STATEOF NEW JERSEY v. DANIEL Y. KWAK

NOT FOR PUBLICATION WITHOUT THE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-0758-16T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DANIEL Y. KWAK,

     Defendant-Appellant.
____________________________

              Argued January 30, 2018 – Decided February 21, 2018

              Before Judges Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Municipal Appeal
              No. 004-09-16.

              John S. Avery argued the cause for appellant
              (Avery & Avery, attorneys; John S. Avery, on
              the briefs).

              Jenny    Zhang,    Special   Deputy   Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Dennis Calo, Acting
              Bergen County Prosecutor, attorney; Michael R.
              Philips,      Special      Deputy     Attorney
              General/Acting    Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM
     Defendant Daniel Y. Kwak appeals from a September 16, 2016

order of the Law Division finding him guilty of driving while

intoxicated on a de novo review of his conviction from the Fort

Lee municipal court.    We affirm.

     On June 20, 2015, defendant was pulled over while driving

erratically on the George Washington Bridge and charged with

driving   while   intoxicated   (DWI),   
N.J.S.A.   39:4-50;    careless

driving, 
N.J.S.A. 39:4-97; speeding, 
N.J.S.A. 39:4-98; and failure

to signal when making a lane change, 
N.J.S.A. 39:4-126.

     In the Fort Lee municipal court, defendant filed a motion to

suppress evidence based on lack of probable cause for an arrest.

At the suppression hearing, the State presented testimony from

Port Authority Police Officer Juan Guzman.      According to Guzman,

at approximately 6:30 a.m. on June 20, 2015, he observed a black

Acura pass his vehicle.    Guzman sped up and followed the Acura.

Guzman estimated that the Acura was traveling fifty to sixty-five

miles per hour in a forty-five miles-per-hour zone.               Guzman

testified that he saw the Acura move from Lane Three to Lane Five

and back to Lane Three without signaling, and then swerve within

Lane Three. According to Guzman, the erratic driving of the person

in the Acura affected other vehicles on the roadway.

     Guzman activated his police lights and siren.             Using the

police car's public address system, Guzman instructed defendant,

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who was driving the Acura, to pull over in a safe location. Instead

of    pulling   over   as   instructed,    defendant   exited   the    bridge,

stopping his Acura in the middle of the one-lane exit ramp.              Based

on his observation of defendant's erratic driving, Guzman felt it

was unsafe for defendant to drive to another location.

       Guzman approached defendant's car and noticed defendant's

eyes were watery and bloodshot and there was an odor of alcohol.

When defendant produced his driving credentials, Guzman noticed

defendant's hand motions were "very slow."          Defendant told Officer

Guzman he had two beers and a shot of whiskey.                  According to

Guzman, defendant then began to cry and stated that "he could not

afford another DWI."

       Guzman told the municipal judge that he called for Officer

Sama,    who    had   specialized   training   in   field   sobriety    tests.

Arriving at the scene, Sama determined it was unsafe to conduct a

field sobriety test in the area where defendant's car was stopped.

       Because it was unsafe to conduct a field sobriety test on the

exit ramp, Guzman handcuffed defendant and placed him in the police

vehicle. Guzman did not read defendant his Miranda1 rights because

Guzman did not consider defendant to be under arrest.            Guzman took




1
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                       3                               A-0758-16T1
defendant to the Port Authority police station located just a few

minutes away from where defendant's car was stopped.

       Once   inside   the   Port    Authority      police   station,      Guzman

testified that defendant was handcuffed to a bench in the arrest

processing area.        At the station, field sobriety tests were

administered and defendant was read his Miranda rights.

       At the suppression hearing, defendant argued that he was

arrested without probable cause following the motor vehicle stop.

The municipal judge denied defendant's motion to suppress, finding

that   although   Guzman     did    not   have   probable    cause   to    arrest

defendant without conducting field sobriety and alcohol tests, he

did    have    reasonable     suspicion       to    detain    defendant        for

investigation.

       The matter then proceeded to trial in the municipal court.

At trial, the State presented testimony from Port Authority Police

Officers Guzman, Pisciotta, and Sama.              Guzman's testimony during

the municipal court trial was consistent with his testimony during

the suppression hearing.       Sama also testified before the municipal

court.    Sama testified that defendant's face was flushed during

the stop.     Sama corroborated Guzman's statement that defendant was

crying and stated he "could not afford another DWI." Sama observed

defendant's eyes were bloodshot and watery, he was unsteady on his

feet, and he had an odor of alcohol on his breath.                   Sama then

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described the field sobriety tests performed at the police station.

According to Sama, he conducted the walk-and-turn test and the

one-leg stand test and observed defendant swaying and exhibiting

actions that indicated alcohol impairment.                 As a result of the

field   sobriety    tests    and    his    observations,     Sama   opined    that

defendant was under the influence of "intoxicating liquor."

