On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-02-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2010
Before Judges R. B. Coleman and Lihotz.
Defendant Bryan Hakim was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50, failure to report an accident, N.J.S.A. 39:4-130, and leaving the scene of an accident N.J.S.A. 39:4-129. Prior to trial in the Cresskill Municipal Court, defendant moved to suppress the breathalyzer readings, the use of horizontal gaze nystagmus (HGN) test, his statements to police at the scene and one piece of physical evidence. After a hearing, the municipal court did not consider the breathalyzer results, limited the use of the HGN test solely for the purpose of probable cause and suppressed the physical evidence. Defendant's motion to suppress his statements to police was denied. Trial commenced. In support of its case, the State presented testimony from the arresting officers, who recounted their observations at the scene of the accident, including the condition of defendant's vehicle, defendant's physical appearance, actions and performance on field sobriety tests. The municipal court convicted defendant of DWI and failure to report, but acquitted him of leaving the scene of the accident. Defendant appealed.
In the trial de novo in Superior Court, R. 3:23-8(a), defendant again sought suppression of his statements asserting a violation of his Miranda*fn1 rights. The court agreed in part, suppressing those statements made following the field sobriety tests, but not defendant's comments made upon first encountering the officers. After its review of the remaining evidence, the court convicted defendant of DWI and failure to report the accident, and imposed the same sentence as the municipal court.
On appeal, defendant argues:
THE LAW DIVISION ERRED IN CONCLUDING THAT THE RECORD CONTAINED SUFFICIENT EVIDENCE, EVEN AFTER THE SUPPRESSION OF CERTAIN STATEMENTS, TO CONCLUDE THAT DEFENDANT WAS GUILTY OF DRIVING WHILE INTOXICATED.
THE POLICE LACKED PROBABLE CAUSE TO ARREST MR. HAKIM FOR A SUSPECTED VIOLATION OF N.J.S.A. 39:4-50.
Following our review of these arguments, in light of the record and the applicable law, we conclude the Law Division judgment is firmly supported by sufficient credible evidence. We affirm defendant's conviction and sentence.
The arresting officers, Sergeant Mark Hirsch and Jason Lanzilotti, testified that at 4 a.m. on June 1, 2007, while in Cresskill police headquarters, they heard a loud noise, which sounded like an automobile crash. Traveling west toward the sound, the police headed to Union Avenue. Along the right curb line, they found a knocked over streetlight standard, a crushed planter and a trash can, which had been run over, spreading its contents over the roadway. The police began investigating and at 4:30 a.m., located a black Cadillac Escalade parked in the Cresskill Pizza parking lot, with a flat right front tire, dirt imbedded on the right wheel rims, damage to the front right wheel rim, and dents on the vehicle's right fender.
Defendant was standing near the Escalade. He apologized when he saw the officers stating, "I fucked up." When asked what that meant, defendant admitted, "I fell asleep while I was driving." Detecting an odor of alcohol emanating from defendant's breath, the officers ...