November 16, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NEVILLE GIBSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-037.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2009
Before Judges Skillman and Gilroy.
Defendant Neville Gibson appeals from his conviction of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). We affirm.
On May 25, 2008, at approximately 4:00 a.m., Patrolmen Stephen Aretz and Richard Vnencak of the Boonton Police Department found defendant asleep behind the wheel of his motor vehicle in the drive-thru lane of a McDonald's Restaurant. The motor vehicle's transmission was in park, with its engine running and lights on.
After Patrolman Aretz woke defendant by knocking on the driver's side window, defendant responded and lowered the window. While conversing with defendant, Aretz detected an odor of alcoholic beverage emanating from defendant's breath and observed that defendant's eyes were bloodshot and watery. During their conversation, defendant admitted to consuming three beers prior to driving the motor vehicle to the restaurant. On exiting the motor vehicle, Aretz observed that defendant swayed when walking and standing, and that his face was flushed. After defendant failed to satisfactorily perform several field sobriety tests, Aretz formed an opinion that defendant was under the influence of alcohol and arrested him for DWI.
On arrival at police headquarters, Patrolman Vnencak administered the alcotest to defendant. Defendant provided two samples that resulted in a blood alcohol concentration (BAC) reading of .12%. The police issued defendant a summons for DWI and for reckless driving, N.J.S.A. 39:4-96.
On trial in the Denville Municipal Court, defendant was found guilty of DWI, but was acquitted of the reckless driving charge. Because this was defendant's second conviction for DWI, the court suspended defendant's driving privileges for two years; imposed an $850 fine; and directed defendant to serve: forty-eight hours at an Intoxicated Driver Resource Center, thirty days of community service, and ten days in the Morris County Sheriff's Labor Assistance Program. The court also imposed all required assessments, penalties, and costs.
Tried de novo in the Law Division, Judge Dangler rendered an oral opinion on January 12, 2009, finding defendant guilty of DWI and imposing the same sentence as the Municipal Court. The court entered a confirming order of judgment on January 16, 2009. On appeal, defendant argues that we should reverse because: 1) the transcriber of the Municipal Court proceedings could not discern what had been said at various times during the trial; 2) the Municipal Court expressed a bias toward defendant; and 3) the State failed to prove the DWI charge by proof beyond a reasonable doubt.
Appeals from the Municipal Court to the Law Division are de novo. R. 3:23-8(a). The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge must make his or her "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983).
Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J. 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162) (alteration in original). We will only disturb a trial court's finding when we are satisfied that it "is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162. It is only under those circumstances that we " should appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid.
We have considered defendant's arguments in light of the record and applicable law. We are satisfied that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Dangler in his oral decision of January 12, 2009. Nevertheless, we add the following comments.
Defendant does not contest the alcotest result which, by itself, supports the trial court's conclusion that defendant operated his motor vehicle while under the influence of alcohol. N.J.S.A. 39:4-50(a); State v. Kashai, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). A violation of the statute by operating a motor vehicle with a BAC of 0.08% or more is a per se offense. State v. Romano, 355 N.J. Super. 21, 28 (App. Div. 2002).
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