STATE OF NEW JERSEY v. OMAR GASSAMA

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NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0971-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

OMAR GASSAMA,

          Defendant-Appellant.


                   Submitted May 28, 2019 – Decided June 10, 2019

                   Before Judges Gooden Brown and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Atlantic County, Municipal Appeal No. 18-
                   17.

                   Lukach Law, PC, attorneys for appellant (Stephen M.
                   Lukach, III, of counsel and on the brief).

                   Damon G. Tyner, Atlantic County Prosecutor, attorney
                   for respondent (John Joseph Santoliquido, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Omar Gassama was arrested in Hammonton and charged with

driving while intoxicated (DWI),  N.J.S.A. 39:4-50; refusal to submit to a

chemical breath test (refusal),  N.J.S.A. 39:4-50.4a; refusal to consent to the

taking of breath samples,  N.J.S.A. 39:4-50.2; unsafe lane change,  N.J.S.A. 39:4-

88(b); reckless driving,  N.J.S.A. 39:4-96; and using a handheld cell phone while

driving,  N.J.S.A. 39:4-97.3. At the conclusion of the trial, the municipal court

issued a written decision, finding defendant guilty of all charges, with one

exception.1 Following a trial de novo in the Law Division, the judge issued a

written decision, finding the State proved all of the remaining charges beyond a

reasonable doubt, except reckless driving. 2

      Defendant now appeals, raising four of the five points he raised before the

Law Division judge: 3




1
   The municipal court found defendant not guilty of refusal to consent to the
taking of breath samples because the penalty provisions for that charge are
included in the refusal statute.
2
  The Law Division judge determined that, although defendant was DWI, he did
not "dr[i]ve his vehicle heedlessly, in willful or wanton disregard of the rights
or safety of others, in a manner so as to endanger, or likely to endanger, a person
or property." See  N.J.S.A. 39:4-96.
3
  Defendant's fifth point before the Law Division judge pertained to his reckless
driving conviction.
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POINT I

THE LAW DIVISION ERRED IN HOLDING THERE
WAS SUFFICIENT REASONABLE SUSPICION TO
PERFORM PSYCHOPHYSICAL TESTS AT THE
SCENE PURSUANT TO STATE V. BERNOKEITS[,
 423 N.J. SUPER. 365 (APP. DIV. 2011)]. THUS, THIS
COURT SHOULD REVERSE AND SUPPRESS ALL
EVIDENCE SEIZED OR OBSERVED AS FRUIT OF
THE      POISONOUS      TREE     AND     ACQUIT
DEFENDANT OF REFUSAL AND DWI.

POINT II

THERE IS REASONABLE DOUBT AS TO THE
INTOXICATION ELEMENT OF DWI. THUS, THE
LAW DIVISION RULING SHOULD BE REVERSED
AND DEFENDANT ACQUITTED OF DWI.

POINT III

UNDER THE UNIQUE CIRCUMSTANCES OF THIS
CASE, THE STATE FAILED TO PROVE REFUSAL
BEYOND      A    REASONABLE      DOUBT.
[DEFENDANT] HAD DEMONSTRATED A VALI[D]
CONFUSION DEFENSE. EVEN IF CONFUSION
PROPERLY [WERE] NOT FOUND, THE "NO"
RESULTS OF POLICE QUESTIONING WHILE
DEFENDANT WAS IN CUSTODY, VIOLATES
DEFENDANT'S FIFTH AMENDMENT RIGHTS,
AND/OR THE NEW JERSEY COMMON LAW
PRIVILEGE AGAINST SELF-INCRIMINATION.

POINT IV

THE LAW DIVISION ERRED IN CONVICTING
DEFENDANT OF [USING A HANDHELD CELL
PHONE WHILE DRIVING,] N.J.S.[A.] 39:4-97.3,

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            GIVEN LACK OF     PROOF                   BEYOND         A
            REASONABLE DOUBT.

We reject these arguments and affirm.

                                         I.

      We derive the salient facts from the testimony adduced at the municipal

court trial, during which the arresting trooper testified on behalf of the State and

defendant testified in his own behalf. The State also moved into evidence

several documents, and the video of the incident captured by the police car's

mobile recorder.

      On March 5, 2017, at approximately 8:00 a.m., State Trooper Jerome

Gordon was patrolling the Atlantic City Expressway in Hammonton when he

received a report of an "erratic operator."          Thereafter, Gordon noticed

defendant's vehicle "driving between the right and the center lanes," without

signaling. When the car passed Gordon's location in a cutout of the roadway,

the trooper observed defendant holding a cellphone in his left hand.

