STATE OF NEW JERSEY VS. DANIEL M. PAGE(15-043, MORRIS COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R.1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-4518-15T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    DANIEL M. PAGE,
    Defendant-Appellant.
    _______________________________
    Submitted June 1, 2017 - Decided July 5, 2017
    Before Judges Lihotz and Mawla.
    On appeal from Superior Court of New Jersey,
    Law Division, Morris County, Municipal Appeal
    No. 15-043.
    Marshall, Bonus, Proetta & Oliver, attorneys
    for appellant (Jeff Thakker, of counsel and
    on the brief; Colin E. Bonus, on the brief).
    Fredric M. Knapp, Morris County Prosecutor,
    attorney   for  respondent   (Paula  Jordao,
    Assistant Prosecutor, on the brief).
    PER CURIAM
    Defendant Daniel Page appeals from a May 9, 2016                     order
    adjudicating him guilty of failure to maintain lane N.J.S.A. 39:4-
    88(b) and driving while intoxicated (DWI) N.J.S.A. 39:4-50.                    We
    affirm.
    On November 12, 2014, at approximately 11:55 p.m., Officer
    George Jadue of the Mount Olive Township Police Department was
    heading westbound on Route 46, when he observed a vehicle traveling
    in the left lane jerk over the yellow line and back into its lane.
    Officer Jadue continued to follow the vehicle and activated his
    Motor Vehicle Recorder (MVR) to record the erratic driving before
    effectuating a motor vehicle stop.
    Upon encountering defendant in his vehicle, Officer Jadue
    noticed      his   speech   was   slow   and   his   eyes   were   "watery   and
    bloodshot." Officer Jadue asked if defendant had consumed anything
    and defendant responded he consumed two beers at a bar.                Officer
    Jadue instructed defendant to exit his car                  to perform field
    sobriety tests.         The officer asked defendant if he would have
    difficulty performing the tests, and defendant replied, "no, no,
    no."
    As Officer Jadue administered the sobriety tests, he noted
    defendant's eyes were still bloodshot and watery, and he was unable
    to maintain his balance.          Defendant failed a heel-to-toe test and
    lost   his    balance    while    turning    around.    Officer     Jadue    also
    administered a one-leg stand test and defendant struggled to keep
    his left foot raised and did not properly follow instructions.
    2                              A-4518-15T2
    Officer Jadue noted defendant swayed and lifted his right arm over
    six inches and still lost his balance.
    Officer Jadue placed defendant under arrest for DWI and read
    him his Miranda warnings.     The officer testified he smelled an
    odor of alcohol emanating from defendant during the field sobriety
    tests, and when he placed defendant in the police vehicle, there
    was an odor inside the vehicle.
    Once   at   police   headquarters,   Officer   Jadue     obtained
    defendant's consent to a breath test, but as the officer began
    entering data into the Alcotest machine a "solution change" warning
    was indicated.   Thus, Officer Jadue transported defendant to the
    New Jersey State Police barracks in Netcong, which had an Alcotest
    machine.    The officer and defendant arrived at the barracks at
    1:33 a.m.    There, Trooper Andrew Berwise operated the Alcotest
    machine.    The first machine "froze," and a second machine was
    utilized to administer the breath test to defendant.        During the
    testing, Officer Jadue left defendant with Trooper Berwise to
    contact his police department to report his location and status.
    Trooper Berwise remained with defendant at all times and
    observed him before and during administration of the Alcotest.
    The Alcotest results yielded a blood alcohol concentration (BAC)
    of .15 percent at 2:52 a.m. and 2:55 a.m.
    3                            A-4518-15T2
    On October 19, 2015, a trial occurred in the municipal court.
    The State offered the testimony of Officer Jadue, Trooper Berwise
    and Herbert Leckie, an expert in the administration of sobriety
    tests.   Defendant adduced expert testimony of Dr. Fuwaz Nesheiwat,
    a podiatrist, to explain why defendant failed the field sobriety
    tests.   Defendant was convicted of DWI and failure to maintain his
    lane of travel.   He appealed and a trial de novo occurred in the
    Law Division with the same outcome, resulting in the order he now
    appeals.
