STATE OF NEW JERSEY VS. JOSEPH MESZAROS, III(27-15, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 21, 2017
• Docket: A-3334-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3334-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH MESZAROS, III,

Defendant-Appellant. ———————————————————————————————

Argued October 24, 2017 – Decided November 21, 2017

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 27-15.

James A. Abate argued the cause for appellant.

Lauren Martinez, Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; Ms. Martinez, of counsel and on the brief).

PER CURIAM

The Bound Brook Municipal Court convicted defendant Joseph

Meszaros, III, of driving while intoxicated (DWI), N.J.S.A. 39:4-

50, and driving while suspended, N.J.S.A. 39:3-40. The court sentenced defendant to twelve years total loss of driving

privileges,1 three years ignition interlock, forty-eight hours of

service at the Intoxicated Driver Resource Center, thirty days

community service, and ordered him to pay monetary fines and

penalties. Because defendant drove with a suspended license, the

court imposed enhanced penalties in the form of fines and court

costs, and sentenced defendant to forty-five days incarceration.

Following a de novo trial, the Law Division again found defendant

guilty and imposed the same sentence as the municipal court.

On appeal, defendant raises the following arguments for our

consideration:

POINT I THE MUNICIPAL COURT AND LAW DIVISION COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE RESULTING FROM A SUSPICIONLESS MOTOR VEHICLE STOP.

POINT II THE MUNICIPAL COURT AND LAW DIVISION ERRED BY REFUSING TO HOLD A RULE 104 HEARING AS TO THE ADMISSIBILITY OF THE ALCOTEST AND FIELD SOBRIETY TESTS.

POINT III THE MUNICIPAL COURT AND LAW DIVISION COMMITTED REVERSIBLE ERROR BECAUSE DEFENDANT'S SENTENCE EXCEEDED THE AMOUNT PERMITTED WITHOUT A JURY TRIAL.

1 The court suspended defendant's license for ten years for his DWI conviction, his third, see N.J.S.A. 39:4-50(a)(3), and a consecutive two years for driving while suspended, because his driving privileges were revoked for DWI at the time of the offense. See N.J.S.A. 39:3-40(c).

2 A-3334-15T2 POINTS IV THE EFFECT OF THE CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

After reviewing the record in light of defendant's arguments, we

affirm defendant's conviction and sentence.

I.

We derive the following facts from the record. While on

patrol on June 22, 2014, at approximately 8:10 p.m., Bound Brook

Police Officer Jessie Schwartz observed a pick-up truck towing a

trailer make a K-turn-type maneuver on a dead end street near

defendant's house.

Officer Schwartz testified he observed the truck's license

plate and ran an inquiry that revealed the truck's registered

owner had a suspended license. The registered owner's photograph

appeared on Officer Schwartz's computer screen, and he determined

the photograph matched defendant. The officer testified he was

ten to fifteen feet away from the vehicle with an unobstructed

view. Officer Schwartz also testified he was familiar with

defendant and his truck, and knew defendant's license was

suspended.

With this information, Officer Schwartz conducted a motor

vehicle stop. The officer informed defendant he stopped him due

3 A-3334-15T2 to his suspended license. At that point, the officer observed

that defendant had bloodshot eyes and droopy eyelids, and his

breath smelled of alcohol. Defendant admitted to drinking alcohol,

and agreed to use the portable breath test machine, stating he was

"going to be over the limit." Officer Schwartz administered

several field sobriety tests, and defendant failed the one-legged

balance test and refused to complete the walk-and-turn test.

Officer Schwartz then placed defendant under arrest for DWI

and transported him to police headquarters. During the drive,

defendant again admitted to drinking and driving, and acknowledged

his license was suspended. At headquarters, the officer

administered an Alcotest indicating that defendant had a .22

percent blood alcohol concentration.2

Before trial, defendant filed a motion to suppress. Officer

Schwartz provided the testimony already summarized, during the

suppression hearing. Defendant also testified on his own behalf,

and provided a different account from Officer Schwartz. First,

defendant testified he did not perform the maneuver Officer

Schwartz testified he did. He explained such a maneuver was

impossible to make due to the combined length of the truck and the

trailer. Further, defendant claimed Officer Schwartz could not

2 The legal limit is .08 percent. See N.J.S.A. 39:4-50(a).

4 A-3334-15T2 have seen his license plate because his trailer obstructed the

view, and the trailer's license plate was registered to another

person.

