August 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARTHUR J. PATON, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. BMA: 010-06-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 29, 2008
Before Judges S.L. Reisner and LeWinn.
Defendant Arthur Paton appeals from a May 9, 2007 judgment of conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50.*fn1 The summons was issued on August 26, 1990, but the case was not tried until 2007 due to defendant's failure to appear. Defendant was convicted in municipal court and convicted by the Law Division on his de novo appeal. We affirm.
Preliminarily, we note that defendant has only ordered and provided to us the transcript of his trial de novo in the Law Division. He did not provide us with the transcript of the municipal hearing.
Based on the record provided to us, these are the most pertinent facts. Defendant was arrested after his girlfriend called the police to report that she and defendant had a fight. Defendant does not deny that he was operating his car when the police arrived on the scene. They observed defendant driving slowly and stopping at the curb, but he fled when he saw the officers. After the police searched for and finally located defendant, he became obstreperous, resisted arrest, and had to be handcuffed. Hence, the police could not administer the usual roadside sobriety tests.
The Law Division judge found the testifying police officers credible and concluded that there was sufficient evidence to support a finding that defendant was driving under the influence, based on the following factors:
. . . he was asked to perform the tests at the police station and refused, and that even without the tests, his watery eyes, his bloodshot eyes, his combative nature, his smelling of alcohol, the fact that he couldn't stand on his own, his overall appearance, the fact that he ran from the vehicle.
On this appeal, defendant first contends that Sergeant McNally, the arresting Maywood police officer, had a conflict of interest because McNally had sued defendant civilly based on alleged injuries defendant inflicted on the officer while resisting arrest. Hence, defendant claims the case should not have been heard in the Maywood Municipal Court. This argument is not properly before us because it was not presented to the Law Division. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973).
However, even if we consider the argument, it is without merit. There is no indication that the civil lawsuit was still going on in 2007 when this case was tried; in fact, defendant's brief indicates that "the suit was dropped." Hence, any conflict that may have justified transferring the case to the Paramus Municipal Court in 1990 no longer existed. Defendant was free to argue to the trial judge that McNally was a biased witness, but the fact that McNally had sued defendant in the past did not legally preclude McNally from testifying at the DWI trial.
Defendant also contends that McNally was not a credible witness. Because defendant has not provided us with the municipal court transcript, he has not perfected his appeal for purposes of this argument. However, we note that both the municipal judge and the Law Division judge, who had the municipal transcript to review, found McNally credible. Nothing in defendant's brief would justify departing from our ordinary legal obligation to defer to the trial judge's credibility determinations. See State v. Locurto, 157 N.J. 463, 474-75 (1999).
Finally, defendant argues that the loss of evidence during the construction of a new municipal complex in Maywood justifies reversing his conviction. However, defendant does not claim bad faith in the State's having lost its evidence of defendant's breathalyzer refusal and blood test results. And far from prejudicing defendant, the loss of the documents only weakened the State's case and in fact led to defendant's acquittal on a charge of refusing the breathalyzer test. See State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985). There remained, however, sufficient credible evidence to support the DWI conviction. See R. 2:11-3(e)(1)(A).