      Gordon then stopped the car, and upon approaching, immediately smelled

alcohol emanating from the vehicle.           Gordon made multiple requests for

defendant's driving credentials, but defendant moved slowly and his hands were

"fumbling when he was trying to get those documents." Defendant's eyes

appeared "bloodshot and watery," with "droopy lids."              Based on those

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observations, Gordon asked defendant to exit the vehicle and perform

standardized field sobriety tests.

       Defendant failed to comply with Gordon's instructions by miscounting the

number of steps requested for the walk-and-turn test, and incorrectly counting

during the one-leg-stand test. During administration of the tests, defendant was

"swaying, [with] saggy knees," "grasping for support and . . . staggering" with

his "feet wide apart for balance." His speech was "rambling, slobbering,"

"slurred" and "whispering at times." When Gordon asked whether defendant

had any injuries, defendant said he had a leg injury, but would not elaborate.

Instead, defendant repeated he had a "medical problem."         Gordon placed

defendant under arrest for DWI.

       At the police barracks, Gordon again administered Miranda4 warnings to

defendant, but defendant refused to sign the form confirming he had been so

advised.    Gordon then read to defendant the Attorney General's Standard

Statement for Motor Vehicle Operators (standard statement), informing him of

the consequences of a refusal to submit to a breath test. When ultimately asked

whether he would submit to breath samples, defendant responded, "I'm not




4
    Miranda v. Arizona,  384 U.S. 436 (1966).
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sure."     Gordon then read aloud the following passage from the standard

statement:

               Your answer is not acceptable. The law requires that
               you submit samples of your breath for breath testing. If
               you do not answer or answer with anything other than
               "yes," I will charge you with refusal. Now, I ask you
               again, will you submit to breath testing?

Defendant responded, "no." Defendant acknowledged that he had consumed

"[o]ne Heineken" beer the night before the stop.            Gordon memorialized

defendant's response on the standard State Police drunk driving questionn aire.

         Defendant testified at the hearing and gave a vastly different version of

the events. He claimed he never switched lanes on the Expressway, remaining

in the right lane, where he "always drive[s]." Defendant denied drinking the

night before, stating "I never drink [sic] in my life." He also said he was not

holding his cell phone when he passed Gordon. Rather, he claimed the cell

phone had run out of battery power because he had been using it for GPS

purposes during his trip from Pennsylvania. Defendant also blamed the pain in

his legs for his inability to perform the field sobriety tests. He said he requested

a lawyer after he was read the standard statement, claiming that he did not trust

Gordon. Defendant claimed he "begged [Gordon] to take a [breath] test."




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      The municipal court made detailed factual findings, crediting the

testimony of the trooper, thereby implicitly rejecting defendant's account. See

State v. Locurto,  157 N.J. 463, 474 (1999). After reviewing the municipal court

record, the Law Division judge made substantially similar factual and credibility

findings.5

      In particular, the Law Division judge determined "[Gordon's] testimony

was consistent, reasonable and, together with the documentary record, was

believable."   Conversely, the judge found defendant's testimony was not

credible. For example, the video evidence contradicted defendant's testimony

that he crossed the center lane without signaling; Gordon's detection of the odor

of alcohol and defendant's admission that he drank beer contradicted his trial

testimony that he had not consumed alcohol; and defendant's alleged mistrust of

Gordon defied his testimony that he "begged the trooper to administer the




5
    Citing our decision in State v. Kashi, the Law Division judge clearly
understood his role was neither to affirm nor reverse the municipal court's
rulings.  360 N.J. Super. 538, 545 (App. Div. 2003), aff'd o.b.,  180 N.J. 45
(2004); see also State v. Robertson,  228 N.J. 138, 147 (2017). Further, the judge
aptly made his own independent findings of fact based on the record before the
municipal court. Robertson,  228 N.J. at 147. Nonetheless, the judge incorrectly
"denied" defendant's appeal of his DWI, refusal, and use of a cell phone
convictions, and "granted" defendant's appeal of his reckless driving conviction.
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[breath test]." Nor did the judge find credible defendant's testimony that he was

not using his cell phone prior to the stop.

      The Law Division judge set forth his conclusions of law based on the

evidentiary record for each charge. The judge first considered the propriety of

the DWI stop and subsequent field sobriety testing. Recognizing police only

need reasonable articulable suspicion that a motor vehicle violation has occurred

to stop a vehicle, "no matter how minor" the violation, the judge determined the

stop was justified. The judge elaborated:

            [T]he trooper first observed . . . defendant using a
            mobile phone. The trooper also observed . . .
            defendant's vehicle switching between the right and
            center lanes without engaging the directional signal.
            This is consonant with the video record. When . . .
            Gordon stopped . . . defendant's vehicle, he noticed . . .
            defendant had bloodshot and watery eyes, and . . .
            fumbled while retrieving his license and registration.
            He likewise testified that [the] odor of alcoholic
            beverage was emanating from the vehicle.