         The municipal judge reviewed the trial testimony and found

that    defendant   had     slow    hand       movements   when   producing    his

credentials.    The municipal judge further found Guzman and Sama

credibly   testified      that     defendant's      eyes   were   bloodshot   and

watery, he was crying, and he had the odor of alcohol on his

person.    The municipal judge declined to consider defendant's

statement to the officers that he could not afford another DWI.

During the field sobriety tests, the municipal judge found that

defendant raised his hands while completing the walk-and-turn test

and defendant raised his hand and put his foot down during the

one-leg stand test, leading Sama to conclude that defendant was

under the influence of alcohol.

       Based on these findings, the municipal judge determined that

defendant was guilty of DWI and careless driving, but not guilty

of failure to signal when making a lane change.2 On the DWI charge,


2
    The State previously dismissed the speeding charge.


                                           5                             A-0758-16T1
the municipal judge sentenced defendant to a two-year license

suspension, forty-eight hours in the Intoxicated Driver Resource

Center (IRDC), thirty days' community service, one year interlock

device, and payment of fines and court costs.                 On the careless

driving charge, defendant was required to pay a fine and court

costs.

     On    April    21,   2016,   defendant    filed    an   appeal   from   his

municipal court conviction in the Superior Court, Law Division.

A trial de novo was conducted by the Law Division judge on

September 16, 2016.

     The de novo trial findings by the Law Division judge were

substantially similar to the findings by the municipal court judge.

The Law Division judge found defendant had an odor of alcoholic

beverage on his person and was unsteady.               Additionally, the Law

Division judge determined defendant was under the influence of

alcohol based on the results of the field sobriety tests.

     The Law Division judge determined there was probable cause

to arrest defendant at the scene of the motor vehicle stop.                  The

finding of probable cause was based on defendant's swerving,

changing    lanes    without      signaling,   and     defendant's    physical

manifestations of intoxication.




                                       6                                A-0758-16T1
     Based on these determinations, the Law Division judge found

defendant guilty of DWI and careless driving.   He imposed the same

sentence as the municipal court judge.

     On appeal to this court, defendant argues the following:

     POINT ONE

          WHETHER BY AN ARREST ACKNOWLEDGED BY THE
          POLICE, BY THE PROSECUTION, OR A DE FACTO
          ARREST BASED ON THE CIRCUMSTANCES, DEFENDANT
          KWAK WAS UNDER ARREST THE MOMENT HE WAS PLACED
          IN HANDCUFFS ON THE ROADWAY.

     POINT TWO

          WERE IT NOT FOR THE ERRONEOUS FINDING OF LAW
          BY THE JUDGE AT THE PROBABLE CAUSE HEARING
          THAT DEFENDANT WAS NOT UNDER ARREST BUT RATHER
          UNDER INVESTIGATION, THE CASE WOULD HAVE BEEN
          DISMISSED FOR A LACK OF PROBABLE CAUSE.

     POINT THREE

          THE LAW DIVISION MISCONSTRUED AND IGNORED
          FACTS LEADING TO ITS FINDING AS TO THE
          EXISTENCE OF PROBABLE CAUSE AT THE TIME OF
          ARREST.

     POINT FOUR

          THE LAW     DIVISION MISCONSTRUE[D] THE LEGAL
          STANDARD   BY WHICH PROBABLE CAUSE IS JUDGED,
          LEADING    IT TO AN ERRONEOUS FINDING THAT
          PROBABLE   CAUSE EXISTED AT THE TIME OF ARREST.

     POINT FIVE

          THE COURT[']S FUNDAMENTAL MISAPPLICATION OF
          LOGIC LED IT TO EVIDENTIAL MISTAKES LEADING
          TO ITS FINDING OF GUILT.



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       In reviewing a judgment of the Law Division on a municipal

appeal, we apply a sufficiency of the evidence standard.                  See

State v. Ugrovics, 
410 N.J. Super. 482, 487—88 (App. Div. 2009).

We must "determine whether the findings made could reasonably have

been   reached   on    sufficient   credible   evidence    present   in   the

record."    State v. Johnson, 
42 N.J. 146, 162 (1964).           "When the

reviewing court is satisfied that the findings and result meet

this criterion, its task is complete and it should not disturb the

result . . . ."       Ibid.

