STATE OF NEW JERSEY v. JONATHAN LIM

NOT FOR PUBLICATION WITHOUT THE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-4550-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JONATHAN LIM,

     Defendant-Appellant.
_______________________

                   Submitted April 22, 2020 – Decided May 13, 2020

                   Judges Haas and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Municipal Appeal No. 18-23.

                   The Hernandez Law Firm, PC, attorney for appellant
                   (Thomas Michael Cannavo, of counsel and on the
                   brief).

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel J. Marzarella, Chief
                   Appellate Attorney, of counsel; Cheryl L. Hammel,
                   Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Jonathan Lim appeals his Law Division conviction for driving

while intoxicated (DWI),  N.J.S.A. 39:4-50. We affirm, substantially for the

reasons set forth in Judge Michael T. Collins' thoughtful and comprehensive

written opinion dated June 6, 2019.

      On July 23, 2017, Officer Matthew Chester of the Harvey Cedars Police

Department answered a phone call from an anonymous caller who reported

seeing a man leave the beach wearing nothing but a jacket, get into a white truck

and drive west. The caller also said he saw the driver run a red light. Officer

Chester left the station in an unmarked patrol car to investigate.

      Officer Chester found a white truck in the area, stopped in the middle of

the road and facing the wrong direction. The truck was about fifty feet away

when the officer saw defendant in the driver's seat. Officer Chester decided to

back up and drive around the block rather than approach the truck head on. As

the officer approached the truck, he saw defendant adjusting himsel f in the

passenger seat while a female, later identified as Susan Elliott, walked from the

passenger side to the driver's side of the truck. The officer believed defendant

and Elliott were switching seats. He asked both parties for identification.

      During the stop, the officer observed that defendant had bloodshot, glassy

eyes and was slouched over in the passenger seat, wearing nothing but a jacket


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covering his waist area. Defendant's speech was slurred, and the officer detected

an odor of alcohol emanating from inside the truck. Although Elliott initially

claimed she drove the truck and defendant adamantly denied driving, Elliott

eventually admitted defendant drove the truck. Officer Chester then asked

defendant to step out of the truck to perform field sobriety tests (FSTs). The

FSTs were captured on the officer's dash-cam recorder. Defendant was arrested

for DWI after he failed these tests.

      Defendant was transported to the Ship Bottom Police Department to

submit to an Alcotest.     Patrolman Anthony Abbatemarco commenced the

twenty-minute observation period for the Alcotest and noted the start time of the

observation period was 9:02 p.m. and that it concluded at 9:22 p.m. Officer

Chester also observed defendant during this period. Based on the results of the

Alcotest, defendant's BAC was 0.12%.        He received summonses for DWI,

careless driving,  N.J.S.A. 39:4-97 and reckless driving,  N.J.S.A. 39:4-96.

      Defendant requested adjournments for his initial municipal court dates

and requested a waiver of his appearance for an October 2017 court date. In

December 2017, defendant requested and received another adjournment to hire

an expert. In February 2018, defendant advised that his expert was unavailable

for a scheduled April 2018 trial date and he received another postponement. The


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next trial date in May 2018 was adjourned due to the unavailability of the

assigned judge, and the matter was rescheduled to September 17, 2018.

      Prior to the rescheduled trial date, defendant filed a motion to suppress

and a motion to dismiss for lack of a speedy trial. These motions were denied.

Defendant also moved to exclude his Alcotest results, claiming the State

committed a discovery violation by failing to produce videos of the interior

lobby and hallway of the Ship Bottom Police Department. The municipal court

conducted an N.J.R.E. 104 hearing to address the admissibility of the Alcotest

readings. Following the hearing, the municipal judge admitted these readings

and rejected defendant's argument that the requested videos, if they existed, were

relevant or material to his defense. The trial commenced but was adjourned at

defendant's request.

      On October 22, 2018, defendant was found guilty of DWI and careless

driving, but found not guilty of reckless driving. The judge noted this was

defendant's fifth conviction for DWI but would be treated as a third conviction.

Accordingly, on the DWI conviction, defendant was sentenced to a $1006 fine,

$33 court costs, $75 VCCO, $55 SNSF and a $225 surcharge. Defendant also

was sentenced to a driver's license suspension of ten years and the installation

of an ignition interlock device for twelve years concurrent to the license


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suspension, plus twelve hours of detainment at an Intoxicated Driver Resource

Center (IDRC). Additionally, defendant received a mandatory 180-day jail

term, 90 days of which could be served at an approved inpatient program. On

the careless driving conviction, the municipal judge imposed a $156 fine and

$33 court costs. At defendant's request, the judge stayed his incarceration

pending appeal.

