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State of New Jersey v. Richard Hamersky

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 10, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD HAMERSKY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 26-09-C-T13.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 7, 2010 - Decided

Before Judges Baxter and Koblitz.

Following a trial de novo in the Law Division, defendant Richard Hamersky appeals from his January 15, 2010 conviction on a charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50. The judge imposed the required ninety-day suspension of defendant's driving privileges, which was stayed pending appeal.*fn1 We reject defendant's argument that the State's proofs failed to satisfy the pre-conditions for admitting the AlcoTest results in evidence, as we are satisfied the record supports the Law Division's conclusion that police waited the twenty minutes required by State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), before administering the test. We likewise reject defendant's argument that the police lacked probable cause to arrest him and subject him to the AlcoTest. We affirm.

I.

In the afternoon of December 2, 2008, defendant, a fifty-two year old certified public accountant, met a client in Englewood. At the conclusion of the client meeting, he drove to a social club in Carteret, of which he was a member. While there, he consumed, by his own admission, two and one-half bottles of beer over a three-hour period, although he insisted that such consumption had in no way interfered with his ability to operate his vehicle safely. On his way home, defendant was driving behind a vehicle operated by Joseph Mitchell. Defendant believed Mitchell was driving too fast, and wanted to tell him to slow down. Defendant denied tailgating Mitchell's vehicle, insisting that he remained approximately nine car lengths behind it.

Mitchell, age twenty, testified that as soon as he pulled onto Amsterdam Road in Hillsborough, defendant began tailgating him by driving "about a foot away from [his] bumper." Mitchell raised his middle finger at defendant and both vehicles pulled to the side of the road, where a heated exchange occurred. Both men entered their vehicles, and, according to Mitchell, defendant continued to tailgate his vehicle. Not wanting defendant to know where he lived, Mitchell pulled over to the side of the road. Rather than continuing on his way, defendant chose to also pull over to the side of the road as well. Although Mitchell's and defendant's accounts of who began the physical altercation differ, Mitchell sustained no injuries. He admitted punching defendant several times in the face, causing bleeding. At that point, each man returned to his vehicle, driving no further. Mitchell also testified that as soon as he approached defendant he was able to smell alcohol on defendant's breath.

Mitchell telephoned his father, who in turn called police. Hillsborough Township Police Officer Christopher Kennedy arrived at the scene at approximately 11:17 p.m., finding Mitchell and defendant each seated in their respective vehicles. Approaching the driver's side of defendant's vehicle, Kennedy observed defendant "bleeding at the face." He offered defendant medical attention, which he said defendant declined.

As soon as Officer Kennedy began speaking to defendant, he detected an odor of alcohol emanating from inside the vehicle. Kennedy also observed that defendant's eyes were bloodshot, which he noted in his police report. Kennedy asked defendant where he had been prior to encountering Mitchell, to which defendant responded that he was coming from a business meeting. Defendant did not mention he had also been at a social club. He told Kennedy he had consumed one beer, later changing his answer to two. Kennedy immediately returned to his patrol vehicle to activate his motor vehicle recorder (MVR), which remained active for the forty-five minutes. After administering the alphabet test, the counting-backward test, the one-legged stand and the walk-and-turn test, Officer Kennedy concluded that defendant's performance on those tests was consistent with intoxication. He took defendant into custody and transported him to headquarters so that the AlcoTest exam could be administered.

Sergeant Charles Boyle, a certified AlcoTest operator, was on duty on December 2, 2008 when he was notified that Officer Kennedy had arrested an individual on suspicion of DWI and would be bringing the suspect back to headquarters for an AlcoTest.

Sergeant Boyle testified it was his "standard procedure" when notified that one of his officers would be transporting an individual to headquarters for the AlcoTest, to wait at the rear door "where they come in through the sallyport entrance" and watch the suspect until he or she is handcuffed to the bar.

When asked whether he had been observing defendant before beginning the AlcoTest, Boyle answered, "[the] minimal period of time is 20 minutes, [so] I observed the gentlem[a]n for 20 minutes from inside the room." Boyle explained:

I was directly in front of him the entire time and watched him during the 20 minute waiting period to make sure there was no regurgitation, burping, throwing up, things of that nature that would prevent me from getting an accurate reading.

When the twenty-minute interval had passed, Boyle administered the AlcoTest to defendant, which produced a breath test result of 0.08 percent blood alcohol content.