      Relevant to this appeal, the judge further determined defendant's reliance

on Bernokeits was "misplaced." As the judge observed, in Bernokeits, we

recognized a defendant could be ordered to perform field sobriety tests solely

on the basis of reasonable suspicion of intoxication.  423 N.J. Super. at 374. In

the present case, there existed sufficient evidence of defendant's intoxication to

support Gordon's reasonable suspicion and justify field sobriety testing, i.e.,

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defendant's slurred speech, bloodshot eyes, fumbling for documents and the odor

of alcohol emanating from the vehicle.

      Turning to the DWI charge, the judge summarized the governing

principles and squarely addressed defendant's argument that his injuries

prevented him from passing the sobriety tests:

            [D]efendant argues that he informed the trooper of
            injuries to his legs and back. However, even with the
            injuries, defendant was able to walk in a straight line
            and pivot correctly. Defendant's deficiencies on the
            walk and turn test were his failure to follow instructions
            (e.g.; walking [twelve] steps up and [eleven] steps back
            when instructed to take [nine] steps, up and back), and
            failure to walk heel to toe. This runs contrary to
            defendant's argument that his injuries caused him to fail
            the walk and turn test.

                   When the trooper administered the one leg stand
            [test], . . . defendant had to use support and the trooper
            had to grab . . . defendant to keep him from falling over.
            Defendant was ordered to stand on the leg that was not
            injured. . . . [D]efendant also counted to ten several
            times, despite the trooper's directive that he continue
            counting in ascending order until directed to stop. . . .
            [D]efendant likewise admitted to drinking alcohol.

Finally, the judge noted defendant's refusal to submit to a breath test was

"evidence of intoxication."

      Addressing the refusal charge, the Law Division judge appropriately

rejected defendant's "confusion" defense, recognizing that defense is not viable


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in our State. Instead, the judge noted defendant's initial "I'm not sure" answer

was followed by a "no" response to Gordon's second question from the standard

statement. Accordingly, the judge determined defendant clearly understood

Gordon's request for a breath sample, but "simply refused to submit to breath

testing."

      The judge likewise rejected defendant's contention that the standard

statement questions posed by Gordon violated Miranda. According to the judge,

that argument "r[an] contrary to the litany of cases indicating that anything short

of unequivocal assent, even silence, constitutes refusal, in applying the implied

consent statute, N.J.S.A. 39:4-50.2(a)." See, e.g., State v. Widmaier,  157 N.J.
 475, 497 (1999); State v. Spell,  395 N.J. Super. 337, 344 (App. Div. 2007).

Here, defendant was provided the warnings multiple times, and "simply refused

to acknowledge them."

      Finally, regarding use of a cell phone while driving, the judge accepted

Gordon's "testimony as credible that he saw the phone raised in defendant's left

hand." Further, defendant failed to satisfy any exception set forth in  N.J.S.A.

39:4-97.3(b). This appeal followed.




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                                          II.

      Our review is limited following a trial de novo in the Law Division

conducted on the record developed in the municipal court. State v. Clarksburg

Inn,  375 N.J. Super. 624, 639 (App. Div. 2005). 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). Thus, we do not independently assess

the evidence. Locurto,  157 N.J. at 471. Rather, we focus our review on "whether

there is 'sufficient credible evidence . . . in the record' to support the trial court's

findings." State v. Robertson,  228 N.J. 138, 148 (2017) (alteration in original)

(quoting State v. Johnson,  42 N.J. 146, 162 (1964)).

      By contrast, our review of a legal determination is plenary.             State v.

Kuropchak,  221 N.J. 368, 383 (2015). However, we will reverse only after being

"thoroughly satisfied that the finding is clearly a mistaken one and so plainly

unwarranted that the interests of justice demand intervention and correction

. . . ." Johnson,  42 N.J. at 162.

      Moreover, "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. Therefore, our review of the factual and


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credibility findings of the municipal court and the Law Division "is exceedingly

narrow." State v. Reece,  222 N.J. 154, 167 (2015) (quoting id. at 470).

      Having carefully considered defendant's arguments in light of the record

and controlling legal principles, we find no basis for reversal here. Pursuant to

our "exceedingly narrow" standard of review, we affirm substantially for the

reasons expressed in the Law Division judge's cogent written decision, which is

supported by sufficient credible evidence in the record. See Locurto,  157 N.J.

at 472. In doing so, we conclude defendant's arguments lack sufficient merit to

warrant discussion in our opinion. R. 2:11-3(e)(2).

      Affirmed.




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