    Defendant contends the following:
    I. THE CONFLICTING ACCOUNTS OF OFFICER JADUE
    AND TROOPER BERWISE PRECLUDED A FINDING BY
    "CLEAR AND CONVINCING EVIDENCE" THAT MR. PAGE
    WAS OBSERVED FOR [TWENTY] MINUTES PRIOR TO THE
    2:50 A.M. BREATH TEST; BECAUSE THE EVIDENCE
    WAS NECESSARILY INSUFFICIENT, THIS COURT
    SHOULD REVERSE AND REMAND, WITH A DIRECTIVE
    TO THE LAW DIVISION TO SUPPRESS THE ALCOTEST
    RESULTS AND DISMISS THE "PER SE" DWI CHARGE.
    II.   THE LAW DIVISION DID NOT ADDRESS THE
    REASON FOR THE DELAY IN THE BREATH-TESTING;
    MR. PAGE ESTABLISHED REASONABLE DOUBT UNDER
    STATE V. TISCHIO, THEREBY MANDATING ACQUITTAL
    ON THE "PER SE" DWI CHARGE.
    III. HAVING PREVIOUSLY GRANTED HOLUP RELIEF,
    IT WAS AN ABUSE OF DISCRETION TO DENY
    DISCOVERY ON THE ALCOTEST MACHINE(S); THIS
    COURT SHOULD REVERSE THE ERRONEOUS DISPOSITION
    OF   MR.   PAGE'S   RIGHT   TO   COURT-ORDERED
    DISCOVERY.
    IV. A MUNICIPAL COURT CANNOT HEAR THE DEFENSE
    UNLESS AND UNTIL THE STATE HAS CONCLUDED ITS
    4                          A-4518-15T2
    CASE AND THE DEFENSE HAS [BEEN] GIVEN A CHANCE
    TO RAISE APPROPRIATE MOTIONS; THE PROCEEDINGS
    BELOW ARE A NULLITY AS THE MUNICIPAL COURT
    DISPENSED WITH THE PRESUMPTION OF MR. PAGE'S
    INNOCENCE.
    V. THE LAW DIVISION'S FINDINGS ON MR. PAGE'S
    "INTOXICATION"   AND   LANE-MAINTENANCE   ARE
    INSUFFICIENT; SINCE THERE WAS REASONABLE
    DOUBT, HIS OBSERVATION-BASED CONVICTIONS (FOR
    FAILURE TO MAINTAIN LANE AND DWI) SHOULD BE
    REVERSED.
    We begin by reciting our scope of review.            In reviewing a
    trial court's decision on a municipal appeal, we determine whether
    sufficient    credible   evidence   in   the   record   supports   the   Law
    Division's decision.     State v. Johnson, 
    42 N.J. 146
    , 162 (1964).
    Unlike the Law Division, which conducts a trial de novo on the
    record pursuant to Rule 3:23-8(a)(2), we do not independently
    assess the evidence.     State v. Locurto, 
    157 N.J. 463
    , 471 (1999).
    In addition, under the two-court rule, only "a very obvious and
    exceptional showing of error["] will support setting aside the Law
    Division and municipal court's "concurrent findings of facts[.]"
    
    Id. at 474.
       However, when issues on appeal turn on purely legal
    determinations, our review is plenary.         State v. Adubato, 420 N.J.
    Super. 167, 176 (App. Div. 2011), certif. denied, 
    209 N.J. 430
    (2012).   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 defer to the trial court's
    5                               A-4518-15T2
    credibility findings.     State v. Cerefice, 
    335 N.J. Super. 374
    , 383
    (App. Div. 2000).
    I.
    Defendant argues the accounts of Officer Jadue and Trooper
    Berwise conflicted to a degree there was insufficient evidence for
    the trial judge to conclude clearly and convincingly defendant was
    observed   for   the   requisite   twenty   minutes   necessary   for   the
    Alcotest results to be valid.       We disagree.