       Superior Court review of a municipal court conviction is

conducted de novo on the record.          R. 3:23-8.    The Superior Court

should defer to the municipal court's credibility findings.            State

v. Locurto, 
157 N.J. 463, 470-71 (1999)(citing Johnson, 
42 N.J.

at 161-62).   However, the municipal court's "interpretation of the

law and the legal consequences that flow from established facts

are not entitled to any special deference."            Manalapan Realty, LP

v. Twp. Comm., 
140 N.J. 366, 378 (1995).          Thus, "[o]n a de novo

review on the record, the reviewing court . . . is obliged to make

independent findings of fact and conclusions of law, determining

defendant's guilt independently but for deference to the municipal

court's credibility findings."        Pressler & Verniero, Current N.J.

Court Rules, cmt. 1.1 on R. 3:23-8 (2018).



                                      8                              A-0758-16T1
        Defendant contends that he was placed under arrest at the

scene of the motor vehicle stop.             The State does not dispute that

defendant was arrested at the scene of the motor vehicle stop.

Importantly, the Law Division judge held that "Officer Guzman had

probable cause to arrest defendant for DWI at the time of the

motor vehicle stop."          Because it is undisputed that defendant was

arrested at the scene of the motor vehicle stop, we need not

address defendant's arguments on this issue.

     Defendant         asserts   that   since   the   municipal    court      judge

concluded there was no probable cause to arrest defendant at the

scene    of     the   motor   vehicle   stop,   the   case    should   have    been

dismissed for lack of probable cause.             On appeal, defendant asks

that we review the municipal court's judge's ruling on the motion

to suppress.           However, we do not consider the actions of the

municipal court judge in reviewing defendant's DWI conviction,

only the Law Division judge's determinations.                State v. Palma, 
219 N.J. 584, 591-92 (2014) (citing State v. Joas, 
34 N.J. 179, 184

(1961)).        Thus, defendant's argument that the municipal court

judge erred in his probable cause determination is not properly

before this court.

     "A violation of [the DWI statute] may be proven 'through

either     of    two    alternative     evidential    methods:     proof      of   a

defendant's physical condition or proof of a defendant's blood

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alcohol level.'" State v. Howard, 
383 N.J. Super. 538, 548 (App.

Div. 2006) (quoting State v. Kashi, 
360 N.J. Super. 538, 545 (App.

Div. 2003), aff'd, 
180 N.J. 45 (2004)).     To make an arrest for

DWI, the arresting officer need only have "'reasonable grounds to

believe' that the driver was operating a motor vehicle in violation

[of N.J.S.A. 39:4-50]."   State v. Moskal, 
246 N.J. Super. 12, 21

(App. Div. 1991) (alteration in original) (quoting Strelecki v.

Coan, 
97 N.J. Super. 279, 284 (App. Div. 1967)).        Reasonable

grounds can be based solely on the officer's observations.       See

State v. Liberatore, 
293 N.J. Super. 580, 589 (Law Div. 1995)

(holding that "observational evidence" may be sufficient to prove

"a defendant guilty beyond a reasonable doubt of DWI"), aff'd, 
293 N.J. Super. 535 (App. Div. 1996); Moskal, 
246 N.J. Super. at 20-

21 (holding that defendant's flushed face, "drooping and red"

eyes, admission of drinking, and the strong odor of alcohol

established probable cause for arrest).

     Recognizing that "sobriety and intoxication are matters of

common observation and knowledge, New Jersey has permitted the use

of lay opinion testimony to establish alcohol intoxication." State

v. Bealor, 
187 N.J. 574, 585 (2006).       Moreover, it is well-

established that a police officer's subjective observation of a

defendant is a sufficient ground to sustain a DWI conviction.    See

State v. Cryan, 
363 N.J. Super. 442, 455-56 (App. Div. 2003).

                               10                           A-0758-16T1
      Defendant cites State v. Bernokeits, 
423 N.J. Super. 365

(App. Div. 2011) and State v. Jones, 
326 N.J. Super. 234 (App.

Div. 1999) for the proposition that probable cause cannot be based

only on the odor of alcohol and defendant's admission to consuming

alcohol before driving.

      Having reviewed the record before the Law Division judge, we

find that the probable cause determination and finding of guilt

were based on more than defendant's admission and the odor of

alcohol.    The determinations by the Law Division judge were based

on   Officer    Guzman's    testimony    citing   behaviors   evidencing

defendant's intoxication, including unsteadiness, watery eyes, and

excessive slowness in producing his driving information.                  We

conclude that the probable cause determination and subsequent DWI

conviction     properly    considered   the   officer's   observation     of

defendant's driving, including the switching of lanes without

signaling, swerving his car, and stopping his car in the middle

of the road.    Defendant's conviction was also based on the results

of   the   field   sobriety   tests.     Given    the   totality   of   the

circumstances, we concur with the Law Division judge that there

was probable cause to arrest defendant for DWI at the time of the

motor vehicle stop and that the State met its burden of proving

beyond a reasonable doubt that defendant was guilty of DWI.

      Affirmed.

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