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State of New Jersey v. Wendy Wielgomas

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 26, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WENDY WIELGOMAS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 28-09-R-T13.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2011

Before Judges Fisher and Sapp-Peterson.

Following a trial de novo on the record created in the Hillsborough Township Municipal Court, the Law Division judge found defendant guilty of refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. On appeal, defendant contends the State failed to establish with proof beyond a reasonable doubt that there was probable cause to believe she was operating her motor vehicle under the influence. As a consequence, there was no basis to request that she submit to a breathalyzer test and, consequently, her refusal conviction must be reversed. We disagree and therefore affirm the judgment of conviction.

The incident leading to defendant's arrest occurred shortly after midnight on January 1, 2009. At that time, Hillsborough Police Officer Joseph Paschall stopped defendant for speeding. Following a roadside investigation that included another Hillsborough police officer, Kevin Kearney, defendant was placed under arrest and transported to police headquarters where she refused to submit to a breathalyzer test. In addition to the refusal offense, defendant was also charged with driving while under the influence (DWI), N.J.S.A. 39:4-50, and speeding, N.J.S.A. 39:4-98. She subsequently pled not guilty to all charges.

On January 9, defendant's attorney requested copies of any and all discovery materials. Some discovery was provided approximately one month later. Defense counsel, upon receipt of that discovery, sought additional discovery and confirmation, as had been earlier represented by the municipal prosecutor, that neither patrol vehicle at the scene of defendant's arrest was equipped with a mobile video recorder (MVR). During a March 9 pretrial conference, however, the municipal prosecutor, for the first time, advised defense counsel that Officer Kearney's vehicle was equipped with an MVR but it was not working the night of defendant's arrest. Further, he indicated that Officer Paschall's vehicle was also equipped with an MVR, which was working properly that night, but for reasons unknown to him at the time, the incident was either not recorded or, if recorded, the footage was not preserved.

At trial, during Officer Paschall's testimony, it was stipulated that the weather conditions were cold, approximately nineteen degrees, with sustained winds of 20 m.p.h. and gusts to 30 m.p.h. Officer Paschall testified that he observed defendant traveling at what appeared to be a high rate of speed southbound on Route 206 and activated his radar, clocking defendant's vehicle as traveling 56 m.p.h. in a 45 m.p.h. speed zone. After defendant's vehicle passed him, he made a U-turn and proceeded to travel directly behind defendant's vehicle, which stopped for a red traffic signal at an intersection. When the light turned green, the officer activated his lights, signaling defendant to pull over. Other than the initial speeding that he observed, the officer did not witness any erratic driving as he followed defendant.

Officer Paschall approached the driver's side of defendant's vehicle and asked for her credentials, which she did not have because she normally kept her driver's license in her privately owned vehicle, which was being repaired. At the time, she was operating a rental car and presented the paperwork for that vehicle. Officer Paschall detected an odor of alcohol emanating from her breath. He asked defendant whether she had been drinking and she told him no. The officer went to his patrol car and contacted Officer Kearney, who was assigned to DWI enforcement that evening.

Officer Paschall then returned to defendant's vehicle and noticed that she had a piece of candy in her mouth. When he first approached defendant's vehicle and engaged in his initial questioning, she did not have any candy in her mouth. Officer Paschall suspected defendant of attempting to mask the odor of alcohol and conveyed this information to Officer Kearney, who arrived shortly thereafter.

Under cross-examination, Officer Paschall acknowledged that under General Order 2005-59 (General Order), which sets forth the standard operating procedures for the MVR, arrests involving DWI are to be recorded, and that in all likelihood, defendant's stop and subsequent arrest were recorded on the MVR attached to his patrol car. He also acknowledged that the General Order directs that the MVR footage of the incident is to be logged in and then locked. He did not follow this protocol because he believed he was not responsible for preserving the evidence since he "wasn't the arresting [o]fficer" and he "wasn't [the one] putting her through the field sobriety tests."