    The Supreme Court has held the valid results of an Alcotest
    to be "generally scientifically reliable" to support a per se
    violation of driving while intoxicated.        State v. Chun, 
    194 N.J. 54
    , 65, cert. denied, Chun v. New Jersey, 
    555 U.S. 825
    , 
    129 S. Ct. 158
    , 
    172 L. Ed. 2d 41
    (2008).            The State must show "(1) the
    [Alcotest] device was in working order and had been inspected
    according to procedure; (2) the operator was certified; and (3)
    the test was administered according to official procedure."             
    Id. at 134.
    The results of the test and adherence to appropriate procedure
    must be proven "by clear and convincing proof." State v. Campbell,
    
    436 N.J. Super. 264
    , 270 (2014).         The State may meet its burden
    by testimony from the operator of the machine that in the twenty
    minutes preceding the test the subject did not "ingest, regurgitate
    or place anything in his or her mouth that may compromise the
    6                             A-4518-15T2
    reliability of the test results."            State v. Ugrovics, 410 N.J.
    Super. 482, 489-90 (App. Div. 2009).         The operator of the Alcotest
    machine must "observe the test subject for the required twenty
    minute period of time to ensure that no alcohol has entered the
    person's mouth while he or she is awaiting the start of the testing
    sequence."    
    Chun, supra
    , 194 N.J. at 79, cert. denied, 
    555 U.S. 825
    , 
    129 S. Ct. 158
    , 
    172 L. Ed. 2d 41
    (2008).
    Here, the trial judge addressed and rejected defendant's
    claim the testimony of the officer and the trooper conflicted.
    The judge stated:
    In the case at bar, Trooper Berwise gave
    credible testimony that he continuously
    observed defendant for twenty minutes prior
    to administering the Alcotest.    Contrary to
    defendant's assertion, the testimony concern-
    ing the twenty-minute observation period, by
    both Trooper Berwise and Officer Jadue, was
    not contradictory.    Officer Jadue testified
    the trooper was with defendant the whole time.
    In the [twenty-minute] period prior to
    administering the Alcotest, Trooper Berwise
    also made sure that defendant did not have any
    objects in his mouth and that defendant did
    not   burp,   hiccup,   or  do   anything   to
    contaminate the breath sample.
    The     transcripts   of   each      officer's    testimony       do   not
    demonstrate    any   contradiction     and   support   the     trial   judge's
    conclusion.      Officer   Jadue     testified   he    began    the    initial
    observation period when the first machine froze and then left
    defendant with Trooper Berwise to contact police headquarters and
    7                                A-4518-15T2
    clearly stated:        "The trooper was there the entire time, because
    the room was open."       Likewise, Trooper Berwise's testimony was the
    same:
    Q    And you mentioned the [twenty-minute]
    observation period. Did you conduct that, uh,
    observation period?
    A   Yes.
    The    trial      judge's   findings   are   clearly   supported    by
    substantial and credible evidence in the record.              Defendant's
    conviction for DWI on a per se basis based on the Alcotest results
    is affirmed.
    II.
    Defendant challenges his conviction by asserting the trial
    judge did not address the reason for the delay in administering
    the Alcotest.     We find this argument unavailing.
    Our Supreme Court has held breath tests "must be taken 'within
    a reasonable time' after the arrest."        State v. Tischio, 
    107 N.J. 504
    , 521 (1987). "[P]roof of operation of a motor vehicle, coupled
    with a blood alcohol level of .10% or greater taken from a breath
    or blood test administered within a reasonable period of time
    after operation constitutes a per se violation of the statute."
    State v. Snyder, 
    337 N.J. Super. 59
    , 65 (App. Div. 2001).           There
    is no bright line limitation for administering the test after
    arrest.    See State v. Dannemiller, 
    229 N.J. Super. 187
    , 189 (App.