On cross-examination, Boyle identified the shirt defendant was wearing on the night in question, pointing to small stains that appeared to be blood. Boyle was certain that he had waited the required twenty minutes because he had "timed him on [his] watch for 20 minutes." When asked whether he had prepared a report specifying the time at which he started the observation and at what time it had ended, Boyle answered, "no - I make no report of that" because "[i]t's not part of our protocol."

Boyle also acknowledged that the Alcohol Influence Report he prepared specified that the first of the three breath tests was administered at 12:19 a.m.

On re-direct examination, Boyle was asked to identify a computerized dispatch report (CAD), which he defined as an "automated computer system that . . . documents all of the officer activities." He explained that any time an officer would "go to a call, arrive, clear, pull a car over, everything that they do is documented by a dispatch on what's called a computerated [sic] dispatch system." Boyle testified the CAD abstract report from that date reports defendant arriving at police headquarters at 11:55 p.m.

In an oral decision, after reviewing the MVR, the municipal court judge found that the alphabet test and counting backward test were performed "well" and there was "no slurring of any words." He noted that the position of the video camera prevented him from being able to observe the leg lift and heel-to-toe walking tests that had been conducted at the side of the road. The judge concluded that defendant's performance on the physical tests did not demonstrate an impairment sufficient to establish defendant's guilt on the DWI charge; however, he concluded that defendant's performance on those tests, when combined with the smell of alcohol on defendant's breath and his provocative behavior with Mitchell, were sufficient to establish probable cause for the arrest of defendant on the charge of DWI.

In the course of his oral decision, the municipal court judge made detailed credibility findings, finding defendant's testimony not credible, and Mitchell and Officer Kennedy to be credible. The judge provided several reasons why defendant was not credible, including defendant's failure to tell Officer Kennedy he was at a social club. The judge also remarked that defendant's testimony that he was nine or ten car lengths behind Mitchell made no sense "because why would Mitchell pull over if [defendant] was 9 to 10 car lengths behind." The judge also observed that defendant's claim, to have consumed only two and one-half bottles of beer over a three-hour period, was not compatible with a 0.08 percent BAC reading, and therefore reflected poorly on defendant's credibility.

Relying on the testimony of Sergeant Boyle and Boyle's description of the CAD report, the municipal court judge concluded that defendant arrived at police headquarters at 11:55 p.m., and the first test was administered at 12:19 a.m., twenty-four minutes later, yielding a 0.08 percent BAC. The judge found defendant guilty of DWI and imposed a driver's license suspension of three months and ordered defendant to pay the mandatory fines and penalties, which the judge set at the minimum of the range.

Defendant appealed his conviction to the Law Division. At the conclusion of the trial de novo, the Law Division judge issued a written opinion finding that police had probable cause to arrest defendant for DWI and that Sergeant Boyle had waited the required twenty minutes before administering the first AlcoTest examination. In the course of his opinion, the judge specifically noted that he deferred to the credibility determinations made by the municipal court judge.

On the issue of probable cause, the judge concluded defendant's admission that he had consumed alcoholic beverages, when coupled with the circumstantial evidence of defendant's aggressive behavior and his poor performance on the field tests, provided probable cause for defendant's arrest on a charge of DWI.

As for the AlcoTest, the judge concluded the State satisfied its burden of proving the admissibility of the AlcoTest by clear and convincing evidence. The judge pointed to Boyle's uncontroverted testimony that he had waited the required twenty minutes by timing it on his wrist watch, concluding from Boyle's testimony that during the twenty-four minutes between 11:55 p.m. and 12:19 a.m., Boyle did not observe any disqualifying actions, such as burping, regurgitating or ingesting any food. The judge also held that the CAD report, which showed that defendant arrived at headquarters at 11:55 p.m., provided objective evidence supporting Boyle's testimony that he had waited more than twenty minutes before beginning the test.

Noting that defendant had stipulated to the foundational requirements of the AlcoTest, and finding that Boyle had waited the required twenty minutes before beginning the test, the judge concluded that the AlcoTest result of 0.08 percent was admissible. Based upon that reading, the judge found a per se violation of N.J.S.A. 39:4-50. The judge imposed the same sentence the municipal court judge had imposed. As we have already noted, by order of this court, the driver's license suspension was stayed pending appeal.

On appeal, defendant raises the following claims:

I. THE STATE FAILED TO SATISFY ITS BURDEN OF ESTABLISHING THAT DEFENDANT WAS OBSERVED FOR TWENTY MINUTES BEFORE ADMINISTERING THE ALCOTEST (RAISED BELOW).

II. THE POLICE LACKED PROBABLE CAUSE TO ARREST DEFENDANT (RAISED BELOW).

II.

