Opinion
DOCKET NO. A-4770-14T3
08-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN LANGAN, Defendant-Appellant.
Benedict and Altman, attorneys for appellant (Philip Nettl, on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 14-062-D. Benedict and Altman, attorneys for appellant (Philip Nettl, on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). PER CURIAM
Following a trial de novo in the Law Division, defendant Kevin Langan appeals from a May 18, 2015 order finding him guilty of driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50. For the reasons that follow, we affirm.
The Law Division also found defendant guilty of possession of an open container of alcohol, N.J.S.A. 39:4-51(b), and improper display of plates, N.J.S.A. 39:3-33. Defendant does not challenge those convictions on appeal. We therefore limit our discussion to defendant's DWI conviction.
I.
The matter was tried before the Montville Township Municipal Court on December 10, 2014. New Jersey State Trooper Joseph Serrechia testified that at 6:53 p.m. on April 7, 2014, he was on patrol on Interstate 80 in Montville Township and observed defendant's vehicle stuck on a grass embankment in the center median. Serrechia observed a truck tire located on the roadway, stopped the traffic with his lights and siren, and moved the debris in the roadway to the shoulder. Serrechia positioned his vehicle in the left lane of traffic and placed flares in the roadway to close the left lane.
Serrechia observed defendant walking near defendant's vehicle, approached defendant, and requested his license, registration, and insurance card. Serrechia detected the odor of alcohol on defendant's breath and observed that defendant's eyes were bloodshot. Defendant's speech was slurred and he swayed as he stood near Serrechia. Defendant fumbled with his wallet, slowly provided his driver's license, and was unable to produce his registration and insurance card.
Serrechia instructed defendant to remain standing on the driver's side of the vehicle as Serrechia walked to the passenger side. Defendant did not comply with the instruction and Serrechia again directed that defendant return to the driver's side of the vehicle. Defendant again failed to comply with the instruction.
Serrechia asked defendant how much alcohol he had consumed and when he last drank alcohol. Defendant said that he and his girlfriend drank a six-pack of beer a couple of hours earlier at a Yankees game. Defendant explained that he had been at the Yankees game and was on his way to his home in Piscataway. Serrechia thought defendant's statements were unusual because Interstate 80 did not provide a direct route to Piscataway from Yankee Stadium.
Serrechia performed the Horizontal Gaze Nystagmus (HGN) test on defendant and testified that defendant failed the test when his eyes were "choppy" in attempting to follow the stimulus of Serrechia's index finger. Serrechia determined that defendant's breath smelled of alcohol and observed that defendant's face was flushed, he swayed and spread his feet for balance, and he leaned against his vehicle. Serrechia observed empty beer cans located between the driver and passenger seats of the vehicle and a half-full bottle of whiskey in the vehicle. Serrechia placed defendant under arrest for DWI and transported him to the State Police barracks.
Evidence regarding defendant's performance on the HGN was admitted solely to show the sequence of events and establish probable cause for defendant's arrest. State v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000).
While at the barracks, Serrechia asked defendant how many alcoholic beverages he had consumed and defendant stated that he had four beers between 1:00 and 4:00 p.m. Defendant was administered a chemical breath test which revealed a blood alcohol content (BAC) of 0.17%, which was well above the concentration of .08% required for a per se violation for driving while intoxicated under N.J.S.A. 39:4-50(a)(2).
Defendant's girlfriend testified on his behalf at trial. She said that on April 7, 2014, she and defendant purchased a six-pack of beer and bottle of whiskey while on their way to a Yankees game. Prior to the game, defendant drank two or three beers and a shot of whiskey. She said defendant had two more beers during the game but did not drink alcohol after the end of the seventh inning.