Following the witnesses' testimony, the municipal court judge

inquired whether he could travel to the intersection where the

stop and the arrest occurred; neither the State nor defendant

objected. The judge went to the location of the stop and "viewed

it from several different angles." While the judge's on-site

inspection corroborated defendant's testimony regarding the layout

of the street and intersection in question, and what maneuvers he

could have made with his truck and trailer, the municipal court

judge found

the most telling piece of evidence . . . was a statement that the officer made after he made the stop . . . . [The officer stated he] knew the vehicle [was] suspended, and [he saw defendant] in it . . . [s]o to me, the evidence as to whether the officer saw the license plate or if the license plate was not visible is really not germane as far as this case is concerned.

The judge concluded that these statements by the officer, made

immediately after the stop, confirmed Officer Schwartz's prior

knowledge of defendant's license suspension, and provided the

required articulable suspicion to conduct the motor vehicle stop.

5 A-3334-15T2 Ultimately, the judge found defendant guilty of DWI, N.J.S.A.

39:4-50, under the per se method as well as the circumstantial

method, and driving while suspended, N.J.S.A. 39:3-40.

On de novo appeal, the Law Division judge also found defendant

guilty of DWI under both the per se method as well as the

circumstantial method. The judge first found defendant's blood

alcohol content "was .22, well over the .08 threshold." He further

found ample circumstantial evidence to conclude, beyond a

reasonable doubt, that defendant drove while intoxicated,

including the odor of alcohol on his breath, his failure to perform

the field sobriety tests correctly, his red and watery eyes, and

his slightly slurred speech. The Law Division judge imposed the

same penalties the Municipal Court imposed.

II.

Municipal DWI convictions are first appealed to the Law

Division. R. 7:13-1; R. 3:23-1; State v. Golin, 363 N.J. Super.

474, 481 (App. Div. 2003). The standard of review of such appeal

is de novo, Rule 3:23-8, and the Law Division decides the case

anew, deferring only to the credibility findings of the municipal

court. State v. Locurto, 157 N.J. 463, 474 (1999). On appeal to

this court, we review whether there is sufficient credible evidence

in the record to uphold the Law Division's findings, not those of

the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964).

6 A-3334-15T2 On issues of law, our review is de novo. State v. Brown, 118 N.J.

595, 604 (1990). However, like the Law Division, we defer to the

credibility determinations of the municipal court. State v.

Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). We owe

enhanced deference where both municipal and Law Division judges

reach the same credibility determinations. Locurto, supra, 157

N.J. at 474.

"[A] violation of [the DWI statute] may be proven 'through

either of two alternative evidential methods: proof of a

defendant's physical condition or proof of a defendant's blood

alcohol level.'" State v. Howard, 383 N.J. Super. 538, 548 (App.

Div.) (quoting State v. Kashi, 360 N.J. Super. 538, 545 (App. Div.

2003), aff'd o.b., 180 N.J. 45 (2004)), certif. denied, 187 N.J.

80 (2006).

A.

We first consider the merits of defendant's argument that the

municipal court erred in finding Officer Schwartz conducted a

lawful motor vehicle stop even though the court determined

defendant's narrative of events was more credible. The United

States and New Jersey Constitutions permit a brief investigative

stop of a vehicle based on reasonable suspicion. Navarette v.

California, 572 U.S. ___, ___, 134 S. Ct. 1683, 1689-90, 188 L.

Ed. 2d 680, 686 (2014); State v. Amelio, 197 N.J. 207, 211 (2008),

7 A-3334-15T2 cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297

(2009). An investigatory stop "is valid if it is based on specific

and articulable facts which, taken together with rational

inferences from those facts, give rise to a reasonable suspicion

of criminal activity." State v. Mann, 203 N.J. 328, 338 (2010)

(citation omitted).

Reasonable suspicion "requires some minimal level of

objective justification for making the stop." Amelio, supra, 197

N.J. at 211-12 (internal quotation marks omitted). "Although a

mere 'hunch' does not create reasonable suspicion, the level of

suspicion required is 'considerably less than proof of wrongdoing

by a preponderance of the evidence,' and 'obviously less' than is

necessary for probable cause." State v. Gamble, 218 N.J. 412, 428

(2014) (citation omitted). Furthermore:

[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

[Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990).]