Officer Kearney, an eleven-year veteran of the Hillsborough Police Department, testified that when he approached defendant's vehicle, he asked her whether she had been drinking, and defendant responded that she had not been drinking. He observed that defendant had candy in her mouth and requested that she remove it. Defendant refused to remove the candy, became uncooperative, and initially refused to exit her vehicle. She told him that she was fine to drive, the situation was ridiculous, and questioned why he would not let her just leave. Officer Kearney indicated that "[t]he one thing [he] did notice was that her eyes were red and watery." He did not detect an odor of alcohol.

Defendant eventually exited her vehicle. She was wearing black pants, a red sweater, scarf, a long, heavy, knee-length, wool coat that was fitted at the top but "belled-out" at the bottom, and three or four-inch high-heeled boots. Officer Kearney testified that defendant had no difficulty exiting the vehicle or walking to the area where he planned to administer field sobriety tests. He administered three tests, which defendant failed to perform satisfactorily. The first test was the horizontal gaze nystagmus test (HGN), which measures involuntary eye spasm. See State v. Maida, 332 N.J. Super. 564, 567-68 n.1 (Law Div. 2000). He explained that "neither her right or left eye was able to smoothly pursue the stimulus showing nystagmus as it[']s going across laterally" and that she also showed nystagmus "in both eyes when held at maximum side deviation[,] which is a wobbling on the side."

The officer next administered the "walk and turn" test. He instructed her to take nine steps forward, touching her heel to her toe, and then turn and repeat, taking nine steps back. According to Officer Kearney, defendant did not walk heel-totoe, "side[-]stepped to the right on the [seventh] step and then immediately started to take her small steps to turn around and go back, not completing the [nine] steps forward."

The last test administered was the one-leg stand. Officer Kearney testified that defendant did not keep her foot raised until told to place it down, as he had instructed her to do. During this test, defendant argued with him and swayed at one point. After her second attempt to perform the test, she became "wobbly" and Officer Kearney instructed her to stop. He testified that "[i]t was at that time I . . . determined that she was going to be placed under arrest and brought back to Headquarters for the breathalyzer." He subsequently charged defendant with DWI, N.J.S.A. 39:4-50, and refusal to take the breathalyzer test, N.J.S.A. 39:4-50.2.

Defendant testified on her own behalf. She admitted that she had been drinking. She indicated that she had two or three sips of champagne just after midnight. She also admitted to having candy in her mouth. She first testified that she did not remember when she put the candy in her mouth but then immediately stated that it was "[b]efore, when I was at the party." She also testified that she had the candy in her mouth through the entire time of the stop until Officer Kearney arrived. Additionally, she admitted that she initially refused to exit her vehicle when requested to do so. Further, in response to the question whether she could think of "any reason why the two . . . [o]fficers would intentionally say they smelled alcohol on [her,]" defendant stated that "there was wine spilled on my pants at one point[,] which was on my pants not hmm [sic], but I had just had a half of glass of champagne. It was just [past] midnight when they handed out the glasses."

When questioned regarding her performance of the field sobriety tests, she testified that she remembered "counting [nine] forward[,] quickly turning[,] and [nine] back" when performing the "walk and turn" test. She did not recall sidestepping at all. She indicated that when she performed the oneleg stand, she put her foot out and counted to twenty/one thousand, although the officer had only counted to three/one thousand when demonstrating the test to her. Officer Kearney asked her to perform the test again, which she did. He told her to stop while she had her foot raised. She testified that she did not fall in performing that test.

The municipal judge found defendant guilty of speeding,*fn2 but not guilty of DWI. Turning to the refusal charge, the judge concluded that the failure of the police to preserve the MVR and audio footage of the stop and field sobriety testing had "absolutely no impact on the case[,] and the cross-examination brought that out." He credited the testimony of the officers and concluded there was probable cause to arrest defendant and take her to police headquarters to administer the breathalyzer test. He found defendant guilty of the refusal charge and imposed a seven-month suspension of her driver's license, as well as $628 in fines and penalties. The judge also ordered defendant to complete twelve hours at the Intoxicated Driver's Resource Center. The judge stayed the driver's license suspension pending appeal to the Law Division.