Defendant's girlfriend testified that she fell asleep during their car ride after the game, she awoke after hearing a loud bang, and defendant said that they hit something. After exiting the vehicle, defendant phoned his sister and returned to the vehicle. Defendant's girlfriend testified that she approached the vehicle and saw defendant drinking from the whiskey bottle when Serrechia arrived. She instructed the defendant to put the bottle down because the police had arrived. She saw defendant put the cap on the bottle, place it in a cooler, and exit the vehicle.
On cross-examination, defendant's girlfriend acknowledged that she saw defendant holding the whiskey bottle while he was in the vehicle, but she did not see him drinking from it. She also testified that defendant never told her that he drank from the whiskey bottle after the accident. She testified that approximately five or six minutes passed from the time she exited the vehicle after the accident until Serrechia arrived on the scene.
Defendant testified that he stopped drinking alcohol prior to the seventh inning of the Yankees game. According to defendant, he and his girlfriend left the stadium at 6:00 p.m. and he was on Route 80 because he planned to go to the Bridgewater Commons Mall for dinner. He stated that as he traveled on Route 80, he observed something black go underneath his car, heard a loud bang, and felt his car pull to the left because his tire blew out. Defendant stated that he was able to drive onto the median where he stopped, but his car was totaled and its suspension was separated from its frame.
Defendant testified that he was upset by what occurred, knew he would not be able to drive the vehicle, and decided to have a "couple of swigs" from the whiskey bottle to calm down. Defendant said he had four or five swigs of whiskey, and when his girlfriend told him that the police arrived, he put the bottle in the cooler. He stated that he then took another swig of whiskey and left the bottle near the seat. Defendant testified that a "swig" is more than a "shot" of alcohol.
Defendant testified that he told Serrechia at the scene that he only drank beer at the Yankees game because he did not remember drinking whiskey. He also stated that he did not admit to drinking whiskey while at the barracks because he did not want to contradict his earlier statements to Serrechia and because he believed he would pass the chemical breath test. Defendant denied being intoxicated at the time of the accident and said that the beer cans in the vehicle had been used as ash trays. He did not call the police after the accident because he was on the phone with his sister.
The municipal court judge determined that he did not believe defendant's testimony concerning defendant's purported post-accident consumption of alcohol, and found defendant guilty of DWI. The court rejected as incredible defendant's testimony that, after being involved in a motor vehicle accident on a multi-lane interstate highway at dusk on a rainy night, the first things defendant chose to do was call his sister on the telephone, smoke cigarettes, and drink whiskey until the State Trooper arrived. The court noted that defendant's girlfriend did not see him drink any whiskey after the accident.
The municipal court also noted that the time line provided by defendant and his girlfriend did not support defendant's version of the events. The court found it illogical that during the ten minutes after the accident and before Serrechia arrived, an otherwise sober defendant consumed enough alcohol to metabolize it sufficiently to cause odor on his breath, constrict his blood vessels causing bloodshot eyes, and adversely affect his motor skills. The court found incredible defendant's testimony that he consumed "the majority of [his] alcohol for the day on the side of the road."
The municipal court judge found Serrechia's testimony to be credible and found defendant guilty of DWI based upon Serrechia's observations and defendant's BAC of 0.17%. Defendant was sentenced as a second-time offender to a two-year license suspension, installation of an ignition interlock device, thirty days of community service, two days of jail which defendant could serve at the Intoxicated Driver Resource Center, and fines and penalties. The municipal court entered a judgment of conviction on February 20, 2015. Defendant appealed.
The municipal court denied defendant's motion for a stay of sentence. Defendant filed an appeal of the denial to the Law Division, which in a January 13, 2015 order denied defendant's motion for a stay of sentence pending disposition of the appeal of his DWI conviction. --------
At the trial de novo before the Law Division, the court reviewed the testimony of the witnesses and the municipal court's credibility determinations and found that Serrechia's training and experience supported the municipal judge's conclusion that Serrechia made credible and cogent observations of defendant and that Serrechia's testimony was credible. The court also noted the municipal court's determination that defendant's testimony regarding his purported post-accident consumption of alcohol was "incredible and difficult to believe."
