NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4605-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID GUAMAN,
Defendant-Appellant. ________________________________
Argued September 13, 2018 – Decided October 9, 2018
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 6116.
Dominique J. Carroll argued the cause for appellant (Kassem & Associates, PC, attorneys; Nabil N. Kassem and Dominique J. Carroll, on the brief).
Marc A. Festa, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent; Marc A. Festa, of counsel and on the brief).
PER CURIAM Following a trial de novo, a Law Division judge found defendant, David
Guaman, guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, failure to
possess a motor vehicle registration certificate and failure to possess an
insurance identification card, N.J.S.A. 39:3-29, and possessing an open
alcoholic beverage container, N.J.S.A. 39:4-51(b). He appeals and argues:
POINT I AS A MATTER OF LAW THE LOWER COURT ERRONEOUSLY DENIED [DEFENDANT'S] MOTION TO SUPPRESS HIS ALLEGED ORAL AND WRITTEN STATEMENTS DESPITE THE SAME BEING THE PRODUCT OF UNLAWFUL POLICE INTERROGATION (Raised Below).
POINT II AS A MATTER OF LAW THE LOWER COURT ERRONEOUSLY DENIED [DEFENDANT'S] MOTION TO SUPPRESS AS THE STATE LACKED PROBABLE CAUSE TO PLACE [DEFENDANT] UNDER ARREST (Raised Below).
POINT III AS A MATTER OF LAW THE LOWER COURT ERRONEOUSLY DENIED [DEFENDANT'S] RECUSAL MOTION (Raised Below).
POINT IV AS A MATTER OF LAW [DEFENDANT'S] CONVICTIONS MUST BE OVERTURNED BASED UPON PROSECUTORIAL MISCONDUCT (Raised Below).
A-4605-16T3 2 POINT V AS A MATTER OF LAW THE LOWER COURT ERRONEOUSLY DENIED [DEFENDANT'S] MOTION TO SUPPRESS THE UNRELIABLE RESULTS OF THE ALCOTEST (Raised Below).
Finding no merit in these arguments, we affirm.
This action's lengthy procedural began on a Sunday morning in June 2015
when Wayne Township police issued traffic summonses to defendant for DWI
and the other violations we have previously enumerated. Following defendant's
arraignment and several pre-trial conferences, a December 2015 trial date was
adjourned due to defense counsel's illness. Defendant filed a suppression
motion, which the Judge of Municipal Court (JMC) heard on January 8 and July
8, 2016. The January 8 hearing was adjourned so the State could attempt to
locate the recording of a cellular phone call a private citizen made to the New
Jersey State Police on the morning of defendant's arrest.
On the date scheduled for resumption of the suppression hearing, defense
counsel, after waiting in court approximately three hours, left to respond to a
medical emergency involving a sibling. The JMC subsequently required that he
provide proof of the medical emergency. This was not the first time the JMC
had required verification of other events from defense counsel. Defense counsel
had previously requested an adjournment on the basis he was scheduled to begin
A-4605-16T3 3 a trial in Superior Court. The JMC contacted counsel's office and ordered office
personnel to provide him with the name and phone number of the Superior Court
judge.
Questioning the JMC's impartiality in light of his demand for verification
in each instance, defendant filed a motion seeking the JMC's recusal. The JMC
denied the motion.
The hearing on defendant's suppression motion continued on July 8, 2016,
and concluded on September 30, 2016. The JMC denied the motion. Trial
commenced the same day and concluded on January 25, 2017. The JMC
convicted defendant of all charges and imposed sanctions.
Defendant appealed to the Law Division. The Law Division judge denied
defendant's suppression motion and found defendant guilty of the four motor
vehicle offenses. For the DWI offense, the judge revoked defendant's driving
privileges for seven months and ordered defendant to install and maintain an
ignition interlock device for six months following reinstatement of his driving
privileges. The judge also ordered defendant to attend an Intoxicated Driver
Resource Center for twelve hours. The judge imposed appropriate fines,
penalties, assessments, and costs. The judge merged the failure to possess a
registration violation into the failure to possess an insurance card and f or the
A-4605-16T3 4 latter imposed a $156 fine and $32 in costs. For possessing on open alcoholic
beverage container, the judge imposed a fine of $206 and court costs of $32.
The State presented two witnesses at the suppression motion: a truck
driver and Wayne Township Patrolman Gerard Venezia. On the morning police
arrested defendant, the truck driver was driving westbound on Route 80, near
Woodland Park, at approximately five o'clock, when he first saw defendant, who
was also driving westbound on Route 80. The truck driver observed defendant
driving well below the speed limit, braking heavily, and continually swerving
back and forth across the three westbound traffic lanes. Defendant had one near
miss with another vehicle. The truck driver reduced his speed, activated his
hazard lights, and followed defendant onto Route 23 North. According to the
truck driver, defendant continued to operate his car in the same manner,
swerving across the left and right lanes, nearly missing the divider a few times.
