August 11, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NAIM SHAKUR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 060-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 2, 2010
Before Judges Fuentes and Simonelli.
Defendant Naim Shakur was originally tried before the Atlantic City Municipal Court and found guilty of driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50, refusal to submit to the Alcotest, N.J.S.A. 39:4-50.2(a), obstructing traffic,*fn1 N.J.S.A. 39:4-67, and reckless driving, N.J.S.A. 39:4-96. The Municipal Court also denied defendant's motion to suppress evidence gathered by the State pursuant to the motor vehicle stop.
After merging the obstructing traffic conviction and the reckless driving charge with the DWI offense, the Municipal Court suspended defendant's driving privileges for two years for the DWI conviction. This was defendant's second DWI conviction.
The judge imposed a consecutive two-year suspension of his driving privileges for the refusal conviction. The court also imposed the mandatory fines and penalties, ordered defendant to install an ignition interlock device on his car for a period of one year, required defendant to perform thirty days of community service, and ordered him to serve forty-eight hours at the Intoxicated Driver Resource Center.
Defendant appealed to the Law Division for a trial de novo pursuant to Rule 3:23-1. After conducting an independent review of the record developed before the Municipal Court and considering the arguments of counsel, Judge Neustadter found defendant guilty of the charges outlined herein and imposed the same sentence as that imposed by the Municipal Court.
We gather the following facts from the evidence presented before the Law Division.
At approximately 3:40 a.m. on September 27, 2008, Atlantic City Police Officer Maria Pali was on patrol driving east on Arctic Avenue, a one-way three-lane road with a lane designated for left-hand turns onto Arkansas Avenue. As she approached the intersection of Arctic and Arkansas, Pali stopped directly behind a car that was waiting at a red traffic light. When the traffic light turned green, the car in front of Pali's police vehicle did not move. Pali waited as the light turned red and then green again; the car in front of her remained at the light without moving.
After this, Pali activated her police car's overhead lights, got out of her car, and approached the stationary vehicle. As she reached the driver-side of the car, Pali saw defendant slumped over the steering wheel. Pali asked defendant: "Sir are you okay?" two times without receiving a response; the third time, defendant woke up, looked at her, then looked straight ahead and drove away. Pali immediately yelled for defendant to stop, which he did. According to Pali, defendant claimed that he was tired.
At this point, two other Atlantic City Police Officers arrived at the scene. Pali then asked defendant to step out of the car; defendant appeared disoriented and had trouble standing upright. Defendant had an odor of alcohol on his breath and appeared unaware of his surroundings.
Officer Michael O'Hala asked defendant to perform a series of field sobriety tests to assess his motor skills. Defendant was unable to perform any of the tests as instructed by the officer. The tests, which are described in detail in Judge Neustadter's oral decision, included the walk-and-turn test, the balance test, the horizontal gaze nystagmus test, and the finger-to-nose test. Based on the totality of the circumstances, the police arrested defendant for DWI and transported him to the police station to administer the Alcotest. While on route to the station, defendant became very emotional and began to cry.
Once at the station, the officer administering the Alcotest read to defendant the standard form advising him, inter alia, that he did not have the right to refuse to take the test, nor did he have the right to have his attorney present before the test was administered. When the officer asked defendant: "Now will you submit the samples of your breath?", defendant answered: "No, not without my lawyer." The officer then read to defendant the standard follow-up statement advising him of the consequences of his refusal. When asked again whether he would provide the breath samples, defendant again answered: "I will not."
Defendant's arguments before the Law Division challenged Pali's account of her initial encounter with defendant. Judge Neustadter rejected defendant's arguments and accepted the State's witnesses' account of events as a matter of credibility, giving due deference to the Municipal Court Judge's ability to observe the witnesses as they testified. State v. Johnson, 42 N.J. 146, 157 (1964).
Against this record, defendant now appeals from the judgment of the Law Division raising the following arguments:
THE LAW DIVISION SHOULD HAVE FOUND THAT APPELLANT'S CAR STOP WAS UNREASONABLE. THE TRIAL COURT SHOULD HAVE ALLOWED AN EVIDENTIARY FRANKS*fn2 HEARING TO DEVELOP THE RECORD OF PALI'S CONTRADICTORY RECOLLECTIONS OF HER PREVIOUS ENCOUNTER WITH APPELLANT THE NIGHT BEFORE
THE COURT'S DENIAL OF THE SUPPRESSION MOTION IS REVERSIBLE ERROR
THE TRIAL COURT'S RELIANCE ON THE RESULTS OF THE PSYCHOPHYSICAL TESTS WAS ERROR, ESPECIALLY IN LIGHT OF THE LAW DIVISION'S DETERMINATION THAT OFFICER O'HALA WAS NOT QUALIFIED TO GIVE ONE OF THE TESTS
THE COURT ALLOWED OFFICER O'HALA TO RENDER AN "EXPERT" OPINION REGARDING APPELLANT'S BEING IMPAIRED (SIC) WITHOUT BEING QUALIFIED AS AN EXPERT
IN CONSIDERING THE "DIVIDED ATTENTION" TESTS, THE COURT SHOULD HAVE CONSIDERED APPELLANT'S NOT HAVING BEEN IMPAIRED, RATHER APPELLANT WAS TIRED, AS WELL AS ANGRY AND UPSET BECAUSE OF HIS (SIC) BEING HARASSED
THE COURT'S ALLOWING S-1 INTO EVIDENCE WITHOUT THE COURT'S PERMITTING APPELLANT'S ATTORNEY TO VOIR DIRE THE STATE'S WITNESSES REGARDING S-1 WAS ERROR
THE COURT ALLOWED QUASI-EXPERT OPINION BY DETECTIVE CRUSE REGARDING APPELLANT'S DRIVING WHILE INTOXICATED WITHOUT ANY FOUNDATION THAT HE WAS AN "EXPERT" AND WAS QUALIFIED AS SAME
THE COURT'S DENIAL OF APPELLANT'S REYES*fn3 MOTION
APPELLANT HAD A GOOD FAITH BASIS TO ARGUE THAT HIS ALLEGED FAILURE TO PROCEED WHEN THE TRAFFIC LIGHT TURNED GREEN COULD HAVE BEEN TO AVOID "GRIDLOCK"
APPELLANT HAD A GOOD FAITH BASIS TO ARGUE THAT APPELLANT WAS NOT ASLEEP AT THE WHEEL ON THE NIGHT IN QUESTION
THE APPELLATE DIVISION SHOULD DETERMINE THAT THE STATE'S WITNESSES, PALI AND O'HALA, WERE NOT CREDIBLE
THE STATE IMPROPERLY COMMENTED IN THE LAW DIVISION APPEAL ON APPELLANT'S FAILURE TO CALL WITNESSES AS DID THE TRIAL COURT
THE LAW DIVISION SHOULD HAVE GRANTED APPELLANT'S REQUEST THAT THE FORM OF ORDER AFFIRMING APPELLANT'S CONVICTIONS CONTAIN THE REFUSAL CONVICTION FIRST, AND THE DWI CONVICTION SECOND
EVEN IF THE COURT FINDS THAT EACH OF THE ABOVE POINTS, INDIVIDUALLY, IS NOT SUFFICIENT TO REVERSE APPELLANT'S CONVICTIONS, THE CUMULATIVE EFFECT OF SAME ERRORS SHOULD COMPEL THE COURT TO ENTER SAME REVERSAL
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). There is substantial evidence supporting the Law Division's findings and ultimate conclusions. State v. Locurto, 157 N.J. 463, 469-71 (1999). We thus affirm substantially for the reasons expressed by Judge Neustadter.