Based upon its review of the record and the municipal court's credibility determinations, the court found Serrechia's observations of defendant and defendant's BAC of 0.17% supported a conviction for DWI. The court rejected defendant's argument that his purported post-accident consumption of alcohol supported the "glove-box defense" to a DWI charge that was addressed in State v. Snyder, 337 N.J. Super. 59 (App. Div. 2001). The court found that based upon credibility determinations, defendant's testimony did not support the asserted defense. The court also found it was not credible that an individual who had an "accident in the middle of Route 80" and whose car was "totaled . . . would pull out a bottle of Fireball whiskey and start swigging away on it while they're waiting for the State Police to come." The court stated that it did "not accept that to be credible whatsoever" and "did not accept that as truthful testimony."
The court also noted that defendant's girlfriend's testimony did not corroborate his purported post-accident consumption of alcohol because she did not see defendant consume any whiskey after the accident occurred. The court found that there was no credible evidence supporting his "glove-box defense" and therefore rejected it.
On May 18, 2015, the Law Division judge entered an order finding defendant guilty of DWI and imposing sentence. This appeal followed.
On appeal, defendant makes the following arguments:
POINT I:
The State failed to prove [d]efendant's guilt of [N. J.S.A.] 39:4-50, because post-operation consumption was clearly established.
A. The Law Division misconstrued the credibility findings of the Municipal Court.
B. Post-operation alcohol consumption is a valid defense to N.J.S.A. 39:4-50 when established by credible evidence in the record.
II.
On an appeal taken from the Law Division's final decision after a trial de novo, "[o]ur review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). This requires "'consideration of the proofs as a whole,' and not merely those offered by the defendant." State v. Kuropchak, 221 N.J. 368, 383 (2015) (quoting Johnson, supra, 42 N.J. at 162). "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." Ibid. (quoting R. 2:10-2).
Like the Law Division, we defer to credibility findings made by the trial court. Id. at 382. We review the Law Division's interpretation of the law de novo without according any special deference to the court's interpretation of "the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
On appeal, defendant does not challenge the results of the chemical breath test, which yielded a BAC of 0.17% and established a per se offense of DWI under N.J.S.A. 39:4-50. State v. Sorensen, 439 N.J. Super. 471, 477 (App. Div. 2015). He also does not challenge the court's finding that Serrechia's observations supported defendant's conviction. See State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993) (holding defendant's slurred speech, abrasive behavior, disheveled appearance, and instability sufficient to find intoxication beyond a reasonable doubt); State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995) (finding a police officer's observations without field sobriety test evidence were sufficient to support a DWI conviction), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996).
Defendant instead argues that his post-accident consumption of alcohol constituted a defense to the offense under Snyder, supra, 337 N.J. Super. 59, and that the Law Division judge's credibility determinations, and factual findings based upon those determinations, were in error. We disagree.
We will defer to a trial court's credibility determinations which are influenced by observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. State v. Jamerson, 153 N.J. 318, 341 (1998); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Johnson, supra, 42 N.J. at 161. The rule of deference is more compelling where, as here, the municipal court and Law Division have entered concurrent judgments based on identical factual determinations. "Under the two-court rule, [we] ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Reece, 222 N.J. 154, 166-67 (2015) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)).
We are not persuaded by defendant's contention that the Law Division judge misconstrued the credibility determinations made by the municipal court. The record does not support defendant's argument. The municipal court and Law Division separately considered defendant's testimony concerning his purported post-accident consumption of alcohol and unequivocally rejected the testimony as not credible. We defer to those findings because they are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013).
Defendant's remaining argument, that his post-accident consumption of whiskey supported the "glove box defense" discussed in Snyder, is dependent solely upon an acceptance of his testimony. Because we are convinced that the Law Division properly rejected defendant's testimony as incredible, there was no credible evidence supporting the defense.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION