On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Municipal Appeal No. 2008-4785.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 7, 2010
Before Judges Payne and Messano.
Defendant Nicholas Losquadro was convicted in the Clifton municipal court of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and making an unsafe lane change, N.J.S.A. 39:4-88(b). It was defendant's fifth conviction for DWI, and the judge sentenced him to 180 days in jail, suspended his license for ten years, imposed $1358 in fines and costs, and ordered the installation of an ignition inter-lock device for three years after restoration of defendant's license. On de novo appeal to the Law Division, defendant was again convicted of both offenses. The judge merged the unsafe lane change conviction into the DWI conviction and imposed the same sentence, although the judge permitted defendant to serve 90 days of the custodial sentence in an Intoxicated Driver Resource Center (IDRC) in-patient program and the balance in the county jail.
Before us, in a single point, defendant argues that the guilty verdict was "against the weight of the evidence." We have considered this argument in light of the record and applicable legal standards. We affirm.
We begin by noting that defendant misstates the standard of review we apply to a conviction resulting from a bench trial. Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2010). We do not "'weigh the evidence, assess the credibility of [the] witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Additionally,
Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. [Locurto, supra, 157 N.J. at 474 (citations omitted) (emphasis added).]
The Law Division judge, Donald J. Volkert, Jr., A.J.S.C., filed a comprehensive written opinion stating his findings of fact and conclusions of law based upon his de novo review of the record, which he quoted at length. Judge Volkert concluded that Clifton police officer Favio Toyos was dispatched to the westbound merge of Route 3 and Route 46 at approximately 4:25 p.m. on October 2, 2007. He "observed defendant's vehicle 'swerving in and out of traffic' . . . ." Defendant's car "'cut a pickup truck off'" causing the truck's driver to "'panic brake.'" Although Toyos activated his lights and siren signaling defendant to stop, defendant "'continued to accelerate'" and decrease speed as he "'swerved in and out of traffic.'" Defendant did not stop until Toyos had pursued him through Little Falls and into Totowa.
As he approached defendant's vehicle, Toyos "detected the strong smell of an alcoholic beverage." Defendant had difficulty shutting off his ignition, his speech was slurred, and his eyes were "watery [and] bloodshot." Officer Skidmore, who also responded, noted the strong smell of alcohol on defendant's breath.
Toyos administered field sobriety tests to defendant who was unable to recite the alphabet in full, claiming that he "did not know the rest" of the letters after M. Defendant mumbled during a second attempt and was only able to recite the letters from A to D. Defendant abjectly failed the balance test and the "heel-to-toe" test and was placed under arrest. Toyos opined that "defendant 'was definitely impaired' . . . [and] that [his] impairment affected his ability to safely operate a motor vehicle."
Skidmore's testimony corroborated much of Toyos's. At headquarters, Skidmore "observed defendant for approximately 20 minutes before he administered an Alcotest."*fn1 Skidmore "said it was obvious defendant was intoxicated."
Addressing defendant's argument "that the [S]tate did not meet its burden of proving that defendant operated his vehicle while being under the influence," Judge Volkert noted that evidence "regarding amounts, locations, time and circumstances surrounding the ingestion of alcohol . . . would have been helpful . . . in determining whether defendant was driving under the influence . . ., [but] its absence [wa]s not dispositive." The officers' opinions regarding defendant's state of intoxication were sufficient.
Judge Volkert next addressed defendant's claim that the field sobriety test results were "inconclusive evidence of operation under the influence." Citing State v. Ravotto, 169 N.J. 227, 242 (2001), for the proposition that "defendant's blood alcohol level is not required [to be proven] for an 'under the influence' conviction," the judge concluded that the tests Toyos employed were "ones that police officers commonly use to determine sobriety without a machine ...