August 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SALOME M. WANGWE, DEFENDANT-APPELLANT.
On appeal from Superior Count of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 41-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2012
Before Judges Payne and Hayden.
Defendant Salome M. Wangwe appeals from the December 6, 2010 Law Division order affirming the March 30, 2010 municipal court order finding her guilty of driving while intoxicated (DWI) and refusal to submit breath samples. Having considered the record and the applicable legal principles, we affirm.
The record reveals that on October 26, 2008, defendant was arrested in East Brunswick and charged with DWI, N.J.S.A. 39:4-50, reckless driving, N.J.S.A. 39:4-96, and refusal to submit breath samples, N.J.S.A. 39:4-50.2. At the municipal court trial, the State's witnesses provided the following testimony. Police Officer James Angermeier testified that he was on patrol on Route 18 when he pulled an SUV over into a restaurant's parking lot. Immediately thereafter, a second car, a Honda, pulled into the adjoining parking lot, about fifteen yards from the officer. The police officer saw defendant exit the Honda from the driver's side and walk toward him. The officer pointed his flashlight at her and told her to stop. The driver of the SUV explained to the officer that defendant owned the SUV.
Police Officer Thomas Cassidy, Angermeier's backup, testified that he arrived on the scene shortly after Angermeier called for assistance, because he was nearby. He did not see defendant get out of the Honda but saw her standing by its open driver's door. When Cassidy approached defendant, he smelled alcohol on her breath and noticed she was slurring her words and swaying, and her eyes were red and watery. Defendant admitted that she had been drinking at a club that evening but denied that she had been driving a vehicle. Shortly thereafter, Tony Ochido, who was sitting in the passenger seat of the Honda, told Cassidy that defendant had been driving that vehicle.
Cassidy asked defendant to perform some field sobriety tests. Initially, she refused because she maintained that she had not been driving. However, she then agreed to attempt a "walk and turn" test, which she was unable to perform. As a result, she refused to cooperate further. Based on these observations, Cassidy arrested defendant for DWI. At police headquarters, Cassidy read defendant the standard statement regarding the requirement to submit breath samples and the consequences of refusal. See N.J.S.A. 39:4-50.2(c). Defendant stated that she would not participate in the tests and signed the standard statement form with the words, "I will not."
At trial, defendant's witnesses provided the following testimony. Defendant's friend, Lilian Raini, testified that she and defendant had been drinking heavily that night with friends. When the group decided to head to another club, Raini saw defendant get into the passenger side of the Honda, and Raini got into the first car. Ochido testified that, contrary to what he had told the police at the scene, he drove the second car but he had gotten into the passenger side seat after defendant exited the vehicle to speak to the police. He switched his seat and falsely claimed defendant was driving the second vehicle in order to avoid another DWI charge as he already had one pending against him.
On March 30, 2010, the municipal court judge, after determining that the police officers were credible and defendant's witnesses were not, found that defendant was guilty of DWI and refusal to submit breath samples, and dismissed the reckless driving charge. The judge sentenced defendant as a first offender to a ninety-day suspension of her New Jersey driving privileges and other requisite fines and penalties. Defendant filed an appeal in the Law Division.
On November 19, 2010, Judge Joseph A. Paone conducted a trial de novo on the record, which consisted of arguments of counsel. In rendering his oral decision, the judge carefully reviewed the record below and rejected defendant's arguments seeking to undermine the municipal court judge's credibility determination. Judge Paone found defendant guilty of the same offenses and imposed the same penalties as in the municipal court. The judge stayed the entire sentence pending appeal.
On appeal, defendant raises the following contentions for our consideration.
POINT I: DEFENDANT WAS DENIED HER RIGHT TO A COMPLETE DE NOVO REVIEW IN HER MUNICIPAL COURT APPEAL.
POINT II: THE STATE FAILED TO PROVE THAT DEFENDANT WAS THE DRIVER OF THE HONDA.
POINT III: THE STATE FAILED TO PROVE THAT THE ARRESTING OFFICER HAD PROBABLE CAUSE TO DETERMINE THAT THE DEFENDANT WAS DRIVING UNDER THE INFLUENCE TO REQUIRE THAT DEFENDANT SUBMIT A BREATH SAMPLE.
Initially, we observe that in an appeal such as this our role is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). In making his or her determination "de novo on the record from the municipal court," the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing State v. Johnson, 42 N.J. 146, 157 (1964)), certif. denied, 209 N.J. 430 (2012). Our role is to determine whether the Law Division's de novo findings could reasonably have been reached on sufficient credible evidence present in the record. Ibid. Moreover, when the municipal court judge and the Law Division judge "have entered concurrent judgments on purely factual issues," we will not disturb those findings "absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999). Nevertheless, our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We reject defendant's claim that she did not receive a full trial de novo on the record here because the trial judge would not allow the video of the incident to be played during summation, and the municipal court judge's findings of fact and credibility determinations were not transcribed until after the Law Division judge decided the case. In his oral decision, the Law Division judge painstakingly scrutinized the record in detail, referring to the video at least six times. It is clear to us that the judge viewed the video and relied on it in making his decision. The decision whether to allow the video to be played during summation was left to his sound discretion, and we see no abuse of discretion here. State v. Muhammad, 359 N.J. Super. 361, 379 (App. Div.), certif. denied, 178 N.J. 36 (2003).
Although Judge Paone might not have had the transcript of the municipal court judge's credibility determination, it is readily apparent from the decision finding defendant guilty that the municipal judge credited the testimony of the police officers and did not credit the testimony of defendant's witnesses. See Locurto, supra, 157 N.J. at 473-74. We find that the Law Division judge, while referencing the municipal court judge's credibility findings, thoroughly reviewed the facts as they appeared in the record and conducted an independent determination that yielded the same conclusion as the municipal judge's findings.
Next, we find defendant's argument that the State did not prove that defendant was driving a vehicle to be without merit. "Operation [of a motor vehicle] may be proved by any direct or circumstantial evidence - as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). Officer Angermeier testified that he saw defendant get out of the driver's side of the Honda that had just driven into the parking lot. Officer Cassidy testified that he saw defendant standing by the open driver's side door of the Honda. Ochido told the police at the scene that defendant was the driver. Judge Paone noted that defendant's witnesses were her friends, providing a motive to lie, and both admitted that they were intoxicated during the incident, making their testimony less reliable. Moreover, in finding the police officers credible, the judge observed that none of the officers' testimony was contradicted by the video. We are convinced from a review of the record that there was ample evidence to support Judge Paone's finding that defendant was the driver of the Honda.
Finally, defendant contends that the State did not have probable cause to request a breath test because it did not show that defendant had operated a motor vehicle. We disagree.
A person is deemed to have consented to provide breath samples by operating a motor vehicle on any public road in the State and must provide such samples at the request of a police officer "who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of [N.J.S.A. 39:4-50]." N.J.S.A. 39:4-50.2(a). For prosecutions under the Refusal Statute, N.J.S.A. 39:4-50.4a, the State must prove that the officer had probable cause to believe that the person had been driving under the influence of intoxicating liquor or illegal drugs, that the police placed the defendant under arrest and read him or her the standardized form, and the defendant refused to submit to the breathalyzer test. State v. Cummings, 184 N.J. 84, 96 (2005). Here, defendant challenges only the allegation that she was operating the vehicle. We conclude that the evidence both judges found credible was more than sufficient for the police to have probable cause to believe that defendant was driving while she was intoxicated.
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