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State of New Jersey v. James Fox


April 21, 2011


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-12.

Per curiam.


Argued April 5, 2011

Before Judges Carchman and St.John.

Following an unsuccessful motion to suppress in the Tinton Falls Municipal Court, defendant James Fox entered a conditional plea of guilty to a violation of driving while intoxicated, N.J.S.A. 39:4-50. The municipal judge sentenced defendant as a second offender to a license suspension of two years, a two-year revocation of registration, thirty days of community service as well as two days in jail to be served in the Intoxicated Driver Resource Center. In addition, defendant was assessed mandated fines and penalties. Defendant filed an appeal in the Law Division and following a de novo hearing on the motion to suppress, Judge Ronald L. Reisner denied the motion. He thereafter sentenced defendant to the same sentence imposed in the municipal court.*fn1 We affirm.

These are the facts adduced at the hearing on the motion to suppress. During the afternoon hours of February 28, 2009, Stephanie Alesi, then three and a half months pregnant, was a passenger in a vehicle operated by her husband,*fn2 proceeding northbound in the center lane on the Garden State Parkway.

Alesi, whose vehicle was traveling at a speed of sixty miles per hour, saw defendant's vehicle, which she identified as a "red Dodge Ram," in the left lane. She noted that defendant's vehicle was only "a few feet" behind the driver in front of him, and the vehicle was being driven erratically. As she characterized the operation of the vehicle, it "[j]ust [kept] speeding up, getting close to the person in front, then backing off. Speeding up, cutting across lanes. Just totally erratic." After she told her husband to "stay clear" of defendant, her husband "sped up a bit" to a speed of approximately seventy miles per hour, and they lost sight of defendant.

Approximately fifteen minutes later, Alesi and her husband were in the "second from the right lane" in light traffic when her husband said, "[O]h my God, what is this guy doing?" When she turned to look behind her, she saw defendant's vehicle. Defendant's vehicle then struck the Alesi vehicle "in the left rear driver's side." Mr. Alesi "immediately attempted to pull over, stunned," but they were struck by defendant's vehicle a second time, sending their car "completely out of control." According to Alesi, the vehicle spun several times, "[w]ent across the rest of the lanes and landed . . . in the [median] of the Parkway on the other side."

An off-duty police officer, Detective Frederick Soos, a former patrol officer, was also traveling on the Parkway at the same time and observed the operation of defendant's vehicle. According to Soos:

I was driving northbound on the Parkway. I'm not 100 percent sure of . . . exactly where I was. I know it was a couple of miles south of Exit 98.

I was in the left lane, and I recall seeing a red pickup truck come up behind me at a high rate of speed. And I remember saying to my father, who was sitting in the backseat, . . . pop, this guy's getting awful close to me.

And it was actually to the point where I actually couldn't see his lights in my rearview mirror. And . . . I saw him swerving back and forth, unable to maintain the lane.

And I remember I was a little nervous because I couldn't get over [to a new lane]. . . . And I was actually worried that he was going to strike me.

I noticed him come behind me, and he was having trouble maintaining the lane. He was . . . going all over the road, all over the lane. A couple of times he actually swerved to the point where he was over on the shoulder.

And I remember seeing sand and dust kick up from him . . . almost going on the median. As soon as I could, I sped up a little bit and I tried to get over. Because I remember just wanting to get away at that point, get him so he wasn't near me.

I remember moving over to the middle lane so I could kind of keep a distance from him. And at that point he was able to get past me. And I observed him, he was . . . all over the road.

He would go from the left lane all the way over to the right lane, you know, back to the left lane. He would slow down, speed up, slow down, speed up, weaving in and out of traffic for the period of a couple miles.

Soos called 9-1-1 to report that defendant was "driving recklessly." Although he lost sight of defendant during "a couple periods," Soos followed defendant for several miles. According to Soos, defendant left the Parkway at Exit 98, then reappeared "[m]aybe a minute or so later."*fn3 After "a space of a couple more miles," Soos drove "over the crest of a hill" and saw that an accident had occurred. Soos then stopped to offer assistance:

Q. Okay. Did you pull over at that point?

A. At that point I did. I was in the middle lane. . . . I stopped my car maybe 50 feet or so behind the vehicle, the red pickup truck, and encountered [defendant].

Q. Okay. Did you have a conversation with [defendant]?

A. Yeah, he had gotten out of his truck and was walking northbound on the east side of the Parkway there. At that point I grabbed him by the back of the shirt. I told him I was a police officer and I told him to stay put with his vehicle till the State Police arrived.