On appeal de novo before the Law Division, the judge accorded deference to the municipal judge's credibility determination. Based upon defendant's speeding, placing candy in her mouth and refusing to remove it, the odor of alcohol emanating from her breath along with her denial that she had been drinking, her initial refusal to exit her vehicle, the observation that her eyes were red and watery, and her argumentative and uncooperative attitude, he found there was sufficient evidence to establish "probable cause to require [d]efendant to exit the vehicle and subject her to physical coordination testing."

The judge next addressed Officer Kearney's testimony concerning defendant's performance of the field sobriety tests, whose testimony the municipal judge credited. The judge determined that Officer Kearney's testimony concerning defendant's performance of the field sobriety tests, along with the other evidence, established probable cause to arrest defendant and request that she submit to the breathalyzer test. The judge specifically noted Officer Kearney's testimony that defendant had lateral nystagmus, did not remain where he asked her to stand, slightly swayed, failed to touch her heel with her toe on the "walk and turn" test, did not complete the nine steps as instructed, side-stepped and swayed after the seventh step, put her foot down prematurely and argued with the trooper during the one-leg stand test.

The judge was not persuaded by defendant's argument that the HGN test results should be rejected due to procedural deviations committed by Officer Kearney, noting that defendant failed to cite to any authority that stood for the proposition that such procedural deficiencies warrant rejection of the test results. The judge also found that defendant "concede[d] that upon taking the seventh step, she 'side-stepped' and then turned around ([d]efendant was instructed to turn on the ninth step in order to satisfactorily complete the test)." The judge additionally found that defendant did not contest Officer Kearney's observation that she was "'swaying slightly' during the instructional portion of the [walk and turn] test." Further, the judge noted that defendant also conceded that she put her foot down before Officer Kearney told her to stop.

Based upon these concessions, the judge concluded that "[d]efendant can not reasonably contend that this [c]court should afford little or no weight to the officer's observations regarding the test results."

Likewise, the judge rejected defendant's argument that the absence of other indicia of intoxication, such as inappropriate actions in the movement of her hands, her facial appearance, clothing, or slurred speech, was further proof of the absence of probable cause to arrest her. The court reasoned:

That the defendant did not exhibit other evidence of intoxication does not mean that the indicia of intoxication which she did exhibit should be ignored or minimized. Defendant, in addition to the aforementioned concessions with regard to the field sobriety tests, concedes that she (initially) refused to remove the candy from her mouth and to exit her vehicle when asked, and asserted that the officers were being "ridiculous." This behavior was appropriately characterized in the drinking/driving report as "antagonistic" and "resisting."

Defendant has failed to cite any authority which indicates that "antagonistic behavior" and "resisting" the commands given by officers does not constitute evidence of intoxication. Logic and life experience suggest otherwise. Moreover, the failure of the "walk and turn" test and the "one leg stand" test was also noted in the drinking/driving report, appearing as "staggering" and "swaying" respectively. Defendant also was belligerent, uncooperative, and hostile.

Addressing defendant's argument that the officers' failure to preserve the MVR and audio recording violated her right of due process, the court found that the officers did not act in bad faith when they failed to preserve the tape as required by the General Order. Nonetheless, citing State v. Zenquis, 251 N.J. Super. 358 (App. Div. 1991), aff'd, 131 N.J. 84 (1993), the court observed that an adverse inference could be drawn against the State without an express finding of bad faith by the court. The court then concluded that the MVR footage and audio tape "would be material, and that these recordings may have had some exculpatory value, albeit unknown and not 'apparent.'" Finally, the court considered the prejudice to defendant resulting from the failure to preserve the evidence which it deemed material:

The uncontroverted testimony of Officer Paschall indicates that the MVR tape in his patrol vehicle would not have captured

[d]efendant's performance on the field sobriety tests. We will never know for sure, but that is not the criteria by which the issue is decided. Further, although

[d]efendant contends that the audio recording would have shown that she was not slurring her speech, slurred speech was never argued as a basis for the finding of probable cause by the State, and accordingly, the lack of evidence indicating slurred speech cannot be said to prejudice [d]efendant.

Finally, the evidence of [d]efendant's "demeanor" which would have been captured on the audio recording has been conceded by [d]efendant. Defendant acknowledged that she initially refused to remove the candy from her mouth and that she initially refused to exit her vehicle upon being requested to do so. She further testified that she told the officers that they were being "ridiculous" and should arrest "real criminals." . . . This evidence relating to "demeanor" was adequately captured through testimony at trial, and the lack of an audio recording does not demonstrate the requisite level of prejudice to rise to a due process violation.

The court found defendant guilty of the refusal charge and sentenced her in accordance with the sentence imposed by the municipal judge. The court stayed imposition of the sentence pending appeal. The present appeal followed.

On appeal defendant raises the following points for our consideration:

POINT I

THE STATE FAILED TO PROV[]E BEYOND A REASONABLE DOUBT THAT THERE WAS PROBABLE CAUSE TO ARREST WENDY WIELGOMAS AND TO REQUEST HER TO SUBMIT TO A BREATH TEST.

POINT II

THE STATE'S FAILURE TO PROVIDE MATERIAL DISCOVERY VIOLAT[]ES DEFENDANT'S RIGHT TO DUE PROCESS THEREBY ENTITLING THE COURT TO DERIVE FACTUAL ADVERSE INFERENCE AGAINST THE STATE.

Our proper scope of review in this case is to determine whether there was "sufficient credible evidence present in the record" to uphold the findings of the Law Division judge. State v. Johnson, 42 N.J. 146, 162 (1964). We may "not weigh the evidence, assess the credibility of the witnesses, or make conclusions" from the evidence. State v. Barone, 147 N.J. 599, 615 (1997). Deference to credibility and factual findings is especially compelling where municipal court and superior court judges have concurrent judgments on purely factual issues. State v. Locurto, 157 N.J. 463, 474 (1999).

Probable cause is . . . an elusive concept, incapable of being precisely defined. It is more than mere naked suspicion but less than legal evidence necessary to convict. It is not a technical concept but rather one having to do with the factual and practical considerations of everyday life upon which reasonable men, not constitutional lawyers, act. It has been described by this Court as a well grounded suspicion that a crime has been or is being committed. [State v. Waltz, 61 N.J. 83, 87 (1972) (citations and internal quotation marks omitted).]

"'[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) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). The yardstick requires the court to make a practical common sense determination based upon all the factors known to the officer at the time. State v. Moore, 181 N.J. 40, 46-47 (2004). While several factors considered in isolation may be insufficient to establish probable cause, cumulatively, the factors may be sufficient. Id. at 46 (quoting State v. Zutic, 155 N.J. 103, 113 (1998)).

Defendant's argument primarily focuses upon the failure to preserve the MVR footage and audio of the incident, which was contrary to the Hillsborough Police Department's General Order requirement that such evidence be preserved where there has been a DWI arrest. Defendant urges that this was particularly egregious because her attorney made a timely request for the evidence. In State v. W.B., the Court reiterated existing law that "law enforcement officers may not destroy contemporaneous notes of interviews and observations at the scene of a crime after producing their final reports." State v. W.B., supra, slip op. at 30. Recognizing that the preservation of such notes may be material to the defense, the Court stated "the time has come to join other states that require the imposition of 'an appropriate sanction' whenever an officer's written notes are not preserved." Id. at 32 (quoting People v. Wallace, 565 N.E.2d 471 (N.Y. 1990)).

Although the failure to preserve the recording of the roadside stop, which Officer Paschall, during his testimony, acknowledged was probably captured on his MVR, did not violate a Court rule, it did violate the Hillsborough Police Department's General Order. For purposes of determining whether a sanction should be imposed against the State for the failure to preserve the MVR footage of the incident, we see no discernable difference between a violation of the General Order or a Court rule.

