NOT FOR PUBLICATION WITHOUT THE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-0233-19T4
STATE OF NEW JERSEY,
CARROLL T. QUINN,
Submitted May 18, 2020 – Decided July 7, 2020
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Municipal Appeal No. 15-08-
Forster Arbore Velez, attorneys for appellant (John
Paul Velez, of counsel and on the briefs).
Francis A. Koch, Sussex County Prosecutor, attorney
for respondent (Shaina Brenner, Assistant Prosecutor,
of counsel and on the brief).
In our unpublished decision, we affirmed defendant Carroll T. Quinn's
trial de novo conviction for failure to maintain a lane, N.J.S.A. 39:4-82, but
vacated and remanded his trial de novo conviction for refusal to submit to a
chemical test, N.J.S.A. 39:4-50.4(a) (refusal statute), because the State agreed
with his claim that the Law Division applied the wrong standard of proof – a
preponderance of evidence rather than beyond a reasonable doubt – in finding
him guilty. State v. Quinn, No. A-3558-16 (App. Div. Oct. 12, 2018) (slip op.
at 14). We incorporate by reference the facts surrounding defendant's arrest and
charges arising from his single-car accident in striking a utility pole on
December 25, 2013, at approximately midnight, and the procedural history of
his prior court proceedings contained in that unpublished opinion.
On remand, a different trial judge presided, Judge Thomas J. Critchley.
After oral argument and consideration of the municipal court trial transcripts,
the judge issued his order and oral decision finding defendant guilty of refusal.
The judge carefully detailed the testimony of Sparta Township Police Corporal
Frank Schomp, finding defendant refused the breath test four times, which were
properly requested "according to protocol." The judge reasoned:
On its face, it is the refusal and, indeed, the knowing
refusal aspect of it is straightforward and clear, not just
beyond a reasonable doubt, but beyond any sensible
doubt. It's plain language. I will note parenthetically
that I do find from the record – I wasn't obviously
listening to the witnesses directly – but find from the
record that [Schomp,] who testified regarding these
points[,] was credible and straightforward in presenting
what had happened in the sequence of events. Nobody's
recollection, documentation, or articulation of events is
perfect, but I do find [him] credible.
In reviewing the requirements under the refusal statute that a driver submit
to a breath test when requested by law enforcement, the judge determined:
[T]he State must prove beyond a reasonable doubt all
the elements of the refusal statute; that is, that the
officer making the request had probable cause to
believe the defendant was operating a motor vehicle on
a public road under the influence, that he had been
placed under arrest for DWI, that the defendant was
asked to submit to a breath test in an appropriate
manner, and, finally, the person made a refusal and, of
course, we will require a knowing and competent
The judge found there was probable cause for Schomp to believe
defendant had operated a vehicle under the influence of alcohol 1 based on:
[T]he direct and commonsense observations that were
placed into the record.
In other words, it was a serious crash with the vehicle
running off the road. It was a one-car crash. It
appeared, a quick analysis at the scene, that there was
no particular precipitating factor other than the failure
of proper operation. In addition, the officer noted an
On trial de novo, the Law Division found defendant not guilty of driving while
intoxicated, N.J.S.A. 39:4-50. Quinn, slip op. at 7.
odor of alcohol and bloodshot eyes in the course of the
investigation. I've already noted some of the issues or
perceptions of the balance and the speech.
Looking at all the elements of the situation in a
commonsense way, looking at the nature of the
accident, the perceived, directly perceived condition of
the subject – I just want to check one item – the direct
possession or perception of an odor of alcohol and
Just these items, even leaving aside the field sobriety
tests, would be sufficient in my view in a commonsense
way to establish probable cause in the manner required
by the statute and they are straightforward and
established in the record beyond a reasonable doubt.
Addressing the field sobriety tests, the judge noted:
it is frequently the case that these are not performed, I
should say administered perfectly, but there was
sufficient challenges exhibited by the subject in terms
of balance, speech, following directions, and
completing the test to amplify, I think, the sense of
probable cause. I don't think it would be necessary or
sensible to exclude them totally but certainly the
cumulative record, I think, is more than sufficient to
establish . . . the probable cause element beyond a
After finding the State proved the second and third elements of the refusal
statute, the judge addressed whether there was a knowing refusal of the test by
defendant. He acknowledged it was possible that defendant's cognition could
have been impacted by the accident, but he found it "unclear" whether such a
hindrance existed despite defendant's expert testimony. The judge noted that
according to Schomp's testimony, at no point during his questioning did
defendant give a "nonsensical" response, and, in the judge's view, defendant was
"in a state of mind beyond a reasonable doubt to give a complete[,] lucid and
binding response[s][.]" Ultimately, the judge found the fourth element was "also
established in our record beyond a reasonable doubt . . ." because defendant
"was, in my view, in a state of mind beyond a reasonable doubt to give a
competent lucid and binding response to questions that were posed." This
In a single point, defendant argues:
THE STATE HAS FAILED TO PROVE
BEYOND A REASONABLE DOUBT THAT
[DEFENDANT] IS GUILTY OF REFUSAL TO
CONSENT TO A BREATH SAMPLE,
CONTRARY TO THE PROVISIONS OF
N.J.S.A. 39:4-50.4, BECAUSE THERE WAS
NO PROBABLE CAUSE TO BELIEVE THAT
HE WAS DRIVING A MOTOR VEHICLE
UNDER THE INFLUENCE OF ALCOHOL
AND BECAUSE HE DID NOT KNOWINGLY
REFUSE TO SUBMIT TO THE BREATH TEST
BASED UPON THE EFFECTS OF THE
MOTOR VEHICLE ACCIDENT FROM
WHICH HE WAS SUFFERING.
Based upon our review of Judge Critchley's trial de novo decision of
defendant's municipal court appeal, we conclude his findings the State proved
beyond a reasonable doubt that defendant was guilty of the refusal statute was
made on sufficient credible evidence in the record. State v. Gibson, 429 N.J.
Super. 456, 463 (App. Div. 2013) (citing State v. Locurto, 157 N.J. 463, 471
(1999)) ("Unlike the Law Division, which conducts a trial de novo on the record,
Rule 3:23-8(a), we do not independently assess the evidence."); State v. Stas,
212 N.J. 37, 49 (2012) (quoting Locurto, 157 N.J. at 471 (1999)) (holding
appellate review considers "whether the findings made could reasonably have
been reached on sufficient credible evidence present in the record").
We also conclude the judge correctly applied his factual findings to the
legal conclusions required to find defendant guilty of the refusal statute. Stas,
212 N.J. at 49 (citing State v. Handy, 206 N.J. 39, 45 (2011)) (ruling appellate
review defers to the trial judge's findings of fact, but "legal determinations is
Accordingly, we affirm substantially for the sound reasons expressed in
the judge's oral decision. And to the extent we have not specifically addressed
any of defendant's arguments, it is because we conclude they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).