      After defendant's de novo trial in the Law Division, he again was found

guilty of DWI and careless driving. Judge Collins found the sentence for the

latter conviction should merge with the sentence for defendant's DWI and

imposed the same jail term, license suspension, ignition interlock installation

and IDRC requirements as the municipal judge.

      On appeal, defendant presents several arguments for our consideration,

which were considered by Judge Collins, as follows:

                                   POINT I

            THE LAW DIVISION ERRED IN FAILING TO DE
            NOVO DISMISS THE CHARGES AGAINST THE
            DEFENDANT FOR VIOLATION OF HIS SIXTH
            AMENDMENT RIGHT TO A SPEEDY TRIAL.

                                  POINT II

            THE LAW DIVISION ERRED IN DENYING THE
            MOTION TO SUPPRESS. EVEN IF THE INITIAL
            DETENTION    OF    DEFENDANT      WERE

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UNLAWFUL, THE PROLONGED DETENTION
BEFORE HE WAS ORDERED OUT OF THE CAR
CONSTITUTED A DE FACTO ARREST NOT
SUPPORTED BY PROBABLE CAUSE.

                 POINT III

THE LAW DIVISION ERRED IN FAILING TO FIND
A DISCOVERY VIOLATION AND EXCLUDE THE
ALCOTEST READINGS. IN THE ALTERNATIVE,
PURSUANT TO [RULE] 7:7-7, DESTRUCTION OF
THE IN-STATION OR OTHER RELEVANT DWI
VIDEO OR FAILURE TO PRESERVE SUCH
RELEVANT EVIDENCE IS A DISCOVERY
VIOLATION MANDATING AT LEAST AN
ADVERSE INFERENCE AGAINST THE STATE.

                 POINT IV

THE LAW DIVISION ERRED IN FAILING TO FIND
A    TWENTY      MINUTE     OBSERVATION
VIOLATION. THUS, THE ALCOTEST READINGS
SHOULD [BE] EXCLUDED AND DEFENDANT
[ACQUITTED] OF THE PER SE PRONG OF THE
DWI OFFENSE.

                POINT V

THE LAW DIVISION ERRED IN FINDING
DEFENDANT GUILTY DE NOVO OF THE
OBSERVATIONAL PRONG OF THE DWI
STATUTE AND FINDING OPERATION BEYOND A
REASONABLE DOUBT.




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      Following a careful review of the record, we conclude defendant's

arguments lack merit.      Except as addressed below, they do not warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      On appeal from a municipal court to the Law Division, the review is de

novo on the record. R. 3:23-8(a)(2). The Law Division judge must make

independent findings of fact and conclusions of law but defers to the municipal

court's credibility findings.   State v. Robertson,  228 N.J. 138, 147 (2017).

Unlike the Law Division, however, we do not independently assess the evidence.

State v. Locurto,  157 N.J. 463, 471-72 (1999). Our "standard of review of a de

novo verdict after a municipal court trial is to determine whether the findings

made could reasonably have been reached on sufficient credible evidence

present in the record, considering the proofs as a whole." State v. Ebert,  377 N.J. Super. 1, 8 (App. Div. 2005) (citation omitted).

      The rule of deference is more compelling where, as here, the municipal

and Law Division judges made concurrent findings. Locurto,  157 N.J. at 474.

"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." Ibid.

"Therefore, appellate review of the factual and credibility findings of the


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municipal court and the Law Division 'is exceedingly narrow.'" State v. Reece,

 222 N.J. 154, 167 (2015) (quoting Locurto,  157 N.J. at 470).

      Unless there is an obvious and exceptional showing of error, we will not

disturb the Law Division's findings when the municipal court and Law Division

"have entered concurrent judgments on purely factual issues." Ibid. (citing

Locurto,  157 N.J. at 474). But, "[a] trial court's interpretation of the law and the

legal consequences that flow from established facts are not entitled to any

special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995).

      Governed by these principles, we             are satisfied Judge Collins

comprehensively and correctly addressed defendant's arguments in his June 6,

2019 opinion. Further, before he found defendant guilty of DWI and imposed

the same sentence as the municipal judge, Judge Collins found a review of the

dash-cam video of the stop was "critical in reaching [his] findings as to the

results of the FSTs." Judge Collins added, "[Officer] Chester's observations

throughout the entire encounter with [d]efendant satisfy the burden of proof

necessary to convict [d]efendant with driving while intoxicated."




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      Given our standard of review, we perceive no basis to disturb Judge

Collins' finding that defendant was guilty of DWI as it was supported by

overwhelming credible evidence in the record.

      Affirmed. To the extent the stay of the custodial portion of defendant's

sentence remained in effect pending his de novo appeal, it now is vacated. The

trial court shall administer the implementation of the sentence in the ordinary

course.




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