September 12, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EMMANUEL PAPASAVVAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 100-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012
Before Judges Payne and Hayden.
Defendant Emmanuel Papasavvas appeals his third conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, based on evidence provided by the arresting officer of his observations
and the results of field sobriety tests. On appeal, defendant presents the following argument:
THE LAW DIVISION'S DECISION CONVICTING EMANUEL PAPASAVVAS OF DRIVING WHILE INTOXICATED IS INTERNALLY INCONSISTENT AND NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE INDICATING THAT THE STATE FAILED TO MEET ITS [BURDEN] BEYOND A REASONABLE DOUBT.
At a suppression hearing held in the municipal court, testimony was offered by East Brunswick police officer Brian Ventura. He stated that at approximately 1:00 a.m. on July 1, 2009, he was on road patrol on Route 18 south in the area of the merge onto Cranbury Road. Because he was required to yield to traffic before merging, Officer Ventura said he looked to his left. The officer noted that there was a stop sign in that location that motorists frequently did not completely obey. As he looked in the direction of the stop sign, the officer saw a vehicle approaching at a high rate of speed that he estimated to be sixty miles per hour. When the vehicle did not slow down at the stop sign, Officer Ventura pulled behind it and activated his overhead lights, so as to make a stop.
After the vehicle had stopped, the officer approached the driver's window and requested the driver's license, registration and insurance. He then observed the driver fumbling through documents in his glove box and wallet. At that point, the driver's movements were described to be slow and lethargic; his face was flushed; and his eyes were bloodshot and watery. When conversing with the driver, Officer Ventura observed slurred speech. When asked if he had consumed alcohol, the driver denied having done so.
Documents produced by the driver identified him as defendant. Upon verifying them, Officer Ventura determined that defendant's registration was suspended. After confirming that fact, the officer returned to defendant's vehicle and ordered him to exit the car to perform road sobriety tests. The officer testified that, as he exited the vehicle, "[h]e seemed like he was off balance. He staggered a bit when he walked." After smelling alcohol on defendant's breath, Officer Ventura again asked defendant if he had been drinking, and was informed by him that he had consumed one beer.
The roadside sobriety tests were conducted on a near-by sidewalk, outside of the recording range of the officer's video camera. However, audio evidence of the testing was recorded. The first test to be performed was the one-leg stand test. Defendant commenced that test while wearing work boots, but after stating that he was having difficulty balancing with the boots on, he was permitted to sit on the curb to remove them.
Defendant then performed the test in his socks. During the course of the thirty-second, timed test, defendant was described as "continually" putting his foot down, raising his arms for balance, and swaying, but not hopping. Defendant thus exhibited three out of the four indicia designed to establish intoxication, thereby failing the test. On cross-examination, Officer Ventura admitted that the reliability of this test as a predictor for excessive alcohol consumption was sixty-two percent.
Defendant was also asked to perform a walk-and-turn test that required him to take nine heel-to-toe steps forward, to turn, and then to take nine heel-to-toe steps back. Out of the eight categories of behavior suggesting intoxication, defendant exhibited six. According to Officer Ventura, he could not balance during the instruction period; he started the test early; he continuously stopped while walking; he did not touch heel to toe; he raised his arms for balance; and he turned incorrectly. Thus, he failed that test, as well. On the basis of that evidence, defendant was arrested.
At the conclusion of the officer's testimony the municipal court denied defendant's suppression motion. The court deemed the officer's testimony to constitute trial testimony and, after evidence was presented regarding the alcotest testing of defendant and the results of that testing, found defendant guilty on the basis of both forms of evidence.
On appeal, the trial court reversed defendant's conviction insofar as it was based on alcotest results, determining that there had been inadequate proof that the police had conducted the proper twenty-minute observation prior to performing the test.
A separate hearing was conducted on the adequacy of the observational evidence as a basis for conviction. In that connection, the court viewed the fragmentary video evidence that existed, as well as the audio record of the two field sobriety tests. Following arguments by counsel, the court accepted Officer Ventura's testimony that he had observed defendant's failure to stop at a stop sign while driving at approximately sixty miles an hour. The court also accepted testimony that, following the stop, the officer observed defendant to have a flushed face and bloodshot eyes, slow movements, and slurred speech. The defendant's admission that he had consumed one beer was also noted.
Before substantively discussing the evidence of defendant's conduct after exiting his car, the court expressed its frustration at not having a full video recording of what had occurred.
I mean I'm disappointed just like both parties should be disappointed. How can we be here in the year 2011 and still miss it. For the last 20 years we tried to be a more advanced society with the technology that's available. Yet, this is not the best thing that we should do.
It sure would have made my life a lot easier if I could have seen everything. But I did get only a portion visually and a portion, not all of it, audible. I mean -
So I have to consider what Ventura said and his account of the stop and then compare it to the M.V.R. So I go like this. I start looking. If Ventura is credible then I believe there's sufficient evidence to prove beyond a reasonable doubt that [defendant] was driving while intoxicated.