Defendant finally turned into the parking lot of a liquor store, where he parked,
made a few movements, and then slumped over to the passenger side of the car.
When that happened, the lights on defendant's car were off, the engine was not
running, and no music was coming from the car.
The truck driver estimated he followed defendant for approximately
twenty to twenty-five minutes. During that time, the truck driver used his
A-4605-16T3 5 cellular phone to telephone the New Jersey State Police. The recording of the
call was played at trial. In the recording, the truck driver reported that as he
drove westbound on Route 80, "coming up to Smallwood Road," he observed a
"late-model blue car" and its driver was "out of control." In response to a
dispatcher's question, the truck driver reported defendant driving an Acura TSX
with a Maryland license plate number.
Shortly after the truck driver followed defendant into the liquor store
parking lot, Wayne Township Patrolman Gerard Venezia arrived in response to
a 5:37 a.m. dispatch of a motor vehicle operating in a careless manner and failing
to maintain his lane of travel. The officer spoke with the truck driver, who
informed the officer of the observations he had made of defendant on Routes 80
and 23. Officer Venezia walked over to defendant's car and observed defendant
in the driver's seat, reclined backwards, snoring. The driver's side rear window
was open. Defendant did not appear to be in medical distress.
The officer smelled a strong odor of alcohol coming from defendant's car.
He observed open alcohol beverage containers in the backseat. After the truck
driver confirmed there were no obstructions or debris in the roadway that would
have made defendant swerve, the officer woke defendant and requested his
A-4605-16T3 6 credentials. Defendant could not locate a driver's license, registration, or
insurance identification card. The officer asked defendant to step out of the car.
Defendant explained that he was driving from Brooklyn to Pennsylvania
to meet a customer. He said he owned his own contracting business. Officer
Venezia detected a distinct odor of alcohol emanating from defendant's breath.
Defendant's eyes were bloodshot, his eyelids were droopy, and he slurred his
speech. In response to the officer's question, defendant said he had consumed
one-half of a beer at a friend's home in Brooklyn.
Based upon what the truck driver told him and his observations of
defendant, Officer Venezia attempted to administer two field sobriety tests: the
"walk and turn" test and the "one-leg stand" test. The parking lot was a good
place for the former, because defendant could perform in on the lines dividing
the parking spaces. Also, the parking lot was flat and free of debris. The
weather was clear and warm.
Officer Venezia provided detailed instructions on how to perform each
test. Defendant confirmed he had no injuries and was able to perform the tests.
However, he did not do so. He did not follow instructions on the walk and turn
test. In fact, he started doing the test while the officer was giving instructions.
When defendant attempted the one-leg stand test, he was unsteady and
A-4605-16T3 7 lost his balance. He could not lift his foot more than approximately two inches.
He could not maintain the position for the required count.
Based upon the truck driver's statement and the totality of Officer
Venezia's observations, the officer placed defendant under arrest.
The JMC denied defendant's suppression motion and the parties proceeded
to trial. The truck driver and Officer Venezia testified to substantially the same
facts they had recounted during the hearing on the suppression motion.
Officer Venezia added that when he asked defendant for his driving
credentials, defendant's hand motions and movements were fumbling and slow.
Outside of the car, defendant was unable to walk, that is, he was swaying and
grasping for support. His legs sagged, he staggered, and he moved in circles.
He was unable to stand without leaning on something for balance.
After placing defendant under arrest, Officer Venezia transported him to
a State Police barracks so that defendant could give a breath sample for an
Alcotest. Upon their arrival, Officer Venezia informed defendant of his
Miranda1 rights and completed a Miranda waiver. The officer then completed a
Drinking and Driving report and an incident report. The officer placed
defendant in a holding area and "began a [twenty] minute observation period,"
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-4605-16T3 8 using a cell phone clock to measure twenty minutes. During the twenty-minute
time interval, Officer Venezia continually watched to assure defendant did not
burp, vomit, or place any foreign objects in his mouth. Upon completion of the
twenty-minute observation period, Officer Venezia escorted defendant to the
Alcotest room, where Officer Darren Williams administered the Alcotest.
Officer Williams, a certified Alcotest operator, detailed his background
and then explained the procedures he utilized to prepare the Alcotest. He also
testified about his instructions to defendant after reading defendant the New
Jersey Attorney General standard statement form "word for word." After five
attempts to provide proper samples, defendant provided two that were
satisfactory. Each one produced an Alcotest reading of .19.
