On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2010-28.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Fasciale.
Defendant appeals from his conviction for driving while intoxicated, N.J.S.A. 39:4-50. Defendant argues (1) that the State produced insufficient evidence to convict him based on the officers' observations; (2) that the Municipal Court judge erred by denying his request for an adjournment to permit his AlcoTest expert to testify; and (3) that the Law Division judge erred by failing to conduct a de novo review and by deferring to credibility findings. We affirm.
On September 22, 2009, at approximately 1:35 a.m., Officers Christopher Van Ness and Jason Jones were patrolling in a police vehicle. Officer Van Ness merged onto Route 1 and observed from behind him that defendant was operating a two-door Mazda traveling slowly in a fifty-five mile per hour zone. Officer Van Ness reduced his rate of speed to approximately thirty miles per hour, allowed defendant to pass him, and noticed that the rear license plate light on the Mazda was inoperable. He then activated his overhead lights and spotlight and conducted a lawful automobile stop.*fn1
Officer Van Ness approached the driver's side of the Mazda and detected a very strong odor of alcohol. He noticed that defendant's eyes were bloodshot and watery, his speech slurred, and his face flushed. At the same time, Officer Jones, acting as the back-up officer, approached the passenger side of the Mazda. Officer Jones also detected an odor of alcohol.
Defendant admitted to Van Ness that he had been coming from Hooters and had consumed two alcoholic drinks. Officer Van Ness asked defendant to exit the Mazda and then conducted field sobriety tests at the scene.*fn2 During a walk and turn test, defendant "failed to touch heel-to-toe numerous times, he stepped off line numerous times, and he raised his hands for balance [and] turned incorrectly." During a one-leg stand test, defendant "swayed while balancing from side to side and front to back[,] and he raised his hands over six inches to balance himself." Officer Van Ness also observed defendant generally "swaying while he walked" and "swaying while he was standing." Officer Jones made similar observations; he watched defendant perform the tests, and concluded that defendant's "coordination and balance were poor." The officers determined that defendant was intoxicated, arrested and charged defendant with DWI, and transported him to the police station. On the ride to headquarters, the officers detected a strong odor of alcohol in the police vehicle. Officer Van Ness testified that defendant's demeanor at the police station was "very antagonistic."
The matter was tried in Municipal Court before Judge Mary S. Brennan, J.M.C. Judge Brennan listened to the testimony from Officers Van Ness and Jones, and viewed three videotapes: S-1, a video tape recorded from the police vehicle, and S-13 and S-14, two separate videotapes taken at police headquarters. Judge Brennan found the officers "credible" and rendered an eighteen-page oral opinion. Based on the officers' observations, Judge Brennan found defendant guilty of DWI.*fn3 She suspended defendant's license for three months, and imposed the appropriate fines and penalties. Defendant appealed his DWI conviction to the Law Division.
Judge Pedro J. Jimenez, J.S.C., conducted a trial de novo in the Law Division and issued a nine-page written opinion. Judge Jimenez deferred to Judge Brennan's credibility findings, concluded that "[t]he officers' observations adequately supported [d]efendant's conviction[s], beyond a reasonable doubt," and found defendant guilty of DWI. Judge Jimenez then imposed the same sentence issued by Judge Brennan. This appeal followed.
On appeal, defendant raises the following points:
JUDGE BRENNAN COMMITTED REVERSIBLE ERROR WHEN SHE DENIED DEFENDANT'S APPLICATION TO ADJOURN THE TRIAL SO THAT DEFENDANT'S ...