NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-0971-18T4
STATE OF NEW JERSEY,
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-
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).
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
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.
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.
Defendant's fifth point before the Law Division judge pertained to his reckless
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.
THERE IS REASONABLE DOUBT AS TO THE
INTOXICATION ELEMENT OF DWI. THUS, THE
LAW DIVISION RULING SHOULD BE REVERSED
AND DEFENDANT ACQUITTED OF DWI.
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.
THE LAW DIVISION ERRED IN CONVICTING
DEFENDANT OF [USING A HANDHELD CELL
PHONE WHILE DRIVING,] N.J.S.[A.] 39:4-97.3,
GIVEN LACK OF PROOF BEYOND A
We reject these arguments and affirm.
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
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
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
Miranda v. Arizona, 384 U.S. 436 (1966).
sure." Gordon then read aloud the following passage from the standard
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."
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
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
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.
[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.,
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
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
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.
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
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).