August 13, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CAMPO ARAQUE, a/k/a IVAN MARTINEZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-05-11.
Cillick & Smith, attorneys for appellant (Edward W. Cillick, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (William P. Miller, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Simonelli and Accurso.
Following a trial de novo in the Law Division, defendant Campo Araque was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50. He appeals. As this was, at least, his fourth such conviction, defendant was sentenced to 180 days' jail time, to be served in the Bergen County Jail, and a ten-year suspension of his driver's license. In addition, the judge imposed a $1006 fine, a $100 surcharge, a $50 VCCB assessment, a $75 SNSF penalty, a $100 payment to the DDE Fund, $33 in costs and installation of an interlock device during his suspension and for three years upon reinstatement.
The municipal court judge credited the arresting officer's testimony that he was traveling east on Madison Avenue in Cresskill when he saw defendant, who was traveling west, partially cross the double yellow lines and enter into the eastbound lane and then return to the westbound lane of travel. The officer turned to follow defendant and observed him enter the Knickerbocker Road traffic circle. The officer watched as defendant traveled once around the circle before exiting northbound on Knickerbocker Road. The officer pulled defendant over and requested backup. The time was 2:27 a.m.
Upon speaking to defendant, the officer immediately noticed the smell of alcohol on his breath. Defendant told the officer he had come from Union City and was going to Rochelle Park. The officer noted defendant's watery, bloodshot eyes and watched as he slowly and fumblingly produced his license and multiple insurance cards. Defendant did not produce his registration and the officer asked for it again. Defendant rummaged through his glove box for the document. Although the officer could clearly see the registration among the items in the glove box, defendant told the officer he could not find it.
Back-up arrived as the arresting officer was asking defendant to get out of the car. The second officer also testified to events at the scene and police headquarters. The municipal judge found both officers credible and coherent. The second officer testified that he noticed an odor of alcohol emanating from defendant. The officers testified that they had spoken English to defendant, who responded in English. The arresting officer could speak Spanish, a fact known to the backup officer. Although both officers noticed defendant's accent, neither had any difficulty communicating with him. Defendant's words were slurred, but he answered questions in English and readily followed their instructions.
Both officers testified that defendant used the roof of the car to steady himself as he got out of the vehicle, and leaned on the officers as he crossed the street at their request. Both officers testified to the arresting officer's instructions to defendant as to how to perform the field sobriety tests and his demonstration of those maneuvers. Although defendant attempted to perform the tests, he could not do so. As defendant bungled the one-legged stand, he apologized to the arresting officer, saying in English, "Sorry, Officer, I made a big mistake tonight."
Defendant was arrested and transported to police headquarters. As the officers were conducting an inventory of the contents of defendant's wallet, they discovered a second driver's license and other cards in a different name. The license defendant had produced at roadside was a false one. Defendant's own license had been suspended on a prior conviction for DWI.
A third officer testified to his attempts to administer the Alcotest to defendant. The municipal court judge likewise found this officer forthright and credible. The officer testified that he filled out several forms with defendant over which they conversed in English. The officer testified that defendant answered "no" to whether he was on alcohol or drugs and made no response to the officer's question about medication. The officer stated that defendant repeatedly grabbed his arm to steady himself as the officer escorted defendant to the Alcotest machine. Defendant supplied several inadequate breath samples before the administering officer was forced to abandon the test.
Defendant presented the testimony of a physician, Linda Graves, to testify as to the effects Cardizem and Benicar, two medications defendant's doctor had prescribed to control defendant's hypertension, could have on defendant's ability to perform the field sobriety tests. Dr. Graves opined that the side effects of those drugs could cause dizziness and gait abnormality which could have affected defendant's performance on the field sobriety tests.
