STATE OF NEW JERSEY v. PAMELA M. TARGAN

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0689-17T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

PAMELA M. TARGAN,

     Defendant-Appellant.
__________________________

                    Submitted November 27, 2018 – Decided January 3, 2019

                    Before Judges Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Municipal Appeal No. 0001-
                    17.

                    Levin Pisetzner Levin, attorneys for appellant (Joseph
                    A. Levin, on the brief).

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (Melinda A. Harrigan, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Pamela M. Targan appeals from the Law Division's order

entered after a de novo trial on the record. The Law Division found defendant

guilty of driving while intoxicated (DWI) in violation of  N.J.S.A. 39:4-50. After

reviewing defendant's contentions in light of the record and applicable principles

of law, we affirm.

      On January 5, 2016, defendant was issued complaint summonses for DWI;

reckless driving,  N.J.S.A. 39:4-96; refusal to provide a breath sample,  N.J.S.A.

39:4-50.2; and obstructing the flow of traffic,  N.J.S.A. 39:4-67. Following a

multi-day trial in municipal court, the judge found defendant guilty of DWI but

not guilty of reckless driving and refusal to provide a breath sample. The record

does not reflect the disposition of the obstructing the flow of traffic charge. The

municipal court judge imposed the minimum-mandatory sentence and granted a

stay of the sentence pending an appeal to the Law Division.

      Defendant appealed to the Law Division where Judge Jeffrey J. Waldman

conducted a trial de novo on the record. In his review, the Law Division judge

examined the totality of the evidence and found:

                   On January 5, 2016, patrolman Alex Kuhns, of
            the Linwood police department was on routine patrol.
            Officer Kuhns arrived at a stopped vehicle with no
            lights, and partially in the intersection from Haines
            Avenue into Shore Road. Officer Kuhn[s's] attention
            was directed to the vehicle because of the potential

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safety hazard. [Officer Kuhns] pulled his vehicle next
to the stopped vehicle and asked [defendant] if she was
having car trouble. Defendant responded in the
affirmative. As [Officer Kuhns] pulled up behind her
vehicle, [defendant] exited her vehicle and walked back
towards Officer Kuhns.

      As [d]efendant walked, Officer Kuhns noticed a
possible limp and upon close contact, an odor of alcohol
emanating from [d]efendant's breath. In addition,
Officer Kuhns noticed [defendant's] slurred speech in
response to his questions about her vehicle. Officer
Kuhns did not check off the "slurred speech" box on the
Drinking and Driving questionnaire.          Defendant
appeared to understand Officer Kuhn[s's] initial
questions and provided an appropriate response.
Officer Kuhns noted that her eyes were watery and
bloodshot.

       Next, Officer Kuhns asked [d]efendant for her
driver's license. [Defendant] struggled to get her purse
out [because] the car door . . . kept shutting on her.
Officer Kuhns assisted [defendant] by holding the door
open. Defendant handed [Officer Kuhns] her credit
cards. Again, he asked for her driver's license. While
[d]efendant had her purse open, Officer Kuhns
observed two New Jersey driver's licenses and pointed
them out to [d]efendant. Defendant then handed
Officer Kuhns both licenses, one that had expired in
2015 and one current. As Officer Kuhns interacted with
[d]efendant, he confirmed an odor of alcohol and the
slurring of her words.          This[,] combined with
[d]efendant's difficulty in providing her driver's license
and struggling to get to her feet, led Officer Kuhns to
believe [defendant] may be under the influence.

      At this point, Officer Kuhns called dispatch on
his radio for backup so he could conduct field sobriety

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testing. Officer Kuhns asked [d]efendant if she had any
physical ailments or injuries that would prevent her
from completing the tests, to which, [d]efendant
responded "no." She then asked, "Why are you doing
this to me? I can't, this isn't going to be in the paper."
Nevertheless, [d]efendant agreed to submit to the tests.

      ....

       The next and final test that Officer Kuhns
administered was the single leg stand. Officer Kuhns
asked [defendant] if she had any physical injuries or
infirmities that would prevent her from successfully
performing the test, to which she again responded "no."
Officer Kuhns demonstrated how to perform the test;
however, [d]efendant started to perform the test while
he was still giving the instructions. This required
Officer Kuhns to stop her and reiterate the instructions.
During the instructional phase, [defendant] began
performing the test, notwithstanding [Officer Kuhns's]
direction to stay in the starting position. Defendant did
not comply with the directions as she did not have the
proper starting positions for the test; her feet were too
wide in order to maintain her balance. Defendant was
given four attempts to complete the test, but was unable
to do so because she lost her balance to such a degree
that Officer Kuhns was concerned that she would injure
herself. At that point, Officer Kuhns terminated the test
for safety reasons. Officer Kuhns testified that he had
probable cause to believe [defendant] was under the
influence of alcohol based on his observations, and
placed her under arrest.

      At the Linwood police station, [defendant] was
extremely upset and crying. At one point, she was so
agitated and upset that she slammed her hands down on
the desk and swiped at Officer Kuhns. This behavior


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continued until her husband arrived. Defendant agreed
to submit to breath testing.

      ....

      Sufficient evidence exist[s] to find [defendant]
guilty beyond a reasonable doubt of Driving While
Intoxicated. The court supports the municipal court's
assessment of Officer Kuhns['s] testimony as credible.

      Here, Officer Kuhns testified [defendant's]
vehicle was protruding into the intersection from
Haines Avenue into Shore Road. Because the vehicle
was partially in the intersection with all the lights off,
Officer Kuhns assumed [d]efendant's vehicle was
disabled, which created a hazard and drew his attention.
When [defendant] exited her vehicle and met Officer
Kuhns, he noticed that she had a possible limp. Further,
Officer Kuhns could smell the odor of alcohol
emanating from defendant as she spoke to him.
Additionally, Officer Kuhns noticed her slurred speech
with her response to his questions. Officer Kuhns
noticed her eyes were watery and bloodshot. When
Officer Kuhns asked [defendant] for her driver's
license, [d]efendant struggled as the door kept shutting
on her. Officer Kuhns held the back door open as she
struggled to retrieve the driver's license from her purse.
Defendant opened her purse and gave Officer Kuhns
her credit cards first. Next, Officer Kuhns pointed to
her two New Jersey driver's licenses so that she
wouldn't have difficulty retrieving them.

       While Officer Kuhns waited for backup, he asked
[d]efendant is she had any physical ailments or injuries
that would prevent her from completing a series of field
sobriety tests. Defendant did not object to performing
the field sobriety tests, despite her physical ailments.


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                            5
      ....

      The next field sobriety test given was the single
leg stand. [Defendant was again] asked if there were
any physical injuries or infirmities that would prevent
her from successfully performing the test. Defendant
responded in the negative. There was nothing alerting
Officer Kuhns that because of [d]efendant's age, she
could not conduct the sobriety test. When Officer
Kuhns gave instructions for the one leg test,
[d]efendant started performing the test. When asked to
stay in the starting position with her hands and feet
down by her sides, she had a wide stance. Defendant
indicated that she understood the verbal instructions
given for the test by replying "yes."

       When [d]efendant began the test prematurely,
Officer Kuhns stopped her to explain that he needed to
finish the instructions so that she understood.
[Defendant] indicated that she did understand.
Defendant did not perform the test as instructed.
Defendant started the test early, did not count out loud
and lost her balance to the point of concern for injury.
Officer Kuhns stopped the test for safety reasons and so
that the field sobriety tests could be completed.
Defendant was given instructions for the test again so
that she could complete it properly. The test was
stopped and directions were repeated for a total of four
times. Defendant was unable to successfully complete
the test. [Defendant] was given only two field sobriety
tests as Officer Kuhns was concerned that defendant
would injure herself. Officer Kuhns determined that
[d]efendant was intoxicated based on the totality of the
circumstances and she was placed under arrest.

      According to the Drinking and Driving Report,
[d]efendant was continually leaning for balance,
shouting, rambling, slobbering, boisterous, and

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                           6
            whining. Defendant was also shouting at Officer Kuhns
            when he was conducting the field sobriety tests and at
            the police station. Officer [Kuhns's] testimony also
            noted that her demeanor was agitated and angry. While
            waiting for her husband to arrive at the police station,
            [d]efendant slammed her hands down on the patrol desk
            and swiped at Officer Kuhns with her right arm.
            Defendant's demeanor occurred throughout the entire
            interaction with Officer Kuhns up until defendant left
            the police station. Even after [defendant] knew that her
            husband was at the police station, she continued yelling
            and screaming. Defendant was told to sit down . . . but
            didn't until her husband told her to sit down.

      The Law Division judge then addressed the credibility of the

witnesses and the weight to be given to their testimony:

                   This court gives deference to the municipal
            court's finding that . . . Officer Kuhns was credible. His
            testimony was consistent, clear, and he had a good
            recollection of the incident. He likewise has no interest
            in the outcome of the case.

