NOT FOR PUBLICATION WITHOUT THE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-4550-18T3
STATE OF NEW JERSEY,
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
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).
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
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
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
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
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
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:
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.
THE LAW DIVISION ERRED IN DENYING THE
MOTION TO SUPPRESS. EVEN IF THE INITIAL
DETENTION OF DEFENDANT WERE
UNLAWFUL, THE PROLONGED DETENTION
BEFORE HE WAS ORDERED OUT OF THE CAR
CONSTITUTED A DE FACTO ARREST NOT
SUPPORTED BY PROBABLE CAUSE.
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.
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
THE LAW DIVISION ERRED IN FINDING
DEFENDANT GUILTY DE NOVO OF THE
OBSERVATIONAL PRONG OF THE DWI
STATUTE AND FINDING OPERATION BEYOND A
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
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."
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