NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Hector Rojas appeals from a judgment of conviction after his trial de novo for two motor vehicle violations: driving while intoxicated (DWI), N.J.S.A. 39:4-50; and unclear plates, N.J.S.A. 39:3-33. Defendant was sentenced to three-months license suspension, attendance at an Intoxicated Driver Resource Center (IDRC) for twelve hours, and appropriate fines and penalties. We affirm.
I.
The record discloses the following facts adduced from the trial de novo in the Law Division on the record developed in the municipal court. On December 16, 2011, at approximately 2:31 a.m., Officer Eric Hollenstein of the Riverdale Police Department observed a black SUV with both its front and rear license plates obstructed by EZ Pass brackets and tags. Officer Hollenstein followed the SUV and noticed that the vehicle was traveling at a low rate of speed, approximately 50 miles-per-hour (mph) in a 65 mph zone. Officer Hollenstein then effectuated a motor vehicle stop.
When Officer Hollenstein approached the driver's side window he detected an odor of alcohol. The officer also noticed that defendant's eyes were bloodshot and glassy. Officer Hollenstein asked defendant to exit the vehicle and perform a field sobriety test. Officer Hollenstein first conducted a horizontal gaze nystagmus (HGN) test. During this test, defendant was swaying.
He then administered a walk-and-turn test. While Officer Hollenstein gave instructions, defendant was unable to maintain the starting position, and was staggering, swaying, and having trouble standing up straight. When defendant attempted the test, he took one too many steps and did not touch heel-to-toe on any step as instructed. Defendant's second attempt of the test had to be stopped because his hands were in his pockets. On defendant's third attempt, defendant took two additional steps, failed to count out loud, and did not touch heel-to-toe on every step as instructed. Defendant was also confused on how many steps he had taken and had to ask the officer.
Officer Hollenstein also administered a one-leg-stand test. While the officer was giving the instructions, defendant had difficulty listening and understanding both verbal instructions and physical demonstrations of the test. Defendant's balance was very poor, he did not accurately count during the test, and the officer had to end the test for defendant's safety.
Based on all these observations, Officer Hollenstein believed defendant was operating his vehicle while under the influence of alcohol and he placed him under arrest. Defendant was transported to the Riverdale Police Department for administration of an Alcotest. After being read the Standard Statement of the Implied Consent Statute, defendant was asked if he would provide breath samples and he responded, "No." Defendant was asked a second time and again he responded "No." Defendant then filled out a drinking/driving questionnaire stating that he had consumed three beers.
Defendant filed a motion to suppress in Riverdale Municipal Court. A hearing was conduct at the conclusion of which the municipal court judge denied the motion. A trial was then conducted before the same judge.
At trial, Dr. Paul Greenberg, an expert in the field of podiatry and field sobriety testing, testified on behalf of defendant. Dr. Greenberg testified that defendant was significantly overweight and presented with a history of vertigo and anxiety. He further testified that he conducted the walk-and-turn test on defendant and defendant was unable to walk heel-to-toe, stepped off the line, had to raise his arms for balance, and lost his balance during the instructional position. Dr. Greenburg also administered the one-leg-stand test which defendant was unable to accomplish. He testified that defendant's weight affected his ability to perform the tests.
Defendant testified that he suffered from vertigo stemming from a prior car accident. He stated that on the day of the incident he had three beers between the hours of 8:45 p.m. and 12:45 a.m. He further stated that he was "a mess emotionally" because he and his wife had decided to separate after fourteen years of marriage. He stated that he did not commit any moving violations and that he was unable to perform the walk-and-turn test because he was scared and nervous about his weight. Defendant stated that the one-leg test was very difficult for him because of his weight.
On March 13, 2012, the municipal court judge found defendant guilty of driving while intoxicated, N.J.S.A. 39:4-50; refusal to give a breath sample, N.J.S.A. 39:4-50.2; and unclear plates, N.J.S.A. 39:3-33. The charge of failure to exhibit a valid registration card, N.J.S.A. 39:3-29(b), was dismissed.
Defendant appealed and on September 20, 2012, a de novo trial was held before Judge Gilson in the Law Division. On October 9, 2012, the Law Division judge found defendant guilty of driving while intoxicated and unclear plates, but not guilty of refusal to submit to breath samples. This appeal ensued.
On appeal, defendant presents the following point for our consideration:
Point I
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION FOR DRIVING WHILE INTOXICATED.
II.
Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J.Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give `due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 157 (1964)). "Our 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." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).