In argument, defense counsel had noted that Officer Ventura had ordered defendant to open up a cooler that was located in the back of his car in order to determine whether it contained liquor, which it did not. Counsel argued to the court that at no point during that period of time, which was video-recorded, did defendant show any signs of unsteadiness, despite Officer Ventura's testimony that defendant had staggered when he got out of his car. Having reviewed the video, the court observed:
During the course of this it appears to me that he does stumble. His knee kind of locks. His legs are spread apart slightly and then the knee locks. - studder [sic] step. I don't know. That clip was so brief that it would be impossible for me to make a fair determination regarding his condition with that M.V.R. alone.
The court then continued by characterizing defendant's step as like that of a newborn foal.
Turning to the audio evidence of the one-leg stand test, the court stated that, after taking off his boots, defendant successfully counted to five, but then paused between five and six, between eleven and twelve, between twenty and twenty-one, and between twenty-two and twenty-three. The court then assumed that the pauses correlated with instances in which defendant had put his foot down and, finding four, the court concluded that Officer Ventura's description of defendant's performance had been corroborated.
However, the court reached a different conclusion with respect to the walk-and-turn test. Although it found that defendant's premature start was corroborated, employing the same type of analysis that it had used previously, the court found that defendant's counting was perfectly regular, and thus the stops in walking to which Officer Ventura testified had not been corroborated. After noting that the officer had found defendant's steps to be "not continuous," the court stated that "doesn't appear . . . to be the case. It doesn't appear the defendant stopped at all."
As a consequence, the court found Officer Ventura's testimony regarding one field sobriety test to have been corroborated and found the evidence with respect to the other to have been "entirely contradictory." After making those observations, the court stated:
That's what I have in this case. Based on that I find it generally credible. So I looked from there. - you don't need a lot with regard to observation cases.
Finding that there was proof of a speeding ticket, driving through a stop sign, strong alcohol odor, swaying, and the inability to perform the one-leg stand was sufficient to support a conviction for driving while intoxicated, the court found defendant guilty beyond a reasonable doubt. Nonetheless, the court observed that this was "a close case" and that it believed "this case could have gone either way[.]"
On appeal, defendant argues that the evidence presented was insufficient to establish his guilt beyond a reasonable doubt. We disagree.
Our role on appeal is to determine whether the Law Division court's de novo findings could reasonably have been reached on sufficient credible evidence present in the record. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing State v. Johnson, 42 N.J. 146, 162 (1964)), certif. denied, 209 N.J. 430 (2012). Evidence that defendant drove through a stop sign at a high rate of speed while a marked police cruiser was nearby certainly suggests a degree of inattention to road conditions that could support a finding that his mental faculties were impaired. Additionally, there was uncontroverted evidence that defendant's face was flushed, his eyes were watery, his gestures were fumbling in nature, and his speech slurred.
The court determined, after viewing videotape evidence, that defendant's walk was not entirely steady after he exited his car, and the court additionally determined that his inability to perform the one-leg stand test had been corroborated by the audio evidence. We have independently reviewed the evidence, determining that the fragmentary video produced in this case does not appear to support the conclusion that defendant's walk was unsteady when he exited his car. However, we agree that the audio evidence supports the conclusion that defendant did not successfully complete the oneleg stand test, concluding that defendant was unable to stand for any length of time on one leg and, additionally, that defendant, while counting to thirty, mixed up the sequence of numbers as he approached twenty. We find the audio evidence pertaining to the walk-and-turn test to have been somewhat inconclusive. We agree that defendant commenced the test before he was instructed to do so. We also agree that, if his numerical counting correlated with his pace, that he did not hesitate while taking the required nine steps in each direction. However, we have no way of corroborating whether he walked in a heel-to-toe fashion, whether he raised his arms for balance, or whether he performed the turn as instructed.
While we agree with the court that, because of the lack of a video recording of the complete stop, including roadside sobriety tests, the evidence was more difficult to evaluate than it otherwise would have been, we are satisfied that sufficient evidence existed to support, beyond a reasonable doubt, the conclusion that defendant's mental and physical faculties were sufficiently affected by alcohol to make it unsafe for him to operate a motor vehicle on the highway. State v. Tamburro, 68 N.J. 414, 421 (1975) (establishing standard of conduct); Johnson, supra, 42 N.J. at 165; see also State v. Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009) (recognizing our standard of review of the facts as requiring that the Law Division's judgment be supported by sufficient credible evidence in the record), certif. denied, 202 N.J. 346 (2010); R. 3:23-8(a).
The most troubling aspects of this matter are the court's comments, after it rendered its verdict, that the case was "close," and the court "believe[d] this case could have gone either way[.]" However, we are unwilling to conclude that, by uttering these statements, the court was revealing that it had utilized a preponderance of the evidence standard in judging defendant's guilt or had otherwise found the evidence insufficient to meet the requisite beyond a reasonable doubt standard. The remainder of the paragraph suggests that the court's musings were focused on the difficulty of correlating the aural evidence with the testimony presented by Officer Ventura. Accordingly, we affirm the judgment entered by the trial court.
© 1992-2012 VersusLaw Inc.