The Law Division judge, citing State v. Dreher, 302 N.J. Super. 408 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998), reviewed the factors courts must consider in determining whether a due process violation has occurred as the result of the loss or destruction of evidence: "(1) the bad faith or connivance by the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant was prejudiced." Id. at 483. The judge was satisfied that the footage from the MVR was material but found there was no evidence that the footage was destroyed in bad faith or that defendant was prejudiced by the destruction of the evidence. Notably, however, the judge expressed the view that "an adverse inference against the State may still be drawn without an express finding of bad faith by the Court." It is, however, unclear whether the judge actually applied an adverse inference in its de novo review. Assuming, however, he did not, we do not conclude that defendant was prejudiced by the failure to do so.

"Generally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him [or her]." State v. Clawans, 38 N.J. 162, 170 (1962) (citing 2 Wigmore on Evidence, § 285 (3d ed. 1940)). The effect of an adverse inference is to permit the factfinder to find that the fact sought to be proved or disproved by the evidence would not have been favorable to the person losing or destroying the evidence. Jerista v. Murray, 185 N.J. 175, 202 (2005). Thus, in this case the adverse inference would have permitted the Law Division judge to have found that defendant satisfactorily performed the field sobriety tests. This was the only genuinely disputed factual issue in the record, and not all aspects of the field sobriety tests were disputed.

Defendant did not dispute Officer Kearny's testimony regarding the results of the HGN test, but only the procedures followed. Officer Kearney conceded that he did not strictly adhere to the procedures, but defendant failed to present any evidence that the failure to do so compromised the results. Moreover, there is no legal requirement, in this state, that mandates compliance with the National Highway Traffic Safety Administration (NHTSA) in administering the HGN test. As the Law Division judge noted, defendant failed to reference any legal authority to support the argument that non-compliance with the NHTSA requires the court to reject the HGN test results. The failure to adhere to all of the NHTSA procedures for administering the tests may have affected the weight the court accorded Officer Kearney's testimony related to this test. However, the municipal judge credited Officer Kearney's testimony in this regard, and the Law Division judge accorded deference to that determination. Further, it is doubtful the reaction of defendant's eyes to the testing would have been captured on the video. Thus, the failure to preserve the MVR footage of this test was of no consequence.

As to the "walk and turn" test, defendant did not dispute the officer's testimony that she swayed during the test. She merely testified that she did not stumble or fall. Officer Kearney never testified that defendant stumbled or fell while performing any of the field sobriety tests or at any other time during the entire incident. Contrary to the Law Division judge's findings, defendant did not concede that "upon taking the seventh step, she 'side stepped' and then turned around[.]" When asked whether she side-stepped, she testified that she did not recall. The MVR footage and audio recording may have established that she did not side-step upon taking the seventh step or sway during the performance of this test.

On the one-leg stand test, Officer Kearney testified that he instructed defendant to keep her foot raised until he told her to stop. Defendant admitted that she put her foot down before being told to do so because she thought that she had held her foot up for a "significant amount of time." Her acknowledgement that she put her foot down before being told to do so renders the officer's testimony on this point unrebutted. Her explanation why she put her foot down before being told to do so does not alter the fact that she admittedly failed to follow the officer's instruction.

In short, the failure to preserve the MVR footage and audio recording, at best, deprived defendant of the opportunity to demonstrate that she performed the "walk and turn" test satisfactorily. The fact that she may have performed one of the field sobriety tests satisfactorily is not dispositive of the question of whether there was probable cause to believe that she had been operating her motor vehicle under the influence. Thus, had an adverse inference been applied against the State as a result of its failure to preserve the MVR footage, it is unlikely the outcome of the trial would have been different.

