May 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOCELYN MAC EVOY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-047.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Skillman and Fuentes.
Defendant appeals from the order of the Law Division finding her guilty of driving while intoxicated (DWI) based on an Alcotest blood alcohol content (BAC) reading of .08. N.J.S.A. 39:4-50(a)(1)(i). The court suspended defendant's driving privileges for three months and imposed the mandatory fines and penalties. The Law Division's decision was made pursuant to a do novo review of the record developed before the Lincoln Park Municipal Court. The State's case was predicated on the following facts.
On May 4, 2006, at approximately 2:30 a.m., Sergeant Thomas Carney of the Parsippany-Troy Hills Police Department was working at the front desk of police headquarters. The front desk where Carney was stationed is separated from the public area by a glass partition. At one point, Carney saw a man, later identified as Victor Columbo, and defendant seated in the lobby. Defendant was waiting for the release of her boyfriend who had been arrested on unrelated charges.
When Carney spoke to defendant through a window, he detected a strong odor of alcohol coming from her mouth; defendant's speech was also slow and slurred. When Carney asked defendant if she had driven to the station, she initially hesitated before answering, but then pointed to Columbo and said he was the one who drove her there. Suspicious of her answer, Carney directed Officer Remo D'Alessandro to monitor the station's parking lot to make sure that defendant was not the person driving when the individuals departed.
Thereafter, Carney left the front desk to find out some information on defendant's boyfriend. Defendant was not in the lobby when he returned. At around 2:50 a.m., D'Alessandro saw defendant as she was leaving the parking lot. According to D'Alessandro, defendant entered the driver's side of a car and began driving away without her headlights on. When his initial attempts at pulling over the car were unsuccessful, D'Alessandro activated the police vehicle's siren; defendant thereafter stopped her vehicle without further incident.
When D'Alessandro approached defendant, he detected a strong odor of alcohol emanating from her mouth; additionally, her speech was slurred, her eyes were bloodshot and watery, and her eyelids were droopy. D'Alessandro asked defendant to perform two separate field sobriety tests. The first test required defendant to stand on one leg while keeping the other leg elevated for thirty seconds. Defendant attempted to perform the test three times without success. She kept her leg elevated for just ten to twelve seconds and swayed and staggered when she put her leg down. The second test required defendant to walk heel-to-toe and turn. She was unable to do so without stopping and asking to start over; she also swayed and staggered during this test.
Based on these observations, D'Alessandro called Officer Alfred J. Keiser, an officer with great experience in administering a variety of field sobriety tests and the Horizontal Gaze Nystagmus (HGN) test. Keiser re-administered the two sobriety tests D'Alessandro had previously conducted and performed a HGN test.*fn1 Defendant again failed to perform the tests as instructed. Based on these findings, the officers arrested defendant for DWI and transported her to the police station to administer an Alcotest.
According to D'Alessandro, at police headquarters defendant was belligerent and disrespectful, using profanity in expressing her desire to "get out of here." Keiser described defendant as highly agitated and slurring her words when she spoke. Keiser took two breath samples from defendant using the Alcotest; her BAC reading was .08.
Although defendant's arrest took place in Parsippany-Troy Hills, venue was transferred to Lincoln Park. The record before us is not clear as to the reasons for the change in venue. According to defense counsel, the venue change was prompted by his letter to the Parsippany-Troy Hills municipal judge dated July 26, 2006, in which he claimed that Keiser had a number of prior encounters with defendant before her arrest for DWI. Without elaborating as to why the municipal judge may not be impartial, defense counsel asked the judge via this letter for a change in venue because his client [has] difficulty . . . believing that you[,] as the Judge and employee of the Township of Parsippany-Troy Hills[,] would find my client innocent and also, at the same time, in effect, find that the police officers of Parsippany-Troy Hills have conspired to harass and fabricate charges against [her].
In its appellate brief, the State does not directly respond to these allegations nor does it provide an alternative explanation for the change in venue. The case was thereafter transferred to Lincoln Park Municipal Court where it was tried to finality.
Defendant testified in her own defense. She denied consuming any alcoholic beverage that evening and claimed that she told Carney that she had a provisional driver's license and was not permitted to drive at that late hour. According to defendant, Carney told her to leave the station and "take [her] chances." In rebuttal, Carney denied defendant's allegations.
Against this record, defendant now appeals raising the following argument.
ALLOWING AN INTOXICATED MINOR TO LEAVE POLICE HEADQUARTERS TO DRIVE AND THEN IMMEDIATELY CHARG[ING] HER WITH D.W.I. IS ENTRAPMENT, THEREBY NECESSITATING THE DISMISSAL OF THE COMPLAINT.
We reject this argument and affirm. The record shows that both the municipal court and the Law Division rejected defendant's version of events as a matter of credibility. Specifically, the court did not believe defendant's testimony that Carney told her to leave the station and "take [her] chances."
Our role in reviewing the credibility findings of the trial court is well-settled. We are required to defer to the factual findings of the trial court when they are supported by competent credible evidence. State v. Johnson, 42 N.J. 146, 161-62 (1964). This "rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues." State v. Locurto, 157 N.J. 463, 474 (1999). Defendant's entrapment argument is thus lacking in factual support as a matter of law.
Finally, although not raised as an independent argument in her appellate brief, defendant argues that the Alcotest reading should be considered compromised because her defense counsel was not permitted to question Keiser about certain allegations that were reported in a local newspaper assailing his conduct in connection with an unrelated matter. Other than including a copy of this newspaper article as part of the appendix, defendant has not come forward with any competent evidence to support this argument. In short, there is nothing in this record that undermines the reliability of the Alcotest. Therefore, defendant's .08 BAC reading remains presumptively valid. State v. Chun, 194 N.J. 54, 148, cert. denied, ____ U.S. ____, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008).