock device, and $1453 in fines, costs, and fees. The jail sentence and fines were stayed pending appeal to the Law Division.

On March 4, 2014, a de novo trial was held before Judge Jerejian in the Law Division. On April 30, 2014, the judge suppressed the results of the two breath tests, but found defendant guilty of DWI and careless driving based on the other evidence adduced at trial. By order dated May 13, 2014, the Law Division continued the municipal court's stay pending this appeal.

On appeal, defendant presents the following points for our consideration

POINT I

THE LAW DIVISION'S FINDINGS WERE MISTAKEN, WARRANTING A REVERSAL OF THE CONVICTION.

POINT II

THE CONVICTION SHOULD BE REVERSED BECAUSE MS. BRZOZOWSKI WAS ARRESTED WITHOUT PROBABLE CAUSE.

POINT III

THE EVIDENCE PRESENTED AT TRIAL DID NOT SUPPORT MS. BRZOZOWSKI'S CONVICTION BEYOND A REASONABLE DOUBT.

A. Observations of Officers on the Scene Do Not Support a Finding that Defendant was Intoxicated.

B. Ms. Brzozowski's Conduct at the Police Station Did Not Demonstrate Sufficient Evidence of Intoxication, and was Impacted by her Emotional State.

C. The Trial Court's Findings are Inconsistent With, and Insufficient Based Upon, Factors Considered by Other Courts.

II.

The procedures for appealing a DWI conviction are well established. "If a municipal court convicts a defendant of DWI, the defendant must first appeal to the Law Division." State v. Kuropchak, 221 N.J. 368, 382 (2015). "The Law Division reviews the municipal court's decision de novo." Ibid. However, due to the municipal court's unique opportunity to judge live testimony, deference is given to credibility findings of the municipal court. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)).

When an appeal is taken from the Law Division's final decision, our appellate 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). "'This involves consideration of the proofs as a whole,' and not merely those offered by the defendant. 'Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result.'" Kuropchak, supra, 221 N.J. at 383 (citations omitted). Like the Law Division, we defer to credibility findings made by the trial court. Id. at 382.

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").

III.

A conviction for DWI requires proof beyond a reasonable doubt. See Kuropchak, supra, 221 N.J. at 382. In its de novo review, the Law Division examined the totality of the credible evidence adduced at trial, including the fact that defendant parked her car in the middle of a major highway on-ramp; a strong odor of alcohol was detected by the officers on her breath; she admitted to having drunk three alcoholic beverages prior to driving; she had difficulty removing her boots at the police station and had to brace herself against a wall; she was crying, hoarse, slurring her speech and was at times incoherent; she failed the walk-and-turn test and stated she could not do it; and she failed the one-legged stand test by failing to follow instructions and continually putting her heel down for balance. From this evidence, the Law Division found defendant guilty of DWI beyond a reasonable doubt.

We are convinced that the record supports the Law Division Judge's determination. It is well-established that an officer's subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. See, e.g., 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 defendant's operation of a motor vehicle without its headlights on and the officer's detection of an alcoholic odor on 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 observations of defendant's watery eyes, slurred and slow speech, staggering, inability to perform field tests, and admission to drinking alcohol earlier in the day). Here, there is ample evidence, based on the concurring observations of two officers, that defendant is guilty of DWI beyond a reasonable doubt.

IV.

Finally, defendant argues that the Law Division judge incorrectly held that transporting defendant to the police station for sobriety testing did not constitute an illegal arrest. We disagree.

"Simply stated, an investigative stop becomes a de facto arrest when 'the officers' conduct is more intrusive than necessary for an investigative stop.'" State v. Dickey, 152 N.J. 468, 478 (1998) (quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir. 1985)). That determination is fact-intensive and depends on the circumstances surrounding the police action. See State v. Bell, 89 N.J. Super. 437, 443 (App. Div. 1965).

As the Law Division judge pointed out, the exigencies presented by the aftermath of Hurricane Sandy created a unique set of circumstances in this case. In light of these unique circumstances, we agree with the Law Division's conclusion that the officers' decision to conduct sobriety testing at the station was justified by a concern for safety. See Florida v. Royer, 460 U.S. 491, 504, 103 S. Ct. 1319, 1328, 75 L. Ed. 2d 229, 241 (1983) ("[T]here are undoubtedly reasons of safety and security that would justify moving a suspect from one location to another during an investigatory detention . . . ."). We, therefore, agree that in this case merely transporting defendant to the police station did not escalate defendant's lawful investigative stop to the level of an unlawful arrest.

We discern no reason to disturb the Law Division's determination that defendant is guilty of DWI and careless driving beyond a reasonable doubt. We hereby vacate the stay imposed by the municipal court and Law Division.

Affirmed.