Since the Law Division judge is not in a position to judge the credibility of witnesses, he should defer to the credibility findings of the municipal court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts 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." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). In this case, the Law Division judge clearly understood that his role was to make independent findings; findings that, ultimately, were reflected in his written opinion. However, no such deference is owed to the Law Division or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts. See State v. Handy, 206 N.J. 39, 45 (2011) (stating "appellate review of legal determinations is plenary").
It is well-established that an officer's subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. See State v. Cryan, 363 N.J.Super. 442, 454-55 (App. Div. 2003) (sustaining DWI conviction based on proofs of defendant's bloodshot eyes, hostility and strong odor of alcohol); State v. Cleverley, 348 N.J.Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on the defendant's operation of a motor vehicle without its headlights on and the officer's observation of the odor of alcohol on the defendant's breath, inability to perform field sobriety tests, combativeness, and swaying); State v. Oliveri, 336 N.J.Super. 244, 251-52 (App. Div. 2001) (sustaining DWI conviction on officer's subjective observations of the defendant's watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and admission to drinking alcohol earlier in the day).
In his review, the Law Division judge examined the totality of the evidence and found:
Here, Patrolman Hollenstein has testified to being a police officers for six (6) years and having come into contact with approximately thirty (30) individuals in the context of DWI investigations. Patrolman Hollenstein observed Defendant drive for several minutes before effectuating a motor vehicle stop. It is undisputed that Patrolman Hollenstein did not observe Defendant lose control of the vehicle, nor did he observe Defendant's vehicle swerve or weave. Upon stopping the vehicle and approaching Defendant, Patrolman testified to observing Defendant with "bloodshot" and "glassy" eyes. Additionally, Patrolman Hollenstein testified that he smelt the odor of alcohol. Defendant initially denied drinking any alcohol that evening. Then, Defendant later admitted to consuming three (3) beers in the period of 8:45 p.m. to 12:45 a.m.
Based upon the observations he made, Patrolman Hollenstein believed that Defendant was operating his vehicle while under the influence of alcohol. Defendant argues that he has presented evidence, including expert testimony, that his weight was the reason that he failed the administered field sobriety tests. However, Defendant's weight should not have affected the Defendant's ability to pass the instructional components of the field sobriety tests. Defendant had difficulty with the mental parts, as well as the physical parts of the field sobriety tests. Additionally, Defendant's weight did not provide an explanation for the odor of alcohol that emanated from Defendant's vehicle not did it explain why his eyes were "bloodshot" and "glassy."
For the walk-and-turn test, Defendant was instructed that he was to count his steps out loud while he took nine-heel-to-toe steps down the line and then nine heel-to-toe steps back to the start position. When defendant attempted the test, he took ten (10) steps, instead of nine (9). Defendant's second attempt of the walk-and-turn test was stopped because Defendant's hands were in his pockets. Defendant attempted the test a third time. Defendant took eleven (11) steps and defendant did not correctly count out loud his steps. Defendant was administered the walk-and-turn test a total of three (3) times, due to his inability to follow instructions. During the instructional phase of the one-legged-stand test, Defendant was instructed to count while performing the test and counting by "one one-thousand" until he was told to stop. Defendant did not accurately count during this test.
Moreover, the Court is not persuaded by Defendant's introduction of Dr. Greenberg's expert witness testimony regarding the instant matter. Dr. Greenberg performed a series of field sobriety tests on Defendant after the incident and while Defendant was sober. Observations and evaluations that occurred after the incident cannot be given substantial weight or deference against the contemporaneous observations of an experienced and trained law enforcement officer who was on the scene of the incident.
Here, again, Patrolman Hollenstein was found to be credible by Judge Paparazzo, who had the chance to observe both the testimony of the Patrolman and Dr. Greenberg. Judge Paparazzo's credibility finding is consistent with this Court's de novo and independent review of the transcript. The evidence in this matter demonstrates beyond a reasonable doubt that Defendant drove while intoxicated, in violation of N.J.S.A. 39:4-50.
An arresting officer's field observations of a defendant's appearance, behavior, breath, and speech may sustain a defendant's DWI conviction. See State v. Kent, 391 N.J.Super. 352, 383-84 (App. Div. 2007). That is the case here. Defendant argues that both judges placed too much emphasis on the field sobriety tests, and too little emphasis on Dr. Greenberg's testimony. Those facts and credibility determinations, however, are supported by sufficient credible evidence in the record. Johnson, supra, 42 N.J. at 162. Dr. Greenberg's "alternative explanation for [defendant's] conduct ... does not render the trial court's conclusions legally defective." Cryan, supra, 363 N.J. Super. at 457.
We discern no reason to disturb the Law Division judge's determination that defendant was guilty of DWI beyond a reasonable doubt.
Affirmed.
