STATE OF NEW JERSEY v. WILLIAM S. DICKINSON

NOT FOR PUBLICATION WITHOUT THE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.

WILLIAM S. DICKINSON,

Defendant-Appellant.

____________________________________

August 26, 2016

Submitted May 9, 2016 Decided

Before Judges Lihotz and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 004-13-14.

Brickfield & Donahue, attorneys for appellant (Joseph R. Donahue, on the brief).

Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Anthony C. Talarico,Special DeputyAttorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William S. Dickinson appeals from a January 23, 2015 Law Division order entered following a trial de novo, finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, fining him $1006, imposing a 180-day county jail term, suspending his driver's license for ten years, requiring him to install an interlock on his vehicle for twelve years, and ordering him to pay costs and assessments. He raises three points

POINT ONE.

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION FOR DRIVING WHILE INTOXICATED.

POINT TWO.

THE COURT ERRED IN SENTENCING APPELLANT AS IF HE HAD THREE PRIOR CONVICTIONS FOR DRIVING WHILE INTOXICATED.

POINT THREE.

APPELLANT'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN ENTERING INTO THE STIPULATION WHICH STIPULATED TO THE ACCIDENT AND THE TIME OF OPERATION OF THE MOTOR VEHICLE.

For the reasons that follow, we affirm.

Following a single vehicle accident on May 20, 2013, Edgewater Borough police charged defendant with possessing fifty grams or less of marijuana, N.J.S.A. 2C:35-10(a)(4); possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1; driving while intoxicated, N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; and leaving the scene of an accident, N.J.S.A. 39:4-129(b). Ten months later, on March 27, 2014, defendant pled guilty in municipal court to possessing fifty grams or less of marijuana and leaving the scene of an accident, and the State dismissed the charges of possession of a controlled dangerous substance in a motor vehicle and careless driving.1 Following the pleas, the parties tried the DWI charge.

When the trial began, the parties entered the following stipulation

On Monday, May 20th, 2013, at approximately 8:30 p.m. the defendant, William Dickinson, was operating a motor vehicle (a four door Buick Sedan) which he owned, westbound on Route 5 (uphill) in the Borough of Edgewater. At that time, the defendant was involved in a motor vehicle accident in which he struck a guardrail on the westbound side of Route 5.

After entering the stipulation, the State presented the testimony of two law enforcement officers: Borough of Edgewater Patrolman James Dalton and Borough of Cliffside Park Patrolman Teddy Tarabokija.

On May 20, 2013, at approximately 8:30 p.m., Patrolman Dalton responded to a call and drove to a location on Route 5, where he came upon defendant's abandoned Buick. The car had crashed into a guardrail, sustaining heavy front-end damage. It remained partially off the roadway. After retrieving the registration and insurance card and obtaining defendant's name and address, Patrolman Dalton contacted headquarters and instructed personnel to contact the Cliffside Park Police Department to attempt to locate defendant. A short time later, at approximately 8:49 p.m., Patrolman Dalton received a call and was informed a Cliffside Park police officer was at defendant's residence with defendant. He drove to defendant's residence and arrived "a couple of minutes" later. Cliffside Park Patrolman Tarabokija was waiting with defendant, who was leaning against a taxi.

Patrolman Dalton learned defendant had complained of back pain and that Patrolman Tarabokija had called for an ambulance. Patrolman Dalton began to speak to defendant. He noticed defendant's eyes were bloodshot and watery. Defendant said someone had cut him off and he had crashed into a guardrail. After crashing, he walked to Cliffside, got a taxi, and took it home. He intended to notify police and seek medical attention once he arrived home. When asked where he had been before the crash and if he had been drinking, defendant responded he had been at a bar and restaurant, where he consumed two beers and two glasses of wine. Patrolman Dalton observed his speech was slurred and an odor of alcohol was emanating from defendant's breath.

Because defendant had complained of back pain, Patrolman Dalton administered only one field sobriety test: he requested defendant stand up straight with his feet together and arms at his side, lean his head back, close his eyes, and count to thirty. While doing so, defendant began to sway from side to side. After approximately 20 seconds, defendant fell onto the side of the cab, at which time Patrolman Dalton grabbed him to prevent him from falling to the ground. The patrolman arrested defendant for DWI, and accompanied defendant to the hospital in an ambulance.

Once in the ambulance, the patrolman could see not only that defendant's eyes were bloodshot and watery, but also defendant's face was flushed. The odor of alcohol was "more significant." During the ride to the hospital, defendant repeatedly called the patrolman "sports fan." Defendant also rambled on about government conspiracies and said he had done time in three different states, during three different decades, in three different prisons.

Patrolman Dalton had extensive experience observing intoxicated individuals. He had made approximately 100 DWI arrests; had encountered hundreds, if not thousands of intoxicated individuals over the years; and encountered thousands more during social occasions, his previous job as a care technician in a hospital emergency room, and his ten-year experience as an EMT. During his tenure as a police officer, he had also received formal training in identifying intoxicated people. Based on his training and experience, and his observations and interaction with defendant, Patrolman Dalton opined defendant was "impaired, due to alcohol, intoxicated to the point of impairment."

Defendant presented no evidence. Based on the stipulation and the State's proofs, the municipal court judge found defendant guilty and sentenced him. Defendant filed a demand for trial de novo.

Defendant argued three points in the Law Division: first, the evidence was insufficient to prove him guilty beyond a reasonable doubt; second, municipal court trial counsel was ineffective for entering into the stipulation; and third, he should not be sentenced as a fourth offender. The court rejected the first and third arguments, and determined the second should be addressed in a petition for post-conviction relief. Defendant filed this appeal.

Defendant first contends the State's evidence was insufficient to prove his guilt beyond a reasonable doubt. He argues the arresting officer did not see him operating his car, his performance on the field sobriety test could be explained by injuries he sustained in the accident, and there was evidence suggesting he was not impaired. We are unpersuaded.

When a defendant appeals a Law Division conviction of violating a motor vehicle law, the scope of our review is both narrow and deferential. State v. Stas, 212 N.J. 37, 48-49 (2012). Our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present before the record." State v. Johnson, 42 N.J. 146, 162 (1964). When we conclude the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Ibid. We "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." State v. Locurto, 157 N.J. 463, 474 (1999). "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." Ibid.

An arresting officer's field observations of a defendant's appearance, behavior, breath, and speech may sustain a defendant's DWI conviction. See State v. Kent, 391 N.J. Super. 352, 383-84 (App. Div. 2007). Such is true of Patrolman Dalton's observations of defendant in the case before us. Although the officer did not see defendant driving, defendant admitted to drinking beer and wine before he crashed. Patrolman Dalton made his observations of defendant less than an hour after the collision, and defendant stipulated to his operation of his Buick. Considering these facts, the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. The record is devoid of "a very obvious and exceptional showing of error" requiring reversal. Locurto, supra, 157 N.J. at 474.

Defendant's second argument the court erred in sentencing him as if he had three prior convictions for driving while intoxicated is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We decline to address defendant's third argument alleging his municipal court trial counsel was ineffective. Claims attacking counsel's assistance "are particularly suited for post-conviction relief because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Ibid. Defendant may pursue his ineffective-assistance claim in a petition for post-conviction relief.

Affirmed.

1 Neither the pleas nor the sentences for these charges have been appealed.