STATE OF NEW JERSEY v. ERIC SEPKOWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC SEPKOWSKI,

Defendant-Appellant.

_________________________________________

November 29, 2016

Submitted November 2, 2016 Decided

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 6087.

Sodette K-M Plunkett, P.C., attorneys for appellant (Renee LaRosee, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Leonard Victor Jones, SpecialDeputy AttorneyGeneral/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Eric Sepkowski appeals from a conviction after a trial de novo in the Law Division for driving while intoxicated (DUI), N.J.S.A. 39:4-50; and refusal to submit to a chemical test, in violation of N.J.S.A. 39:4-50.4a. We affirm.

Defendant was originally charged with operating a motor vehicle while intoxicated, in violation of N.J.S.A. 39:4-50; reckless driving, in violation of N.J.S.A. 39:4-96; speeding, in violation of N.J.S.A. 39:4-98; driving without a seatbelt, in violation of N.J.S.A. 39:3-76.2(j); refusal to submit to a chemical test, in violation of N.J.S.A. 39:4-50.4a; and failure to produce insurance and registration, in violation of N.J.S.A. 39:3-39.

On September 24, 2013 and October 2, 2013, a trial was conducted before a municipal court judge. The judge dismissed the failure to produce proof of insurance and registration charges and found defendant not guilty of both reckless driving and driving without a seatbelt. The judge found defendant guilty of DUI, refusal to submit to a chemical test, and speeding.

Defendant was assessed the appropriate fines and fees for the speeding ticket. As this was defendant's second DUI offense, in addition to the applicable fines and fees, defendant was sentenced a two-year loss of license, forty-eight hours in the Intoxicated Drivers Resource Center (IDRC), one-year ignition interlock installation, two days in the Sheriff Labor Assistance Program, and thirty days' community service. On the refusal conviction, defendant was sentenced to a two-year loss of license to run consecutively with the DUI for a total of a four-year loss of license. The applicable fines and fees were imposed.

Defendant appealed to the Law Division. A de novo hearing was held before Judge Regina Caulfield. In a twenty-five-page written opinion, Judge Caulfield found defendant not guilty of driving in excess of the speed limit, guilty of DUI, guilty of refusing to submit to a chemical test, and resentenced defendant consistent with her findings and statutory provisions.

Defendant raises the following arguments on appeal

POINT I

THE TRIAL JUDGE ERRED IN DENYING APPELLANT'S MOTION TO DISMISS BASED ON STATE V. CAHILL, AS HE DID NOT RECEIVE A TRIAL WITHIN [SIXTY] DAYS.

POINT II

THE TRIAL JUDGE ABUSED HIS DISCRETION BY DISALLOWING APPELLANT AN ADJOURNMENT IN ORDER TO PROCURE EXPERT WITNESSES, WHICH UNFAIRLY PREJUDICED APPELLANT.

POINT III

THE TRIAL JUDGE ERRED IN FINDING APPELLANT GUILTY, AS THE PROSECUTION DID NOT PROVE BEYOND A REASONABLE DOUBT, THAT APPELLANT WAS DRIVING WHILE INTOXICATED.

In an appeal from a de novo hearing on the record, we consider only the action of the Law Division and not that of the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001).1 Our standard of review of a Law Division judge's decision is limited to determining only whether the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record. State v. Locurto, 157 N.J. 463, 472 (1999) (citing State v. Barone, 147 N.J. 599, 615 (1998)); State v. Johnson, 42 N.J. 146, 162 (1964). Additionally, we accord great deference to the consistent conclusions of two other courts, State v. Stas, 212 N.J. 37, 49 n.2 (2012), and "[u]nder the two-court rule, [we] 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." Ibid. (citing Locurto, supra, 157 N.J. at 474; State v. Oliver, 320 N.J. Super. 405, 421 (App. Div.), certif. denied, 161 N.J. 332 (1999)).

A Law Division judge in a trial de novo must "make [their] own findings of fact" based upon the record made in the municipal court. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). Their function "is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function . . . ." Ibid. (citations omitted).

In light of the record and in accord with our standard of review, we affirm for the reasons stated in the comprehensive, well-reasoned opinion of Judge Caulfield.

Affirmed.

1 In defendant's first two arguments he addressed error relating to the decisions of the municipal court judge.