Defendant testified on his own behalf through an interpreter. He explained that he was driving home from work after midnight when he got lost. He owned a restaurant in Union City and had made the half hour drive there daily from his home in Rochelle Park for the last five years. Defendant testified that he was born in Colombia, and although having lived in New Jersey for over twenty years, spoke "very little" English. He said that he worked seven days a week from seven in the morning until after midnight. His restaurant had a liquor license and defendant admitted to having had a Coors Light beer at 10:00 p.m.
Defendant acknowledged that he may have crossed into the arresting officer's lane and been confused at the traffic circle because he was very tired and unfamiliar with the names of the roads in Cresskill. He testified that he understood very little of what the officers had said to him and told them various times that he could not comprehend them. Besides being unable to understand the instructions for the field sobriety tests, defendant testified that could not perform them because he was tired and did not feel well after taking his medication earlier in the day.
The municipal court judge found defendant's testimony to the court not credible. The judge rejected defendant's testimony that he spoke little English and did not understand the officers as unworthy of belief. The judge noted that defendant answered at least one question at trial in English before the interpreter had translated the question into Spanish. Further, he found that defendant's experience in running a restaurant for many years made his professed ignorance of English "incredible." The judge also noted that the arresting officer could have easily communicated with defendant in Spanish had defendant actually expressed his inability to understand the officers as he testified. The judge found defendant's explanation of having wandered about Bergen County lost for over two hours completely implausible and noted "that there's another reason for the defendant being that lost."
Although finding Dr. Graves qualified, the municipal court judge rejected her testimony. The judge noted that Dr. Graves never examined defendant, did not know whether he had actually taken his medication as prescribed, and could offer no opinion as to his actual condition on the night of his arrest. By her own testimony her opinion was limited to what effect the medications could have had on defendant that night. She offered no opinion as to what effect those drugs actually had on defendant.
The municipal court judge found on the basis of the credible testimony that defendant had consumed alcoholic beverages on the night of his arrest and exhibited signs of intoxication when he crossed the yellow lines. The judge further found that his failure to perform the field sobriety tests was because he was under the influence of alcohol. He concluded that the State proved beyond a reasonable doubt that defendant was guilty of driving while under the influence of intoxicating liquor or drugs.
The Law Division Judge, reviewing the record de novo, deferred to the credibility findings of the municipal court judge and found the testimony of the officers more credible than that of defendant. After reviewing the testimony, the judge summarized his findings regarding the cumulative effect of the "many indications that this defendant was under the influence of an alcoholic beverage, " even taking into account the expert's testimony of the possible effects of medication.
Let's total them up. The vehicle crossed the double yellow line. There was an odor of an alcoholic beverage. That's two. I'll disregard the watery eyes and bloodshot eyes. Couldn't find license and registration easily, the hands were fumbling and slow. Responded in English and said I'm sorry, Officer, I made a big mistake tonight.
The fact that he mentally could not cognitively calculate nine steps and turn around and come back nine steps but walked fifteen steps on the heel to toe test. I give it no weight to the fact that he did not walk a straight line or that he fell off the straight line or did not touch heel to toe because that may have been a side effect of the medication. And although the expert was given probably less weight than I gave her in this de novo trial, I don't think there's enough to explain the circumstances for this defendant. So, Dr. Graves' testimony does not obviate, at least those five subsequent -- independent cumulative observations of someone under the influence of an alcoholic beverage.
Defendant's only contention on this appeal is that the State failed to prove him guilty of DWI beyond a reasonable doubt. He argues that his testimony that he could not understand the officers' instructions and the expert's testimony that defendant's behavior "could have been the result of the side effects of the medications" created reasonable doubt. That argument does not warrant discussion in a written opinion given this record. R. 2:11-3(e)(2).
On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division Judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division — not the municipal court. Id. at 162. However, as in the Law Division, we are not in as good of a position as the municipal court judge to determine credibility and should, therefore, refrain from making new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J.Super. 374, 383 (App. Div. 2000). Based upon our review of the record, we are satisfied that the record amply supports the Law Division Judge's findings and conclusion that defendant was guilty of DWI beyond a reasonable doubt. Affirmed.