Defendant offered one witness at trial, Gilbert Snowden, a former New
Jersey State Policeman who was an expert in breath testing devices and standard
field sobriety tests. He had previously testified in thousands of cases throughout
most municipalities in New Jersey, as well as in municipalities in New York and
Pennsylvania.
Snowden had not only reviewed all the documentary evidence in the case,
he was present in court when Officers Venezia and Williams testified. He had
two criticisms of Officer Venezia's administration of the field sobriety tests.
A-4605-16T3 9 First, Officer Venezia did not testify that during the walk and turn test he told
defendant to watch his feet at all times. Similarly, on the one-leg stand test, the
officer did not tell defendant to keep watching the raised foot. Snowden
explained the reasons why those instructions could – but do not necessarily –
compromise the reliability of the results.
Snowden also disagreed with the way Officer Venezia had scored the two
tests, but conceded that the "decision point" – at which the point system
indicated impairment – would have been the same. Snowden also acknowledged
that based on the totality of circumstances, Officer Venezia had "more than
enough probable cause" to arrest defendant.
Snowden had no criticism of the way Officer Williams prepared and
administered the Alcotest. He also had no issue with the foundational
documents. Nonetheless, he testified Officer Venezia's twenty-minute
observation period of defendant should have been conducted in the Alcot est
room. Snowden explained that when Officer Venezia escorted defendant to the
Alcotest room, defendant could have burped quietly or placed something in his
mouth.
Snowden also opined that at the inception of the twenty-minute
observation period, Officer Venezia should have asked defendant if he had
A-4605-16T3 10 anything in his mouth. If defendant had something in his mouth, the twenty-
minute observation period would have been ineffective for assuring the alcohol
test would not be affected by material in defendant's mouth.
The JMC found the truck driver and the police officers credible.
Acknowledging Snowden's expertise, the JMC noted that even Snowden said
there was more than sufficient probable cause to arrest defendant. The JMC
found that Officer Venezia's testimony satisfied the twenty-minute observation
period. He convicted defendant on all four summonses.
On the trial de novo, the Law Division judge also convicted defendant.
Acknowledging inconsistencies in the truck driver's testimony, the judge was
nonetheless persuaded by the consistency of the truck driver's recorded
telephone call and the "core" of his testimony. Giving some deference to the
JMC's credibility findings, but making his own independent findings, the Law
Division judge found the truck driver and the officers credible. The judge denied
defendant's suppression motion, disposed of his claim that the JMC should have
recused himself, and convicted defendant. This appeal followed.
When a defendant appeals a conviction of a motor vehicle violation
following a trial de novo, the scope of our review is both narrow and deferential.
State v. Stas, 212 N.J. 37, 48-49 (2012). We will "uphold the factual findings
A-4605-16T3 11 underlying the trial court's decision, provided that those findings are 'supported
by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417,
425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). We "defer to
trial courts' credibility findings that are often influenced by matters such as
observations of the character and demeanor of witnesses and common human
experience that are not transmitted by the record." State v. Locurto, 157 N.J.
463, 474 (1999). "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." Ibid. In contrast, review of the trial court's conclusions of law is de
novo. State v. Watts, 223 N.J. 503, 516 (2015).
Applying these standards, we find no error in the trial court's denial of
defendant's suppression motion. Defendant argues his suppression motion
should have been granted because Officer Venezia did not give him Miranda
warnings before questioning him about driving the car and drinking. He
contends the Officer should have given Miranda warnings because he was "in
custody" from his first waking encounter with Officer Venezia because he was
not free to leave and the officer suspected he was under the influence of alcohol.
A-4605-16T3 12 Miranda warnings are required only when a person is subject to "custodial
interrogation." Miranda, 384 U.S. at 444. "'General on-the-scene questioning
as to facts surrounding a crime or other general questioning of citizens in the
fact-finding process' is not subject to Miranda warnings." State v. Ebert, 377
N.J. Super. 1, 9 (App. Div. 2005) (quoting Miranda, 384 U.S. at 477)); accord,
State v. Weber, 220 N.J. Super. 420, 424 (App. Div. 1987). "We have previously
held that a DWI suspect is not entitled to Miranda warnings prior to
administration of field sobriety tests." Ebert, 377 N.J. Super. at 9 (citing State
v. Green, 209 N.J. Super. 347, 350 (App. Div.1986)).
Defendant next argues that Officer Venezia did not have probable cause
to arrest him. His argument is without sufficient merit to warrant further
discussion. R. 2:11-3(e)(2).
