STATE OF NEW JERSEY v. SHARON COURSEY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5496-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHARON COURSEY,
Defendant-Appellant.
________________________
Submitted December 8, 2020 – Decided December 30, 2020
Before Judges Yannotti and Natali.
On appeal from the Superior Court of New Jersey, Cape
May County, Municipal Appeal No. 05-05-18.
D. Scott DeWeese, II, attorney for appellant.
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (James E. Moore, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Following a trial de novo in the Law Division, defendant Sharon Coursey
was convicted of refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and
resisting arrest, N.J.S.A. 2C:29-2(a)(1). She appeals from both her refusal and
resisting arrest convictions, raising the following points for our consideration 1:
POINT I
THE LAW DIVISION'S FINDING OF GUILTY WITH
RESPECT TO SUMMONS ACSO-38980, REFUSAL
TO SUBMIT TO A BREATH TEST, WAS IN ERROR
AS THERE WAS INSUFFICIENT EVIDENCE IN
THE RECORD TO SUPPORT THE CONVICTION.
POINT II
[SERGEANT ADE LACKED PROBABLE CAUSE
TO BELIEVE THAT . . . DEFENDANT . . .
OPERATED A MOTOR VEHICLE WITHIN THE
CONTEXT OF THE DRIVING WHILE
INTOXICATED STATUTE, N.J.S.A. 39:4-50.]
POINT III
THE DEFENDANT['S] . . . CONVICTION FOR
REFUSAL TO SUBMIT TO A BREATH TEST MUST
BE VACATED OR OTHERWISE REVERSED
BECAUSE THERE IS INSUFFICIENT EVIDENCE
THAT SHE KNOWINGLY AND VOLUNTARILY
REFUSED TO SUBMIT TO THE CHEMICAL
BREATH TEST.
POINT IV
THE LAW DIVISION, IN ITS LETTER OPINION,
FAILED TO ADDRESS DEFENDANT['S] . . .
ARGUMENT THAT THE CHARGE UNDER
SUMMONS ACSO-38 980 CONTAINED THE
1
For ease of reference, we have renumbered defendant's point headings.
A-5496-18T4
2
INCORRECT REFUSAL STATUTE; AND, THE
LAW DIVISION ERRED BY NOT REVERSING THE
OCEAN CITY MUNICIPAL COURT'S DENIAL OF
THE STATE'S MOTION TO AMEND THE CHARGE
AND REMANDING THE MATTER BACK TO THE
OCEAN CITY MUNICIPAL COURT FOR FURTHER
PROCEEDINGS.
POINT V
SERGEANT ADE LACKED PROBABLE CAUSE TO
ARREST THE DEFENDANT . . . FOR THE OFFENSE
OF DRIVING WHILE INTOXICATED, AND
THEREFORE, THE DEFENDANT . . . DID NOT
RESIST A LAWFUL ARREST AND HER
CONVICTION FOR SAME MUST BE VACATED OR
OTHERWISE REVERSED.
I.
We rely on the findings of the municipal court judge who conducted the
bench trial and the superior court judge who heard the trial de novo on appeal to
the Law Division. We summarize the relevant facts elicited at trial to provide
context for our opinion.
On September 5, 2013, the Atlantic County Sheriff's Office (ACSO)
responded to a disturbance at the Atlantic County Civil Court Building where
defendant was appearing for a custody hearing regarding her two children.
When the police arrived, defendant was seen outside a courtroom, "speaking in
A-5496-18T4
3
a very loud tone" and "yelling obscenities." Defendant eventually returned to
the courtroom, followed by Sergeant William Ade of the ACSO.
Once inside the courtroom, Sergeant Ade observed defendant acting in a
manner that led him to conclude that she was intoxicated. He stated that
defendant was "swaying in her chair," smelled of alcohol, and her eyes were red
and glassy.
Concerned with her behavior, the judge ordered defendant to take a drug
and alcohol urinalysis test. Sergeant Ade stated that as he and other officers
escorted defendant to the restroom to complete the test, she was "loud and
boisterous" and was "using profanity." He further observed defendant "swaying
and staggering" as she walked.