Q. As a police officer who has had training in motor vehicle stops and DWIs,*fn4

did you have any opinion as to the state of this individual?

A. I mean, when I encountered him I smelled the odor of alcohol. . . . [I]t wasn't my place to investigate any further than that. But I did detect an odor of alcohol emanating from the individual.

New Jersey State Trooper Sean Link was on patrol and had received "multiple calls on the radio in reference to [an] erratic driver, driving a red pickup truck." He was also informed that the truck had left the Parkway at Exit 98, then reentered the Parkway. By the time Link found the truck, the accident had already occurred, and he approached the vehicle to question defendant. Defendant "was on the phone" but indicated that he was coming from the "Polar Plunge" in Seaside Heights, New Jersey.

Link spoke with Soos (who he identified as an off-duty officer from Kenilworth) who informed him that he had "observed the driver of the red vehicle" and "called in" to alert the authorities. Soos then "told [Link] what he saw," and Link again approached defendant to question him.

Link described his interaction with defendant:

A. . . . [Defendant] was sitting in the vehicle. I started conversing with [him], asked him to please get off the phone. He wouldn't get off the phone, he [stated] that he was talking to his dad at the time. I told him I needed him to get off the phone, I needed his license, registration, insurance card.

Q. Trooper, how was the demeanor of defendant at that time?

A. . . . I want to say irate, like I was bothering him.

A. So at that time . . . I believe he was talking to his father. And he kept saying give me a second, give me a second. I was like, I need you to get off the phone now, I need your license, registration, insurance card.

At this time he was fumbling, trying to get his credentials. At that time I asked [defendant] to step out of the vehicle. And then I placed him in front of the vehicle.

Q. Trooper, could I just ask you, at any time up until that point did you smell the odor of alcohol?

A. . . . Yes. During the conversation. He was talking on the phone. And at that time when I kept asking him to get off the phone, I smelled alcohol.

But at that time I got a little closer and then I smelled it more. And then I asked him to exit the vehicle and walk to the front of his vehicle at that time.

Link stated that defendant's speech was "kind of slurry," his skin was "kind of flushed," and his eyes were "[v]ery watery" and "bloodshot." He further indicated that defendant "couldn't look [him] in the face."

Link decided to conduct two field sobriety tests: the "walk and turn" test and the "one leg stand." First, Link explained and demonstrated the walk and turn test, which required defendant to take nine steps heel-to-toe with his hands at his side, pivot and walk back in the same manner.

Link then explained the one leg stand, which required defendant to stand on one foot with his hands at his side while counting up from one thousand and one. While Link equivocated as to defendant's satisfactory performance on the test, a fair reading of his testimony supports the finding that defendant did not successfully perform the tests.

On cross-examination, Link admitted to omitting a number of observations from his report. Specifically, he failed to note defendant's slurred speech; defendant's slow, fumbling hands; defendant's failure to provide documents promptly; defendant's refusal to look Link in the face; defendant's swaying on the walk-and-turn test; and any problem besides hopping on the one-leg stand. In addition, Link maintained that defendant's speech was "rambling," a word he had used in the report, even though he could not explain what prompted this description. Link's explained why he remembered this particular incident.

Q. Trooper, have you participated in many DWI arrest where there was a pregnant victim involved?

A. No sir.

Q. Did that give you a reason to remember this case?

A. Yes, sir.

Q. How so?

A. Well, first of all, I felt in good faith if this woman, if she would have lost her child due to the fact of this incident, then that would have been over my shoulder if I didn't do the right thing.

Q. But I mean with respect to you remembering - -

A. Yes, sir.

Q. - - The specifics of the case.

A. Yes, sir.

Q. Okay.

A. I remembered it, that part clearly because everyone was saying she's pregnant, she's pregnant, get an ambulance. She's hurt, she's hurt. So yes, I remember that very clearly.

In his decision, the municipal judge found the testimony of both Alesi and Soos "credible and concise with respect to [defendant's] driving and what happened out there with . . . the ultimate accident." He determined that defendant's driving was "horrendous" and "incredibly dangerous." As to Link, the judge said:

I don't think [Link] would get an A in report writing at the Academy. But I do believe that his testimony was credible in the following way.