In his third point, defendant argues the JMC erred by denying defendant's
recusal motion. Defendant argues the JMC should have recused himself for
three reasons. First, the judge expressed an opinion on the truck driver's veracity
before hearing all the evidence. Second, when defense counsel requested an
adjournment because he was on trial in Superior Court, the JMC requested the
name and phone number of the presiding Superior Court judge. Finally, when
defense counsel left municipal court after waiting hours on a date scheduled for
A-4605-16T3 13 resumption of the trial, the JMC requested documentation of the medical
emergency concerning defense counsel's sibling.
In addressing the recusal motion, the JMC denied he had made any
veracity determination in the context of sustaining defendant's repetitive
questioning of a witness. The judge pointed out he could not do so, because
such a determination could be made only at the conclusion of all the testimony,
including the cross-examination of the specific witness involved.
Concerning defense counsel's anticipated trial of a case in the Law
Division, the JMC explained that municipal courts are under a directive to
accelerate DWI cases. When a potential conflict arises, a municipal court judge
must attempt to "work through scheduling issues" to determine whether to
adjourn a DWI matter. The judge explained this "is within the normal day-to-
day operations of the Municipal Court." Additionally, the JMC pointed out the
practice of cooperation "was helpful," as exemplified in this case, because it
turned out the Law Division case "was not scheduled to go to trial and that it
would not interfere with the proceedings in [defendant's DWI] case."
Finally, concerning the day defense counsel left municipal court before
trial resumed, the JMC noted defense counsel did not address the court directly
as to an emergency, "as is standard in a DWI matter." For that reason, the court
A-4605-16T3 14 requested something in writing to document the reason for the adjournment. The
court explained that "[i]t was not a requirement of a doctor's note, although the
doctor's note was accepted by the [c]ourt as a sufficient reason for the case to be
carried."
We agree defendant did not establish a sufficient reason for the JMC to
recuse himself. A party may, "on motion made to the judge before trial or
argument and stating the reasons therefore, . . . seek that judge's
disqualification." R. 1:12-2. Causes for disqualification are enumerated in R.
1:12-1 and include "any . . . reason which might preclude a fair and unbiased
hearing and judgment, or which might reasonably lead counsel or the parties to
believe so." R. 1:12-1(g).
Yet, "[i]t is improper for a judge to withdraw from a case upon a mere
suggestion that he is disqualified 'unless the alleged cause of recusal is known
by him to exist or is shown to be true in fact.'" Panitch v. Panitch, 339 N.J.
Super. 63, 66-67 (2001) (quoting Hundred East Credit Corp. v. Schuster, 212
N.J. Super. 350, 358 (App. Div. 1986)). The decision to grant or deny a recusal
motion "is, at least in the first instance, entrusted to the 'sound discretion' of the
trial judge whose recusal is sought." Id. at 66 (citing Magill v. Casel, 238 N.J.
Super. 57, 63 (App. Div. 1990)). Here, we find no abuse of discretion.
A-4605-16T3 15 The JMC sustained an objection to defendant repetitively pursuing
questions about the truck driver's ability to recall and estimate distances. In
sustaining the objection, the judge commented defendant had already
established the witness's inability to recall distances accurately. The JMC
distinguished this inability from the truck driver's veracity. No objectively
reasonable person could have construed the JMC's comments as a premature
determination of the credibility of the witness's overall testimony. As the judge
explained during the recusal motion, the witness had not completed testifying,
so the judge made no such credibility determination. It was not objectively
reasonable for the defendant to think otherwise. See DeNike v. Cupo, 196 N.J.
502, 517 (2008).
Nor were the JMC's requests for the name of the Superior Court judge
before whom defense counsel was scheduled to appear and for documentation
as to the medical emergency improper. Both requests implicated the JMC's
obligation to administer efficiently the court's cases, particularly DWI cases, and
to document reasons for adjournments. A litigant's wholly subjective belief
about a judge's impartiality, based on nothing more than surmise and conjecture,
is an inadequate ground for recusal.
A-4605-16T3 16 Defendant's fourth and fifth arguments are without sufficient merit to
warrant extended discussion. R. 2:11-3(e)(2). Defendant took umbrage with
the prosecutor providing a witness, whose testimony had commenced, with a
transcript or recording of the witness's telephone call to the New Jersey State
Police. But defense counsel adeptly cross-examined the witness about the
discrepancies between the witness's testimony and his statements in the
recording. Moreover, the recording was admitted into evidence. Any error in
providing the witness with a copy of the recording after his testimony had begun
was at most harmless error. R. 2:10-2.
Defendant's final argument – that the Alcotest results should have been
suppressed because Officer Venezia did not properly and adequately observe
defendant for twenty minutes before its administration – boils down to a
credibility determination. The trial court acted well within its discretion in
determining from the direct and circumstantial evidence the State had fully
complied with the twenty-minute observation requirement.
Affirmed.
A-4605-16T3 17