At the conclusion of the hearing, Sergeant Ade assisted defendant to the
courthouse exit and noticed that she continued to stagger when walking.
Sergeant Ade observed defendant remove keys from her purse, and based on his
concern that defendant was going to operate a vehicle while intoxicated, he
radioed two other officers and asked them to position their vehicle near the
parking lot so that they could effectuate a motor vehicle stop if defendant
attempted to operate her car. Sergeant Ade observed defendant enter her vehicle
and was notified by another officer that she had started it.
A-5496-18T4
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Sergeant Ade approached defendant's vehicle with two other officers,
heard the engine running, and saw defendant in the driver's seat with her seatbelt
on. Sergeant Ade also observed defendant's head "nodding back and forth" and
her "eyelids . . . drooping." When defendant lowered her car window, Sergeant
Ade immediately detected the odor of alcohol. Sergeant Ade informed
defendant that he believed she was under the influence of alcohol and directed
her to exit the vehicle so that he could administer a field sobriety test.
Defendant refused to comply with multiple requests to exit the vehicle and
was advised that she was under arrest. As officers attempted to remove her from
the car, she began to scream and clutch various parts of the vehicle's interior.
Once defendant was removed from the car, she was driven to the Absecon Police
Department for the administration of an Alcotest. During the drive, Sergeant
Ade testified that he continued to "smell the . . . strong odor of an alcoholic
beverage" and noted that defendant was making "incoherent statements."
At the station, defendant was placed in a separate room to "initiate
the . . . twenty-minute observation period prior to administering the [A]lcotest."
During this period, Sergeant Ade read defendant her Miranda2 rights which she
subsequently waived. Sergeant Ade also informed defendant in accordance with
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5496-18T4
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the New Jersey Attorney General's Standardized Statement for Motor Vehicle
Operators, that if she did not provide a breath sample for the Alcotest she would
be charged with refusal.
Sergeant Ade testified that defendant never gave an "affirmative answer
that she was going to submit to the breath test." He noted, however, that as he
read the statement he made "sure that [defendant] was still looking at [him] and
that she followed along with what [he] was saying."
Defendant explained her actions at the police station by testifying that she
had previously been diagnosed with "paranoid schizophrenia" and was currently
suffering from post-traumatic distress order. Defendant also testified that she
had requested to speak with an auxiliary aid provided to her under the Americans
with Disabilities Act.
Defendant was charged under municipal summonses for driving while
intoxicated, N.J.S.A. 39:4-50; possession of open container of alcohol, N.J.S.A.
39:4-51b; failure to exhibit registration, N.J.S.A. 39:3-29; failure to exhibit an
insurance card, N.J.S.A. 39:3-29; and resisting arrest, N.J.S.A. 2C:29-2(a)(1).
Further, rather than being charged with refusal to submit to a chemical breath
A-5496-18T4
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test pursuant to N.J.S.A 39:4-50.4a, defendant was improperly charged under
N.J.S.A. 39:4-50.2.3
Defendant entered a conditional guilty plea to refusal to submit to a
chemical test, N.J.S.A. 39:4-50.4a, after the municipal court judge amended the
original refusal charge to reflect the appropriate statute. The State, thereafter,
dismissed the remaining charges. On appeal to the Law Division, however,
defendant's guilty plea was vacated on the grounds that that there was an
inadequate factual basis to sustain the N.J.S.A. 39:4-50.4a charge. The court
also reinstated the open container and resisting arrest charges.
