June 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES JUGLA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Appeal Number 1-1-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2008
Before Judges Lisa and Simonelli.
After a trial de novo in the Law Division, defendant Charles Jugla appeals from his conviction for driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50(a), and his accompanying sentence as a second-time offender pursuant to N.J.S.A. 39:4-50(a)(2). On appeal, defendant presents the following contentions:
The Law Division Improperly Found The Defendant Guilty of DWI.
The Law Division Erred By Sua Sponte Imposing A Harsher Sentence Than Imposed In The Municipal Court.
Based upon our review of the record and applicable law, in light of defendant's contentions, we affirm.
On February 8, 2006, at approximately 7:57 p.m., police officer Thomas Toland of the Cape May Police Department observed approximately one-half of defendant's vehicle travel over a center double yellow line on two occasions. Toland stopped defendant, and noticed a strong odor of alcoholic beverage on defendant's breath. The officer also observed that defendant's face was flushed, his eyes were watery and bloodshot, his eyelids were droopy, and his speech was slow and slurred.
Defendant initially denied consuming any alcoholic beverage, but then admitted having one drink after the officer said he detected an odor of alcoholic beverage on defendant's breath. Defendant later admitted he drank three or four glasses of Absolut vodka and club soda twenty to thirty minutes apart from 5:15 p.m. to 7:30 p.m.
Defendant advised Toland he was able to perform field sobriety tests. However, he was unable to properly recite the alphabet from B to T and count backwards from 94 to 69. He also could not stand on one leg, walk and turn, or walk heel to toe.
Toland arrested defendant and transported him to the police station. Defendant admitted he was not sick, but was under a doctor's care and taking medication;*fn1 and he was not injured, although he had pain in his legs from cutting down trees, which he later claimed made his legs sore and hindered his performing the physical tests. Toland administered a breathalyzer test at 9:00 p.m., which rendered a .08 reading, and one at 9:09 p.m., which rendered a reading of .08.
A City of Cape May municipal judge found Toland's testimony "credible and believable," and determined the breathalyzer test results were admissible. However, the judge determined the reading was .07 and did not find a per se violation based upon State v. Slinger, 281 N.J. Super. 538 (App. Div. 1995). Pursuant to State v Sisti, 209 N.J. Super. 148 (App. Div. 1896), the judge concluded beyond a reasonable doubt that, based upon the totality of circumstances, including the .07 reading and defendant's failure to properly perform the alphabet and counting tests, defendant was under the influence at the time he operated his vehicle. The judge also noted that, despite defendant's claim about cutting down trees, defendant said he could perform the physical field sobriety tests and understood the officer's instructions. The judge determined that "[t]his was a close case," and imposed a two-year suspension of his driver's license; a one-year suspension of his registration privileges; forty-eight hours at the Intoxicated Driver Resource Center (IDRC); and imposed the appropriate fines and assessments. The sentence was stayed pending appeal to the Law Division.
On appeal to the Law Division, Judge Batten made detailed, independent findings, and concluded as follows:
The officer, therefore, was well within his right to ask the Defendant to exit his vehicle and conduct the psycho-physical or balance tests. And the Defendant performed, as Judge Tourison found below, woefully. Again, there may be some indication in the record that the Defendant explained to Toland that he was sore from having been chopping wood earlier in the day, but that does not explain the inability of the Defendant to count backwards from 94 to 69 without mixing up the numbers, the inability to recite the alphabet from B through T, the inability to stand on certainly one leg, the inability to perform the walk and turn test. So, the performance on the psycho-physical tests this Court characterizes as woeful and coupled with the observations of Toland as to the Defendant's appearance, the detection of the odor of alcohol, the changing versions offered by the Defendant to Officer Toland, at least here, certainly justified the arrest of the Defendant and his being taken to the police department, along with the administration of the breathalyzer tests. This Court finds on that evidence alone, setting aside the two breathalyzer tests results, and beyond any reasonable doubt, that this Defendant, at the time of the operation, approximately 7:57 p.m., on February 8, 2006, was operating his motor vehicle under the influence of -- while under the influence of alcoholic beverage to such a degree that his ability to operate was deleteriously affected. There's nothing in the record that explains, justifies or even mitigates the transgression of the automobile crossing the double solid lines.
There's some attempt through cross-examination to perhaps mitigate the extent of the transgression, but the Court finds that it was certainly notable and of sufficient degree as warranted the stop of the motor vehicle. So, the Court first finds operation of the motor vehicle by this Defendant in violation of 39:4-50 to such deleterious affect beyond any reasonable doubt.
Judge Batten disagreed that this was a close case, and sentenced defendant as a second-time offender to two days in jail; imposed a two-year suspension of his driver's license and registration privileges; and imposed the appropriate fines, assessments and penalties. The judge also ordered defendant to serve thirty days community service and forty-eight hours in the IDRC. The judge denied defendant's motion for a stay and to withdraw the appeal.
Defendant contends that he could not have been convicted based upon his crossing the double yellow lines and the results of his field sobriety tests. We disagree.
On appeal from the municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court, and must give due regard to the opportunity of the municipal court judge to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). 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. Id. at 162. However, as with the Law Division, we are not in as good of a position as the municipal court judge to determine credibility, and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting Johnson, supra, 42 N.J. at 161-62). We "do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). 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 and our review of the record, we conclude there is sufficient credible evidence to support Judge Batten's finding that defendant was guilty beyond a reasonable doubt of violating N.J.S.A. 39:4-50. Defendant's erratic operation of his vehicle, Toland's observations of defendant, defendant's admission to the consumption of alcohol, and defendant's inability to properly perform field sobriety tests, were sufficient to convict him of DWI. See State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.) (holding that "observational evidence" may be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI"), aff'd, 293 N.J. Super. 535 (App. Div. 1996); see State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993) (holding that defendant's slurred speech, loud and abusive behavior, disheveled appearance, red and bloodshot eyes, together with the strong odor of alcohol, were sufficient to sustain a DWI conviction).
Defendant's challenge of his sentence is with merit. He cites no authority permitting him to withdraw his appeal in the Law Division after he was found guilty of DWI and before the judge imposed sentence. This was an obvious ploy to attempt to avoid imposition of a sentence less favorable than that imposed in the municipal court, but statutorily mandated.
Ordinarily, the Law Division may not impose a greater sentence than that imposed in the municipal court. State v. Kashi, 180 N.J. 45, 49 (2004). However, double jeopardy principles do not preclude correction of an illegal sentence. State v. Baker, 270 N.J. Super. 55, 72-77 (App. Div.), aff'd o.b., 138 N.J. 89 (1994). The sentence imposed by the municipal court judge on this second offense did not comport with that mandatorily required by N.J.S.A. 39:34-50(a)(2). The judiciary has an "obligation to enforce a legislatively mandated sentence," and "[a]n illegal sentence may be corrected at any time." State v. Nicolai, 287 N.J. Super. 528, 531 (App. Div. 1996). Defendant had no legitimate expectation of finality in a sentence below the statutory minimum. Id. at 532. The issue of defendant's sentence was properly before the Law Division by virtue of defendant's appeal, seeking a trial de novo, and the Law Division judge did not err in imposing the sentence mandated by N.J.S.A. 39:4-50(a)(2).