    8                           A-4518-15T2
    Div. 1988).   The purpose of the reasonable time period requirement
    is to prevent "prolonged detention of a motorist by the police in
    the mistaken belief that the blood-alcohol level would then produce
    a result more favorable to the State."    
    Id. at 190.
       Thus, each
    case is reviewed "on an individual basis to determine whether the
    motorist's rights have been violated by undue delay" or a "reason
    to doubt" the validity of the test results.   
    Ibid. Defendant argues the
    State did not explain the reasonableness
    for the delay in administering the Alcotest and when two Alcotest
    machines failed to function, he should have been offered a blood
    test as an alternative.     See N.J.S.A. 39:4-50.2(c) (providing
    police may make an independent test available to a defendant) see
    also State v. Hicks, 
    228 N.J. Super. 541
    , 549-50 (App. Div. 1988),
    certif. denied, 
    127 N.J. 324
    (1990).
    Defendant does not claim prejudice or violations of his rights
    resulted from the delay in administering the test.      Instead, he
    asserts the State has not provided a reason for the delay, making
    it unreasonable.
    The trial judge properly concluded the delay was reasonable
    because the test "was administered less than three hours after
    [d]efendant was stopped, which is less than the four and [one-
    half] hour period of time deemed reasonable in Samarel."         The
    trial judge relied on our decision in State v. Samarel, 
    231 N.J. 9
                             A-4518-15T2
    Super. 134, 142-43 (App. Div. 1989), where we held a four and one-
    half hour delay between arrest and the breath test reasonable,
    because the defendant failed to demonstrate a prejudice by virtue
    of the delay.   Similarly, the trial judge here noted "defendant
    has not demonstrated that he was prejudiced by the lapse of time
    or that his detention was unduly prolonged."
    The testimony of Officer Jadue and Trooper Berwise supports
    the trial judge's conclusion the delay was borne of good faith
    difficulties, namely, two malfunctioning Alcotest machines located
    in two different locations.   Indeed, not only was defendant driven
    to Mount Olive police headquarters and then transported to the
    State Police barracks in Netcong, occasioning the delay, the
    mandated twenty-minute observance preceding the valid Alcotest
    added to the delay.   These difficulties do not support a narrative
    of a motive to delay to produce a favorable Alcotest result.
    The evidence supports the trial judge's conclusions the delay
    was reasonable and the absence of a corresponding prejudice to
    defendant. We find no reason to disturb the trial judge's finding.
    III.
    Defendant argues the court abused its discretion by denying
    his motion to compel discovery regarding the Alcotest machines.
    We find little merit in this claim.
    10                          A-4518-15T2
    "[T]he liberal approach to discovery in criminal cases is
    applicable in municipal court cases."      State v. Stein, 
    225 N.J. 582
    , 594 (2016).   A defendant, "on written notice to the municipal
    prosecutor . . . shall be provided with copies of all relevant
    material. . . ."   R. 7:7-7(b).   "In all cases in which an Alcotest
    device is used, any Alcotest data shall, upon request, be provided
    for any Alcotest 7110 relevant to a particular defendant's case
    in a readable digital database format generally available to
    consumers in the open market."     R. 7:7-7(g).
    "Discovery in a municipal court case, like in a criminal
    case, 'is appropriate if it will lead to relevant' information."
    
    Stein, supra
    , 225 N.J. at 596 (quoting State v. Hernandez, 
    225 N.J. 451
    , 462 (2016)).   Evidence is relevant if it has "a tendency
    in reason to prove or disprove any fact of consequence to the
    determination of the action."     N.J.R.E. 401.
    Here, the trial judge noted:
    In this case during the first day of trial
    [the municipal judge] denied defendant's
    motion to compel discovery on a machine at the
    Netcong station that was not used to obtain a
    breath sample from the defendant due to the
    lack of testimony "as to how it might be
    relevant and probative."
    He concluded there was no basis for the discovery sought by
    defendant because the State had provided everything related to the
    breath test reading actually utilized at trial.