The matter was reassigned to the Ocean City Municipal Court. Defendant
filed a motion to dismiss the refusal charge for "lack of probable cause with
3 N.J.S.A. 39:4-50.2(a) provides that drivers who operate a "motor vehicle on
any public road, street or highway or quasi-public areas in the State shall be
deemed to have given . . . consent to the taking of samples of his breath for the
purpose of making chemical tests to determine the content of alcohol in [the
operator's] blood." N.J.S.A. 39:4-50.4a includes a delineated list of penalties
for an operator who "refuses to submit, upon request, to a test provided for in
[N.J.S.A. 39:4-50.2]." N.J.S.A. 39:4-50.4a further provides that "[t]he
municipal court shall determine by a preponderance of the evidence whether the
arresting officer had probable cause to believe that the person had been driving
or was in actual physical control of a motor vehicle on the public highways or
quasi-public areas of this State while the person was under the influence of
intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or
marijuana; whether the person was placed under arrest, if appropriate, and
whether he refused to submit to the test upon request of the officer; and if these
elements of the violation are not established, no conviction shall issue."
A-5496-18T4
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regard to operation" of her vehicle. The State opposed the motion and moved
to "amend [the refusal summons] to reflect the appropriate refusal statute, i.e.,
N.J.S.A. 39:4-50.4a." During oral argument, defendant "agreed that the
appropriate refusal statute [was] N.J.S.A. 39:4-50.4a." The municipal court
judge, however, denied the motion to dismiss and the motion to amend the
refusal charge.
On April 18, 2018, after a bench trial, the municipal court judge found
defendant guilty of refusal to submit to a breath test, N.J.S.A. 39:4-50.2, and
resisting arrest, N.J.S.A. 2C:29-2(a)(1). On June 25, 2019, after a trial de novo,
Judge Sarah Beth Johnson issued a thirteen-page written decision and found
defendant guilty of refusal to submit to a breath test in violation of " N.J.S.A.
39:4-50.2 and N.J.S.A. 39:4-50.4a" and resisting arrest.
With respect to the refusal charge, Judge Johnson found that based upon
the credible testimony of Sergeant Ade and other officers, the police had
probable cause to arrest defendant for operating a motor vehicle under the
influence of an intoxicant contrary to N.J.S.A. 39:4-50. Specifically, the judge
noted that defendant smelled of alcohol, spoke incoherently, used profanity,
appeared to stagger as she walked, and was ordered to submit to a drug test by
an Atlantic County judge.
A-5496-18T4
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Judge Johnson also found that defendant had "actual control of her
vehicle" and that she "intended to operate the vehicle while under the influence
because she was sitting in the driver's seat, with her seatbelt engaged and the
engine running." Further, the judge found that defendant was read "the DWI
standard statement" which indicates that "if [d]efendant did not provide a breath
sample, she would be charged with refusal." Moreover, the judge determined
that defendant "did not respond in any way" after "[Sergeant Ade] read the final
paragraph of the DWI standard statement."
The judge further found that defendant failed to provide "any competent
evidence detailing the nature of her mental disorders and how they may have
affected her ability to understand requests such [as those] contained in the DWI
standard statement." Moreover, the judge noted that defendant's "understanding
of events negates the claim that [she] was confused as to the officer's instructions
or her obligations under the law."
Finally, Judge Johnson concluded that defendant "purposely attempted to
prevent officers from effecting an arrest." The judge found that defendant "did
not exit her vehicle when asked to do so . . . had to be forcibly removed from
the vehicle . . . grabbed on to the inside of her vehicle, attempting to prevent
officers from removing her" and "continued to behave in a combative manner,
A-5496-18T4
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cursing and spitting at officers, after she was removed from the vehicle and
handcuffed." This appeal followed.
II.
In defendant's first, second, and fifth points, she argues that her
convictions for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and
resisting arrest, N.J.S.A. 2C:29-2(a)(1), should be reversed because the police
lacked probable cause to arrest her and there was insufficient evidence in the
record to uphold the convictions. Defendant also argues in her third point that
there is "insufficient evidence that she knowingly and voluntarily refused to
submit to the chemical breath test." We find that these arguments are without
sufficient merit to warrant extended discussion in a written opinion, Rule 2:11-
3(e)(2), and affirm substantially for the reasons detailed in Judge Johnson's
comprehensive written opinion. We provide the following comments to amplify
our decision.
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).