                   While[] Dr. Burns'[s] testimony was believable,
            he candidly indicated that he could not state to a
            reasonable degree of certainty if [defendant's] medical
            conditions affected her performance on the sobriety
            tests.

                  This court finds defendant's testimony to be
            inconsistent with her actions and appearance at the time
            of arrest. Her actions at the time of the stop, inability
            to respond to instructions, fumbling, bloodshot eyes,
            odor of alcohol, out of control behavior and inability to
            complete field sobriety tests, were indicative of her
            intoxication.


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                                        7
                   With respect to the testimony of Donald Targan,
            he was not present while defendant was drinking, nor at
            the time of the stop and arrest. Accordingly, this court
            gives his testimony little weight.

                    ....

                   As to the remaining field sobriety tests employed,
            Mr. Flanagan testified that physical condition can affect
            a person's ability to perform. However, as was
            indicated supra, [d]efendant's medical witness was
            unable to correlate her condition with her failure to
            complete the tests or follow the instructions to do so.
            Accordingly, this court gives Mr. Flanagan's testimony
            little weight.

      The Law Division judge found defendant guilty of DWI beyond a

reasonable doubt.    The court imposed the same fines and penalties as the

municipal court sentence: a three-month driver's license suspension, twelve

hours of Intoxicated Driver Resource Center classes, and the requisite fines,

surcharges, fees, and costs. The court did not impose jail time or require

installation of an ignition interlock device. The Law Division granted a stay of

the sentence pending appeal.

      In this appeal, defendant argues:

            POINT I
            THE MUNICIPAL COURT FAILED TO UTILIZE
            THE PROPER STANDARD OF PROOF IN
            RENDERING ITS VERDICT AND, AT A MINIMUM,
            THE SUPERIOR COURT SHOULD HAVE
            REMANDED THE MATTER FOR A NEW TRIAL

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                                          8
            BEFORE A NEW MUNICIPAL COURT JUDGE
            WITH INSTRUCTIONS TO EMPLOY THE PROPER
            BEYOND A RE[A]SONABLE DOUBT STANDARD.

            POINT II
            THE MUNICIPAL AND SUPERIOR COURTS
            FAILED TO ASSESS THE CREDIBILITY OF THE
            DEFENSE WITNESSES AND IMPROPERLY
            WEIGHED THE TESTIMONY OF THE POLICE
            OFFICER.

            POINT III
            IF THIS HONORABLE COURT WERE TO UTILIZE
            THE PROPER STANDARD OF PROOF AND WERE
            TO    MAKE   THE   PROPER   CREDIBILITY
            ASSESSMENTS, THEN THE COURT WOULD
            RIGHTLY FIND THE DEFENDANT NOT GUILTY
            OF DRIVING WHILE INTOXICATED.

      Our standard of review is well-settled.     When a defendant appeals a

conviction of a motor vehicle violation following a trial de novo in the Law

Division, the scope of appellate review is both narrow and deferential. State v.

Stas,  212 N.J. 37, 48-49 (2012). The trial judge's factual findings will not be

disturbed where they are supported by sufficient credible evidence in the record.

State v. Locurto,  157 N.J. 463, 471 (1999).

      Law Division judges in a trial de novo must make their own independent

findings of fact since they undertake "an independent fact-finding function in

respect of defendant's guilt or innocence." State v. Cerefice,  335 N.J. Super.
 374, 383 (App. Div. 2000) (citing State v. Avena,  281 N.J. Super. 327, 333 (App.

                                                                         A-0689-17T1
                                        9 Div. 1995)). "Nevertheless, even on de novo review, the Law Division judge

must give due, although not necessarily controlling, regard to the opportunity of

the trial judge to judge the credibility of the witnesses." Ibid. 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,  157 N.J. at 474. "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." Stas,  212 N.J. at 49.

      We affirm substantially for the reasons expressed by Judge Waldman in

his well-reasoned and comprehensive letter opinion. We add the following

comments.

      Based on the municipal court judge's use of the word "contest" in his oral

decision, defendant contends she was improperly convicted by a preponderance

of the evidence rather than beyond a reasonable doubt. The transcript reveals

the municipal court judge never stated the legal standard he employed to find

the defendant guilty.




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                                      10
      The standard of proof employed by the municipal court judge does not

control this case. 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) (citing State

v. Joas,  34 N.J. 179, 184 (1961)). The Law Division judge expressly found

defendant guilty beyond a reasonable doubt. Defendant's argument that the Law

Division judge should have remanded the case to the municipal court for a new

trial lacks sufficient merit to warrant further discussion in a written opinion. R.

