January 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDMOND D. JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. 07-113.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2008
Before Judges Gilroy and Chambers.
On January 27, 2007, a police officer saw a vehicle driven by defendant Edmond D. Johnson make two consecutive turns without making the proper signal and stop once in the middle of the road. He pulled the vehicle over and observed that defendant appeared to be intoxicated, noting the strong smell of alcohol and defendant's slurred speech, bloodshot, watery eyes, and droopy eyelids. The officer conducted field tests that were also indicative of intoxication. Defendant was unable to produce his driver's license, registration card, and proof of insurance. He was generally uncooperative, refusing to provide identifying information such as his address and social security number. The officer found an open bottle of Merlot wine in the vehicle next to the driver's seat. At the police station, defendant refused to take the breathalyzer test.
After denying defendant's motion to suppress, the municipal court judge proceeded to trial.*fn1 The State presented the testimony of the arresting officer and a videotape, which was marked into evidence. Defendant was represented by counsel at the hearing, but presented no witnesses or evidence.
The municipal court judge found defendant guilty of failure to give a proper signal, N.J.S.A. 39:4-126; failure to exhibit documents, N.J.S.A. 39:3-29; consumption of alcohol by a driver, N.J.S.A. 39:4-51a*fn2; driving while intoxicated, N.J.S.A. 39:4-50; and refusal to take a breathalyzer test, N.J.S.A. 39:4-50.2. The municipal court judge dismissed the charges for reckless driving, N.J.S.A. 39:4-96, and careless driving, N.J.S.A. 39:4-97.
Since this was defendant's sixth offense for driving while intoxicated, he was sentenced as a subsequent offender to 180 days imprisonment in the county jail, ten years loss of his driver's license, forty-eight hours at the Intoxicated Driver Resource Center (IDRC), a $1,006 fine, $33 in court costs, a $200 driving while intoxicated (DWI) enforcement surcharge, a $75 Safe Neighborhood penalty, and a $50 Violent Crimes Compensation Board (VCCB) fee. On the conviction for refusing to take the breathalyzer test, defendant's second conviction for this offense, the municipal court judge sentenced defendant to an additional two years loss of license, forty-eight hours at IDRC, a $506 fine, $33 in court costs, and a $200 DWI enforcement surcharge. On the remaining charges, defendant received the following sentences: failure to exhibit documents, a $156 fine and $33 in court costs; failure to give a proper signal, a $76 fine and $33 in court costs; consumption of an alcoholic beverage by a driver, a $206 fine and $33 court costs. The municipal court judge stayed the jail sentence pending appeal.
On appeal to the Law Division, Judge Neafsey conducted a trial de novo, and he similarly concluded that the evidence sustained a finding of defendant's guilt on the above charges, with one exception. He found defendant not guilty of the charge of consuming an alcoholic beverage as a driver, N.J.S.A. 39:4-51a. Judge Neafsey then imposed the same sentences as that imposed by the municipal court judge, and stayed imposition of the jail term pending appeal.
On appeal to this court, defendant raises the following issues:
THE TRIAL JUDGED [sic] ERRED IN NOT REQUIRING THE STATE TO PROVE DEFENDANT'S IDENTITY.
THE TRIAL JUDGE ERRED IN FAILING TO REQUIRE THE STATE TO PRODUCE A CERTIFIED ABSTRACT OF DEFENDANT'S DRIVING RECORD AS PROOF OF HIS PRIOR DWI CONVICTIONS.
THE COURT ERRED IN FINDING THAT THE DEFENDANT WAS INTOXICATED BECAUSE SUCH A FINDING COULD NOT HAVE REASONABLY BEEN REACHED FROM THE CREDIBLE EVIDENCE PRESENTED IN THE RECORD.
THE COURT ERRED IN FINDING THAT THE STOP OF THE DEFENDANT AS NOT PRETEXTUAL BECAUSE NO TRAFFIC WAS EFFECTED BY THE DEFENDANT'S FAILURE TO USE HIS TURN SIGNAL.
After a careful review of the record, including the arguments of counsel, we conclude that the issues raised in this appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for substantially the reasons set forth by Judge Neafsey in his comprehensive oral opinion of March 7, 2008.