November 13, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE L. HUERFANO, JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5795.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2007
Before Judges Cuff and Simonelli.
Defendant, Jose L. Huerfano, Jr., appeals from his conviction for driving while intoxicated, contrary to N.J.S.A. 39:4-50; and refusal to submit to a breathalyzer test, contrary to N.J.S.A. 39:4-50.2.*fn1
On appeal, defendant argues:
THE EVIDENCE SUBMITTED TO THE LAW DIVISION IS INSUFFICIENT TO SUPPORT A GUILTY FINDING TO THE CHARGE OF DRIVING WHILE INTOXICATED.
THE EVIDENCE SUBMITTED TO THE LAW DIVISION IS INSUFFICIENT TO SUPPORT A FINDING OF GUILT TO THE REFUSAL CHARGE GIVEN OFFICER KAUFER'S [SIC] FAILURE TO READ MR. HUERFANO THE SECOND PART OF THE STANDARD STATEMENT.
A trial was held in municipal court in the City of Linden. Police Officer Joseph Kaufers testified that at about 11:00 p.m. on March 30, 2006, he observed defendant drive through a red light, turn left, continue driving at a high rate of speed, and go through a stop sign without slowing down, causing a pick-up truck to stop short to avoid hitting defendant's vehicle. Kaufers followed defendant and initiated a motor vehicle stop. Shortly after stopping defendant, the pick-up truck came to the location of the stop. Kaufers noticed the passenger in the pick-up truck had a head injury as a result of hitting her head on the windshield.
Kaufers approached defendant's vehicle and asked for his credentials. Kaufers observed defendant fumbling through his credentials and noticed his eyes were watery and bloodshot and his speech was slurred. Kaufers also detected a strong odor of alcoholic beverage coming from defendant's breath when he spoke. When Kaufers asked defendant if he had any alcoholic beverages that night, defendant said he had two drinks. Kaufers then called for backup. Police Officer Anthony Lordi responded to the scene. Kaufers asked Lordi to do sobriety tests on defendant so he could attend to the injured passenger.
Lordi testified he came to the scene, approached defendant, and asked him how he was feeling and if he was suffering from any illness or injury. Defendant said he was fine. In response to Lordi's questions, defendant stated he was coming from a bar, had a few drinks, left the bar at around 9:00 p.m., and came directly to the location of the stop. He was unable to account for his whereabouts between 9:00 p.m. and 11:00 p.m. In addition, while speaking to defendant, Lordi detected a strong odor of alcoholic beverage coming from his breath and noticed his eyes were glassy. Lordi also observed defendant had a difficult time getting out of his vehicle and swayed while walking.
Lordi conducted standardized field sobriety testing on defendant. Despite acknowledging that he understood Lordi's instructions, defendant did not follow them. Defendant also failed to perform the tests properly. All of this indicated to Lordi that defendant was intoxicated.
Defendant was arrested for driving while intoxicated and transported to Linden police headquarters where Kaufers read defendant his Miranda*fn2 rights. Kaufers also read paragraphs one through eleven of the Drinking Driving Report from the New Jersey Motor Vehicle Commission of Standard Statement for Operating a Motor Vehicle regarding the consequences of refusing to submit to a breathalyzer test. Kaufers then asked defendant if he would submit to a breathalyzer test. Defendant responded, "No." Defendant did not indicate he wanted to speak to an attorney or did not understand what Kaufers was saying. Kaufers then explained to defendant "a couple [more] times" he "could get issued another ticket for refusal." After Kaufers explained some of the penalties defendant might face for refusing to submit to a breathalyzer test, defendant responded, "I'm not taking it."
Municipal court judge Louis Dileo found Kaufers's testimony "to be very truthful and accurate" and Lordi's testimony to be "reliable and truthful" and "extremely credible." Judge Dileo also did not find inconsistencies between the officers' testimony. After making specific findings of fact, the judge found defendant guilty of all charges. Since this was defendant's second conviction for driving while intoxicated, the judge suspended his driving privileges for two years and ordered him to serve eighty days in jail and thirty days of community service. For refusal to submit to a breathalyzer test, the judge suspended defendant's driving privileges for two years and ordered him to perform a concurrent thirty days of community service. For all charges, the judge assessed the appropriate fines, costs and assessments.
Defendant appealed to the Law Division from his conviction for driving while intoxicated and refusal to submit to a breathalyzer test. Judge Wertheimer conducted a trial de novo on the record. On November 9, 2006, the judge issued a written opinion finding Kaufers's and Lordi's testimony and other non-disputed evidence was sufficient to establish probable cause to arrest defendant for driving while intoxicated. The judge also found Kaufers sufficiently made known to defendant the consequences of refusing to submit to a breathalyzer test.
On appeal from the municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). Although the Law Division must make independent findings of fact and conclusions of law, it is bound by the evidentiary record of the municipal court and must give due regard to the opportunity of a municipal judge to access the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964); State v. Loce, 267 N.J. Super. 102, 104 (Law. Div. 1991), aff'd o.b. 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993).
On appeal from a Law Division decision, the issue is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. Johnson, supra, 42 N.J. at 162. However, as with the Law Division, we are not in a good position to judge credibility, and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1998). We should give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
Based upon these standards, we conclude there is more than sufficient credible evidence in the record to support Judge Wertheimer's decision.