    11                         A-4518-15T2
    We see no reason to question the trial judge's findings.        Any
    evidence relating to the other machines the officers attempted to
    use would not help prove or disprove whether defendant drove under
    the influence of alcohol on the night of his arrest.       No evidence
    suggests any other tests were completed, except for the test
    utilized by the State at trial, for which the State provided all
    discovery.    Even   though   defendant   claims   the   discovery   was
    necessary because the reasons for the delay in the testing "have
    never been established," as we noted in the preceding section,
    there is ample evidence in the record explaining the reasons for
    the delay.   In light of defendant's failure to demonstrate how he
    was prejudiced by the delay, the discovery regarding the other
    Alcotest machines was tenuous and irrelevant because it had no
    impact on the .15 percent BAC reading and per se DWI violation.
    IV.
    Defendant argues the court inappropriately allowed a defense
    witness to testify before the prosecution rested, thus depriving
    him of a presumption of innocence and due process.           The State
    points out defendant did not object to this trial procedure at the
    time and is barred from raising it on appeal.
    The trial judge recounted his review of the trial transcript,
    noting Trooper Berwise was not in court at the beginning of the
    trial session, but had been contacted by the prosecutor and was
    12                             A-4518-15T2
    en route to court.    The trial judge noted defendant had ready
    witnesses and volunteered to take at least one out of order,
    namely, his expert witness.   The trial judge concluded the trial
    procedure was valid because the municipal court judge had authority
    to call witnesses out of order.     See N.J.R.E. 611(a).   The trial
    judge also relied upon Rule 1:7-2, noting defendant did not object.
    Counsel volunteering to present his witness out of order
    triggers the doctrine of invited error.    Rule 1:7-2 states:
    For the purpose of reserving questions for
    review or appeal relating to rulings or orders
    of the court or instructions to the jury, a
    party, at the time the ruling or order is made
    or sought, shall make known to the court
    specifically the action which the party
    desires the court to take or the party's
    objection to the action taken and the grounds
    therefor. . . . A party shall only be
    prejudiced by the absence of an objection if
    there was an opportunity to object to a
    ruling, order or charge.
    The invited error doctrine bars a litigant from taking a
    position on appeal contrary to a position advanced in the trial
    court.   State v. Pontery, 
    19 N.J. 457
    , 471 (1955).    "'Elementary
    justice in reviewing the action of a trial [judge] requires that
    [the] court should not be reversed for an error committed at the
    instance of [the] party alleging it.'"      State v. Scioscia, 
    200 N.J. Super. 28
    , 47 (App. Div. 1985) (alterations in original)
    (quoting Bahrey v. Poniatishin, 
    95 N.J.L. 128
    , 133 (E & A. 1920)).
    13                            A-4518-15T2
    It is clear neither the prosecutor nor the court suggested
    or compelled the defense to call its witnesses first.                    We can
    understand the reasonable decision of defense counsel to take an
    expert witness out of order given the monetary and time costs
    incurred associated with an idle expert witness.                      For these
    reasons, we reject defendant's argument he was deprived of his
    constitutional rights.
    V.
    Defendant asserts there was insufficient evidence to find him
    guilty beyond a reasonable doubt of DWI or failure to maintain his
    lane.   He claims, "the municipal court did not make meaningful
    credibility determinations, as such fact-finding could not have
    resulted   in   a     DWI   conviction"    and   again   cites   to   allegedly
    contradictory testimony by Officer Jadue and Trooper Berwise.
    Also, relying on State v. Woodruff, 
    403 N.J. Super. 620
    (Law Div.
    2008), defendant contends the State failed to prove failure to
    maintain lane, arguing there was reasonable doubt as to "how
    practicably the road could or should have been negotiated" because
    Officer Jadue and defendant drove a distance before pulling over
    and the trial judge made no findings about the road conditions.
    Given      our     limited    scope    of    review    of    credibility
    determinations and findings of fact by a trial court, we reject
    14                                 A-4518-15T2
    these arguments because the record before us demonstrates the
    findings were based on substantial credible evidence.