A-5496-18T4
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Our review of a de novo conviction by the Law Division is limited to the
issue of whether the court's findings "could reasonably have been reached on
sufficient credible evidence present in the record." State v. Johnson, 42 N.J.
146, 162 (1964). We are "not permitted to 'weigh the evidence, assess the
credibility of witnesses, or make conclusions about the evidence.'" State v.
Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615
(1997)). We review the legal rulings of the trial court de novo. Robertson, 228 N.J. at 148.
"It is well-settled that the trial judge 'giv[es] due, although not necessarily
controlling, regard to the opportunity of the' municipal court judge to assess 'the
credibility of the witnesses.'" Ibid. (alteration in original) (quoting Johnson, 42 N.J. at 157). "[A]ppellate 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.
Here, Judge Johnson found that the police had probable cause to arrest
defendant for operating her vehicle under the influence. The court also
determined that defendant refused consent to provide a breath sample after being
fully informed of the consequences attendant to her refusal. Judge Johnson
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further noted that defendant failed to "provid[e] any competent evidence
detailing the nature of her 'mental disorders'" and any effect on her ability to
understand the information in the "DWI standard statement." Finally, the judge
found that defendant purposely prevented the police from effectuating her arrest.
We are satisfied that Judge Johnson's findings were supported by
sufficient, credible evidence in the record. Johnson, 42 N.J. at 162. We
therefore affirm defendant's convictions for refusal to submit to a breath test,
N.J.S.A. 39:4-50.4a, and resisting arrest, N.J.S.A. 2C:29-2(a)(1).
III.
In defendant's fourth point, she argues that her refusal conviction should
be reversed because the summons mistakenly cited to N.J.S.A. 39:4-50.2 rather
than to N.J.S.A. 39:4-50.4a. She further argues that Judge Johnson should have
reversed the municipal court's decision denying her motion to amend the charge
and remanded the matter to the municipal court "for further proceedings." We
disagree.
In support of her argument, defendant relies on State v. Cummings, 184 N.J. 84 (2005), for the proposition that the "appropriate statute for refusal to
submit a breath sample is N.J.S.A. 39:4-50.4a." The issue before us, however,
is the effect of the municipal court's failure to amend the summons to reflect that
A-5496-18T4
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defendant should have been charged with N.J.S.A. 39:4-50.4a as opposed to
N.J.S.A. 39:4-50.2, and Judge Johnson's subsequent reliance on N.J.S.A. 39:4-
50.4a in her June 25, 2019 opinion to sustain defendant's conviction for refusal.
In Cummings, the Supreme Court commented in a footnote that care
should be taken to list N.J.S.A. 39:4-50.4a rather than N.J.S.A. 39:4-50.2 when
charging a refusal offense. 184 N.J. at 90 n.1. The Court also indicated "we see
no prejudice resulting from it [the incorrect citation in the complaint]." Ibid.
Here, as in Cummings, the police should have listed N.J.S.A. 39:4-50.4a
in the body of the summons, and we can discern no basis in the record for the
municipal court to deny the State's uncontested request to amend the charge to
reflect that correct statutory provision. But, as in Cummings, defendant was not
prejudiced by the error. In this regard, defendant offers no explanation as to
how or why the faulty statutory citation inhibited her ability to prepare and
present a trial defense. Frankly, it is hard to imagine how she might possibly
have been confused as to what specific offense she had to answer to at trial,
particularly where she initially pled guilty to N.J.S.A. 39:4-50.4a, and
subsequently failed to object to the State's application to amend the charge in
the remanded municipal court proceeding.
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In State v. Marquez, 202 N.J. 485 (2010), the Supreme Court recognized
that N.J.S.A. 39:4-50.2 and N.J.S.A. 39:50-.4 are "plainly interrelated" and that
they "not only cross-reference one another internally, but they also rely on each
other substantively. They must therefore be read together." Id. at 501-02. In
the present case, defendant was fully aware of the charge for which she was
tried. As such, there is no basis to overturn defendant’s refusal conviction or
remand the matter for further proceedings.
Affirmed.
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