Moreover, there is no requirement in the law that field sobriety tests be administered in advance of an arrest of an individual suspected of operating a motor vehicle under the influence. Nor is the performance or failure to perform field sobriety tests an element of proof in a refusal prosecution. See N.J.S.A. 39:4-50.2. The proofs necessary to establish the requisite probable cause will vary in each case, and the issue is whether the evidence presented in a particular case is sufficient to establish probable cause with proof beyond a reasonable doubt. State v. Cummings, 184 N.J. 84, 89 (2005).

Moreover, assuming, at the time Officer Kearney decided to request that defendant perform field sobriety tests, he was uncertain whether there was probable cause to believe she had been operating her motor vehicle under the influence, "certainty" is not the test. Rather, it is whether there was a well-grounded suspicion measured objectively that defendant was operating her vehicle under the influence of alcohol. State v. Moore, supra, 181 N.J. at 45. Officer Kearney's "state of mind, intent or motivation does not invalidate action on [his] part that is objectively reasonable." State v. Irelan, 375 N.J. Super. 100, 117 (App. Div. 2005) (citing State v. Bruzzese, 94 N.J. 210, 220 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). Thus, we consider whether probable cause was established under an objectively reasonable standard. Ibid. In doing so, we are convinced the Law Division judge properly concluded the State proved beyond a reasonable doubt there was probable cause to believe that defendant was operating her motor vehicle under the influence of alcohol.

We reject defendant's argument that the court focused on "'what was'" and completely ignored the circumstances and "'what was not.'" The court addressed the claimed absence-of-other-indicia-of-intoxication argument:

That the defendant did not exhibit other evidence of intoxication does not mean that the indicia of intoxication which she did exhibit should be ignored or minimized. Defendant, in addition to the aforementioned concessions with regard to the field sobriety tests, concedes that she (initially) refused to remove the candy from her mouth and to exit her vehicle when asked, and asserted that the officers were being "ridiculous." This behavior was appropriately characterized in the drinking/driving report as "antagonistic" and "resisting."

Defendant has failed to cite any authority which indicates that "antagonistic behavior" and "resisting" the commands given by officers does not constitute evidence of intoxication. Logic and life experience suggest otherwise. Moreover, the failure of the "walk and turn" test and the "one leg stand" test was also noted in the drinking/driving report, appearing as "staggering" and "swaying" respectively. Defendant also was belligerent, uncooperative, and hostile.

The State has met its burden of proving that police had probable cause to arrest [d]efendant, beyond a reasonable doubt. Beyond a reasonable doubt is the absence of an honest and reasonable uncertainty about probable cause to arrest the defendant, after full and impartial consideration of all of the evidence. Proof beyond a reasonable doubt is proof that leaves the [c]court firmly convinced of the existence of probable cause. The law does not require proof that overcomes every possible doubt, but based on consideration of the evidence, I am firmly convinced that the police had probable cause based upon the totality of facts and circumstances.

As noted earlier, we review only the Law Division's de novo trial. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). Our task is to determine whether there is sufficient credible evidence in the record to support the findings of the Law Division. Barone, supra, 147 N.J. at 615; Johnson, supra, 42 N.J. at 162. It is not our function to disturb the findings of the Law Division merely because we may have reached a different conclusion were we the factfinder or because the Law Division, according deference to the municipal judge's credibility determinations, decided all "evidence or inference conflicts in favor of one side[.]" State v. Elders, 192 N.J. 224, 244 (2007) (citation and internal quotation marks omitted). Moreover, a "trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." Ibid. (citation and internal quotation marks omitted).

When the totality of the facts known to Officer Kearney are considered objectively, including the fact that defendant was returning from a New Year's Eve event shortly after midnight, his observations of defendant, as well as those of Officer Paschall, who also detected an odor of alcohol emanating from defendant's breath, defendant's demeanor, and the motor vehicle violation, we are satisfied there is no basis upon which to disturb the findings of the Law Division.

Affirmed. The stay of the suspension of defendant's driver's license is continued for a period of thirty days, after which the stay shall be vacated automatically, unless it is extended by order of the Supreme Court.


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