    Regarding    the   DWI    charge,    the   Law   Division   quoted   the
    municipal court's findings:
    Based on the officer's credible testimony as
    to his observations and the video tape, I am
    finding the defendant first guilty of failing
    to maintain lane, from going to the shoulder
    of the road, crossing over the solid line, and
    then coming to the right side, uh, dotted
    lines on Route 46 and going back and forth at
    least once - if not twice - and, in the court's
    judgment beyond - there's proof beyond a
    reasonable doubt the defendant did not
    properly maintain his lane on Route 46 on
    November 12, 2014.
    The Law Division then said:        "After reviewing the entire record,
    this court finds the testimony at trial by Officer Jadue, in
    combination with the S-2 evidence, the MVR, is sufficient to find
    that defendant beyond a reasonable doubt is guilty of failure to
    maintain lane."
    These findings were clearly sufficient to meet the statutory
    definition for the conviction under N.J.S.A. 39:4-88(b), requiring
    "[a] vehicle shall be driven as nearly as practicable entirely
    within a single lane."        Moreover, defendant's assertion the trial
    judge did not consider the road conditions is rebutted by the
    judge recounting his review of the MVR, which corroborates Officer
    Jadue's testimony stating he traveled "at least a mile and [one-
    15                              A-4518-15T2
    half] to two miles" behind defendant's vehicle before stopping
    him.    Defendant does not point us to evidence either overlooked
    or   misinterpreted   by   the   trial   judge   relating    to   the   road
    conditions.
    Defendant also argues the State has not proven DWI beyond a
    reasonable doubt because the trial judge could not determine
    credibility from the municipal court transcripts.           He also claims
    the municipal court "misunderstood" the testimony of defendant's
    expert as meaning defendant could not walk or stand rather than
    perform the field sobriety tests.
    As noted above, the trial judge found defendant guilty of DWI
    making findings of guilt for a per se violation as well as on
    observational evidence.     He stated:
    There is sufficient evidence in the record to
    convict the defendant of driving while
    intoxicated; both as a per se and observation
    violation. At the outset it should be noted
    that there is no dispute over whether the
    defendant was operating a motor vehicle at the
    time of his arrest.      Moreover, the State
    submitted foundational documents required
    under   Chun.     Therefore,   in   light   of
    defendant's .15 percent BAC reading from the
    Alcotest sample, there is sufficient evidence
    to find a per se violation of the statute.
    However, even if this court had suppressed the
    Alcotest reading, as the defendant asked, the
    testimony would have been sufficient to
    convict the defendant based on officer
    observation. Officer Jadue testified that the
    defendant had watery bloodshot eyes and
    16                               A-4518-15T2
    smelled of alcohol. Defendant was unable to
    perform the walk and turn test and the one-
    leg stand test in accordance with Officer
    Jadue's instructions. In addition defendant
    told Officer Jadue that he had consumed at
    least two beers.        Moreover, defendant's
    vehicle   failed   to    maintain  its   lane.
    Consequently,   the   testimony   sufficiently
    supports finding that the defendant's mental
    faculties and physical capabilities were
    substantially deteriorated while he was
    operating his vehicle.        Considering the
    totality of all the evidence; based on the
    credible   testimony   regarding   defendant's
    driving by Officer Jadue, the observations
    made by Officer Jadue; defendant's performance
    on the field sobriety tests, and defendant's
    admission to consuming alcohol, this court
    finds that defendant may also be found guilty
    under [the] observation standard.
    Contrary to defendant's argument, we see no error in the
    trial judge's credibility determinations or inconsistency between
    the testimony of Officer Jadue and Trooper Berwise.         Also, we do
    not   see   evidence   the   court   misunderstood   the   testimony    of
    defendant's expert witness.     The evidence relied upon by the trial
    court supports its conclusion.       Defendant violated N.J.S.A. 39:4-
    50.
    Affirmed.
    17                          A-4518-15T2