With respect to [defendant], I believe his fact was flush, I believe that . . . he was slurring his words. I believe that he was . . . disengaged from the proceedings when he should have been responding to [Link]. [Link] had difficulty getting his attention which is, especially after an accident, . . . a bit disconcerting as perhaps a pregnant woman or any individual on the other side of the highway might be seriously hurt or not. The gentleman's on the phone, apparently with his father, as [Link] is attempting to conduct the investigation.

With respect to the documents, . . . the bottom line is [defendant] had trouble producing the documents if I'm to believe [Link]. And also if I'm to believe [Link], . . . he smelled of alcohol as they interacted.

[Link] had [defendant] exit . . . for two psychophysical tests. Now, with respect to whether they meet the standards, . . . we have no testimony in that regard. But whether they meet the standards of the [National Highway Safety Transportation Administration] or whether an expert might say that the scoring points . . . were inappropriate, or in fact if you looked at it, [defendant] actually passed the test. I take a different view. One, there's no testimony in that regard. Two, I'm not bound by that. But beyond that, it goes as follows.

[Defendant] was asked to perform simple tests, and the bottom line is he couldn't perform either one. So whether [Link] explained the tests correctly or incorrectly, the bottom line is they were explained, they were demonstrated, and [defendant] was given the opportunity to perform the tests. It's clear to me from [Link's] testimony, [defendant] could not perform either one of them.

So that is part of the totality of the evidence, if you will. In addition to [defendant's] dangerous driving and . . . the alcohol from his breath and his . . . inability to at least initially want to cooperate with the investigation, as well as the physical manifestations of the flush face and the fumbling of documents and the slurred speech, all add up to probable cause for the arrest . . . .

The judge denied the motion to suppress.

On the de novo appeal, the Law Division judge first set forth the standard of review.

A trial de novo by definition requires the Law Division Judge to make his own findings of fact and rulings on evidence. State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983). In reviewing the record, the Law Division must give due, although not necessarily controlling, regard to the municipal court judge's opportunity to weigh the credibility of witnesses by observing their demeanor and reactions while testifying. [State v. Johnson, 42 N.J. 146, 157-61 (1964)]; [State v. Wishnatsky, 258 N.J. Super. 67, 75 (Law Div. 1990)]. The standard of review for the Law Division . . . is whether the findings of the lower court could reasonably have been reached based on sufficient evidence present in the record. State v. Cerfice, 335 N.J. Super. 374, 383 (App. Div. 2000).

The Superior Court may arrive at its own conclusion where justice demands intervention and correction. State v. Locurto, 157 N.J. 463, 473 (1999). If the Superior Court finds that the defendant was prejudiced, it may remand the case to the originating trial court and specify the basis for the remand. [R.] 3:23-8(a). When an appellate court reviews the ruling of the court in a trial de novo, it must determine whether there was sufficient credible evidence in the record to have led to the judge's findings. Johnson, supra, 42 N.J. at 162. If an appellate court "determines that the finding by the trial court was clearly a mistaken one and so plainly unwarranted . . . the interests of justice demand intervention and correction . . . then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." [State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1993)].

In the end, the de novo court must reach its own independent conclusion concerning the defendant's guilt or innocence. The function of the Law Division in a trial de novo is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function in respect of the defendant's guilt or innocence. Ross, supra, 198 N.J. Super. at 75 . . . .

The judge found that "the inconsistencies [in testimony] noted were not so dramatic as to affect [the witnesses'] credibility according to the evaluation made by the Municipal Court judge." He determined that there was "sufficient evidence in [the] record to support a finding that the testimony of [Alesi], [Soos], and [Link] was credible."

He found that Link's testimony regarding defendant's appearance, "the odor of alcohol," and "the 9-1-1 calls to the State Police regarding defendant's erratic driving" gave Link reasonable and articulable suspicion to administer field sobriety tests. He also gave weight to Link's testimony that defendant failed both tests and concluded: "Taking into account the totality of all of Trooper Link's observations, there is more than sufficient evidence in this record to support a finding that probable cause existed to arrest the defendant for driving while intoxicated by a preponderance of the believable, credible evidence."

He denied the motion to suppress and sentenced defendant on the previously entered plea of guilty. This appeal followed. On appeal, defendant asserts that the trial judge "mis- stat[ed] and fail[ed] to assess the objective evidence of record regarding probable cause for this arrest."

We first set forth our standard of review. As both judges noted in their respective opinions, the evidence supported the factual findings. Our standard of review is clearly understood.

When the Law Division conducts a trial de novo on the record developed in the Municipal Court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid.

(citing Johnson, supra, 42 N.J. at 161-62).

Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the Municipal Court judge. Ibid. (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the Municipal Court, the two-court rule must be considered. "Under the two- court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

The Law Division judge clearly understood that his role was to made independent findings; findings that, ultimately, were reflected in his written opinion.

The narrow focus of defendant's appeal is on whether the trooper had sufficient probable cause to arrest defendant. A law enforcement officer has the authority to execute a warrantless arrest of "any person who the officer has probable cause to believe has operated a motor vehicle while intoxicated in violation of [N.J.S.A. 39:5-40], regardless of whether the suspected violation occurs in the officer's presence." N.J.S.A. 39:5-25. Although the term probable cause "is not susceptible [to] precise definition," State v. Moore, 181 N.J. 40, 45 (2004), the Court has stated that "[t]he probable cause standard is a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt."

[State v. Marshall, 199 N.J. 602, 610 (2009) (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)).]

"In determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances and view those circumstances from the standpoint of an objectively reasonable police officer." State v. Basil, 202 N.J. 570, 585 (2010) (citations and internal quotation marks omitted). When considering the facts available to an officer, a court must consider the "veracity, reliability, and basis of knowledge" of any eyewitnesses. Id. at 586. Moreover, "information imparted by a citizen directly to a police officer will receive greater weight than information received from an anonymous tipster." Ibid. (citing State v. Amelio, 197 N.J. 207 (2008), cert. denied sub nom., Amelio v. New Jersey, __ U.S. __, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009)).

Furthermore, "'[t]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer "had reasonable grounds to believe" that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50].'" State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (second and third alterations in original) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). We have observed that "the average witness of ordinary intelligence, although lacking special skill, knowledge and experience but who has had the opportunity of observation, may testify whether a certain person was sober or intoxicated." State v. Pichadou, 34 N.J. Super. 177, 180 (App. Div. 1955).

There are several "observable physical manifestations" that may support a finding that a suspect was under the influence of alcohol, including "glassy or bloodshot eyes, flushed face, slurred speech, an odor of alcohol, boisterous or belligerent behavior, confusion, fumbling for credentials, staggering while walking, and swaying or unsteadiness while standing." Richmond & Burns, N.J. Municipal Court Practice § 25:5-2(a) (2010-11).

"[P]roof of the erratic manner or result of [an individual's] driving" can also support such a finding. Johnson, supra, 42 N.J. at 165; see also State v. Ravotto, 169 N.J. 227, 242 (2001) (recognizing the fact that "[d]efendant had flipped his car" as evidence of his impaired state).

The proofs presented here support the finding of probable cause. Two eyewitnesses, Alesi and Soos, testified to defendant's erratic driving, and Soos, a trained police officer, even observed defendant's vehicle "kick up sand and dust" by drifting off the road. He also observed that defendant was "weaving in and out of traffic," accelerating and decelerating rapidly, and tailgating. Ultimately, defendant's vehicle collided with the Alesi vehicle prompting Link's further investigation and defendant's arrest.

As Link noted, when he arrived, defendant was non- compliant and smelled of alcohol. Defendant's speech was "slurry," his skin was "flushed," and his eyes were "[v]ery watery" and "bloodshot."*fn5 Defendant perform poorly on both field sobriety tests.

Defendant urges that the field sobriety tests were administered in a manner that was not consistent with the Guidelines promulgated by the National Highway Transportation Safety Administration, Development of a Standardized Field Sobriety Test app. A (Nov. 2001), injury/alcohol/SFST/appendix_a.htm (Standardized Field Sobriety Testing) [hereinafter NHTSA Guidelines].

In light of all of the facts presented here, it is irrelevant whether the tests were administered wholly in accordance with the NHTSA guidelines. We find no merit in this argument. There is no requirement that the test be administered in compliance with these standards; moreover, in the context of this appeal, the disputed test results are one more piece of the factual mosaic that described defendant's conduct at the time and place in question. The trooper indicated that defendant did not successfully perform the tests, and both judges accepted that testimony as credible. We perceive of no basis to intervene or disregard those findings.

We conclude that the observations made by the Trooper, Alesi and Soos provide a sufficient basis to support the Trooper's conclusion that there was sufficient probable cause to effect an arrest. See Moore, supra, 181 N.J. at 46 ("Although several factors considered in isolation may not be enough, cumulatively these pieces of information may 'become sufficient to demonstrate probable cause.'") (quoting State v. Zutic, 155 N.J. 103, 113 (1998)).


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