In a trial de novo in the Law Division, the judge is obliged to determine the case completely anew based on the record made in the municipal court, giving due regard, although not necessarily controlling weight, to the opportunity of the municipal court judge to evaluate the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). The judge in a trial de novo must make his or her own findings of fact based upon the record, limited to the record that was created in the municipal court. State v. Locurto, 157 N.J. 463, 472 (1999).

In our review of the Law Division's findings of fact, we are obliged to affirm so long as those findings "could reasonably have been reached upon sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. We should not alter the Law Division's factual findings merely because we might have reached a different conclusion. Ibid. Only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then . . . should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid.

We turn to Point I, in which defendant maintains that the trial judge erred by concluding that the State satisfied its burden of establishing that defendant was observed for twenty minutes before the AlcoTest was administered. He maintains that because Officer Kennedy testified that he did not arrive at the scene until 11:17 p.m., and the municipal court estimated that the MVR lasted for forty-five minutes, defendant could not have arrived at headquarters with Officer Kennedy until 12:02 a.m. at the earliest. Therefore, according to defendant, the twenty-minute observation period would have elapsed no earlier than 12:22 a.m. Because the AlcoTest commenced three minutes before that, at 12:19 a.m., the AlcoTest results should not have been admitted in evidence.

We have no quarrel with defendant's argument that a twenty-minute observation period was required. As the Supreme Court held in Chun, supra, 194 N.J. at 79, "[o]perators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol." Moreover, the operator is obliged to observe the suspect for the required twenty-minute interval to ensure that nothing has occurred that would contaminate the test results, such as regurgitation, burping, or the chewing of gum or tobacco. Ibid. If any such observations are made, the AlcoTest operator "is required to begin counting the twenty-minute period anew." Ibid.

As we have already noted in finding that the twenty-minute observation period was satisfied, the Law Division judge credited Boyle's testimony that he was certain he had waited the required twenty minutes because, as was his usual custom, he counted down the time period by using his wristwatch. The judge also credited the CAD form that was admitted in evidence, which showed defendant arriving in the sallyport at 11:55 p.m. Boyle's undisputed testimony established that he observed defendant from the time defendant stepped out of the patrol vehicle in the sallyport, which was at 11:55 p.m., until the test began at 12:19 a.m. The judge observed that Officer Kennedy, who testified he initially arrived at the scene at 11:17 p.m., did not indicate that his timepiece was synchronized with the CAD, so his timing might have been off by a few minutes.

Consequently, we conclude there was ample evidence in the record to establish by clear and convincing evidence, see State v. Ugrovics, 410 N.J. Super. 482, 489-90 (App. Div. 2009), that more than twenty minutes elapsed while defendant was under observation and before the AlcoTest examination began. As there is sufficient and credible evidence in the record to support the Law Division's conclusion that the Chun requirements were satisfied, we have no occasion to disturb those findings. Locurto, supra, 157 N.J. at 474. We thus reject the claim defendant advances in Point I.

III.

We turn to Point II, in which defendant maintains the Law Division erred in concluding that Officer Kennedy had probable cause to arrest him for DWI and require him to submit to the AlcoTest. We note that probable cause does not require proof beyond a reasonable doubt, but instead requires only a well-grounded suspicion, based upon the totality of the circumstances, that an offense has been committed. State v. Novembrino, 105 N.J. 95, 122 (1987).

The Law Division judge relied upon four factors in finding probable cause: 1) the smell of alcohol emanating from defendant's breath; 2) his eyes were bloodshot; 3) his speech was rambling; and 4) he performed poorly on the psycho-physical tests. The record contains uncontroverted evidence supporting the first two of those observations. As to the rambling speech, Officer Kennedy conceded on cross-examination that the videotape did not depict rambling speech. As to the poor performance on the psycho-physical tests, we note that defendant had been punched in the head rather hard by twenty-year old Mitchell and was bleeding. We cannot determine what role defendant's injuries might have played in his less than perfect performance on the roadside tests. We are therefore not satisfied that the Law Division judge should have relied on those tests as a factor in the probable cause analysis.

Nonetheless, we are satisfied that, in combination, alcohol emanating from defendant's breath, his eyes being bloodshot, and his bizarre and belligerent behavior in tailgating another driver and provoking a fist fight with a man thirty-two years his junior, established probable cause to believe defendant was driving while under the influence of alcohol. We therefore affirm the Law Division's conclusion that probable cause was established, and reject the claim defendant advances in Point

II.

Affirmed. The stay of the driver's license suspension pending appeal is dissolved.


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