2:11-3(e)(2).

      New Jersey law prohibits the operation of "a motor vehicle while under

the influence of intoxicating liquor . . . ."  N.J.S.A. 39:4-50(a). Our courts have

defined "under the influence" as "a substantial deterioration or diminution of the

mental faculties or physical capabilities of a person . . . ." State v. Bealor,  187 N.J. 575, 589 (2006) (quoting State v. Tamburro,  68 N.J. 414, 420-21 (1975)).

            Expert proofs are not a necessary prerequisite for a
            conviction for driving while under the influence of
            alcohol. Thus, for example, even in the absence of
            expert proofs of a defendant's blood alcohol
            concentration, a conviction for driving while under the
            influence of alcohol will be sustained on proofs of the
            fact of intoxication – a defendant's demeanor and
            physical appearance – coupled with proofs as to the
            cause of intoxication – i.e., the smell of alcohol, an
            admission of the consumption of alcohol, or a lay

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                                       11
              opinion of alcohol intoxication. See State v. Cryan, 363
              N.J. Super. 442, 454-55 (App. Div. 2003) (sustaining
              conviction for driving while intoxicated 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
              conviction based on defendant's "driving without his
              headlights on" and police officer's observations of
              defendant's "strong odor of alcohol on defendant's
              breath[,]" "swaying as he walked[,]" inability to
              perform physical coordination test, slurred speech, and
              combativeness); State v. Oliveri,  336 N.J. Super. 244,
              251-52 (App. Div. 2001) (sustaining conviction on
              "alternative basis" of proofs that "defendant's eyes were
              watery and his speech slow and slurred[;]" defendant's
              inability to follow commands, defendant's admission of
              alcohol consumption earlier that day, defendant's
              staggering when walking, and defendant's failure to
              complete successfully various physical coordination
              tests); State v. Bryant,  328 N.J. Super. 379, 383 (App.
              Div. 2000) (holding that "the prosecutor could have
              proceeded on the driving under the influence charge by
              utilizing evidence other than the breathalyzer results.").

              [Bealor,  187 N.J. at 588-89.]

        Thus, it is well-established that an officer's subjective observation of a

defendant is a sufficient ground to sustain a DWI conviction. That is the case

here.

        Defendant admitted to drinking two glasses of wine. Her car was stopped

partially into an intersection. When Officer Kuhns pulled his patrol vehicle

behind defendant's car, she exited her vehicle and staggered and swayed toward


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                                         12
the patrol car. Defendant exhibited an odor of alcohol on her breath, slurred

speech, watery and bloodshot eyes, a flushed face, unusual mood swings, and

initially presented credit cards when asked for her driver's license. She was

unable to perform field sobriety tests.     Defendant was clearly "under the

influence of intoxicating liquor."

      Defendant presented expert testimony by Dr. Leo Burns, an emergency

room physician. Notably, Dr. Burns never examined defendant. Instead, he

relied solely on his review of defendant's medical records. Dr. Burns could not

state within a reasonable degree of certainty if defendant's medical conditions

affected her performance on the sobriety tests. "[T]he weight to which an expert

opinion is entitled can rise no higher than the facts and reasoning upon which

that opinion is predicated."    State v. Jenewicz,  193 N.J. 440, 466 (2008)

(alteration in original) (quoting Johnson v. Salem Corp.,  97 N.J. 78, 91 (1984));

see also Model Jury Charges (Criminal), "Expert Testimony" (rev. Nov. 10,

2003). The factfinder may reject the testimony of an expert "even if that

testimony is unrebutted by any other evidence." State v. M.J.K.,  369 N.J. Super.
 532, 549 (App. Div. 2004).

      In this case, the Law Division judge clearly understood that his role was

to make independent findings; findings that, ultimately, were reflected in his


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                                      13
written opinion. The judge examined the totality of the evidence and rendered

detailed findings of fact and conclusions of law. Judge Waldman's factual

findings, credibility determinations, and legal conclusions are supported by

sufficient credible evidence in the record. The officer's observations coupled

with the surrounding circumstances provide ample evidence of defendant's guilt.

We discern no basis to disturb the Law Division judge's determination that

defendant was guilty of DWI beyond a reasonable doubt.

      The stay of sentence entered by the Law Division is terminated.

Defendant shall turn in her driver's license to the Linwood Municipal Court

within five days of the date of this opinion.

      Affirmed.




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