"When determining if the [police] officer's actions were

reasonable, the court must consider the reasonable inferences that

8 A-3334-15T2 the police officer is entitled to draw in light of his [or her]

experience." Amelio, supra, 197 N.J. at 212 (quoting State v.

Arthur, 149 N.J. 1, 8 (1997) (internal quotation marks omitted)).

Here, defendant provided evidence – the MVR video — that

corroborated at least a portion of his narrative. However, the

motion judge noted that on the MVR video, Officer Schwartz stated

he had previously pulled defendant's truck over, he was familiar

with defendant, and he was aware defendant's license was suspended.

In fact, during the suppression hearing, defendant himself

testified his vehicle had been previously pulled over, and on one

of those occasions he was a passenger in the vehicle.

N.J.R.E. 803(c) permits the admission of certain extra-

judicial statements of a declarant as substantive evidence, and

the present sense impression exception makes admissible statements

of observation as well as statements describing or explaining an

event. See N.J.R.E. 803(c)(1). Here, Officer Schwartz, upon

stopping defendant, stated, "I pulled you over because I know the

vehicle. The owner of this vehicle has been suspended." The

officer made this statement immediately after he observed

defendant driving with a suspended license. Further, because he

made the statement immediately following the stop, he did not have

the opportunity to deliberate or fabricate the circumstances of

9 A-3334-15T2 the stop. See State v. Long, 173 N.J. 138, 159 (2002); see also

N.J.R.E. 803(c)(1).

The record supports the motion judge's findings that Officer

Schwartz had a reasonable and articulable suspicion to pull over

defendant based upon his knowledge of defendant's suspended

license. See State v. Pitcher, 379 N.J. Super. 308, 315 (App.

Div. 2005) ("[A] motor vehicle stop based upon a reasonable

suspicion that the driver's license is suspended is

permissible . . . ."), certif. denied, 186 N.J. 242 (2006).

Accordingly, we affirm the Law Division's denial of defendant's

motion to suppress.

III.

Defendant next contends the municipal court denied him due

process and a fair trial because the municipal judge prevented his

attorney from challenging the Alcotest's admissibility by

improperly consolidating the N.J.R.E. 104(a) hearing and the

trial. While our review of the record does not support this

assertion, we need not determine the admissibility of the Alcotest

results because the municipal court and Law Division also found

defendant guilty of DWI based upon the observational evidence, and

we conclude the record contains "sufficient credible evidence" to

uphold the findings of the Law Division. State v. Johnson, 42

N.J. 146, 162 (1964).

10 A-3334-15T2 Our Supreme Court has noted in State v. Bealor, 187 N.J. 574,

577 (2006) that "evidentially competent lay observations of the

fact of intoxication are always admissible." Recognizing that

"sobriety and intoxication are matters of common observation and

knowledge, New Jersey has permitted the use of lay opinion

testimony to establish alcohol intoxication." Id. at 585 (citing

Searles v. Pub. Serv. Ry. Co., 100 N.J.L. 222, 223 (Sup. Ct.

1924)). "An ordinary citizen is qualified to advance an opinion

in a court proceeding that a person was intoxicated because of

consumption of alcohol. The symptoms of that condition have become

such common knowledge that the testimony is admissible." State

v. Smith, 58 N.J. 202, 213 (1971).

Moreover, police officers, who receive specific training to

recognize signs of drunk driving and intoxication, are equally

competent to proffer such an opinion. Indeed, 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, 455-56 (App. Div. 2003)

(sustaining DWI conviction based on observations of the

defendant's bloodshot eyes, hostility, and strong odor of

alcohol); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div.

2001) (sustaining DWI conviction based on officer's observations

of watery eyes, slurred and slow speech, staggering, inability to

11 A-3334-15T2 perform field sobriety tests, and the defendant's admission to

drinking alcohol earlier in the day).

Following our review, we conclude the State produced

sufficient credible evidence to convict defendant of DWI beyond a

reasonable doubt based upon the observational evidence of record.

As noted in the Law Division's opinion, "defendant had the odor

of an alcoholic beverage emitting from his breath. He failed to

perform the field sobriety tests correctly. He admitted he had

consumed alcoholic beverages. His eyes were red and watery. His

speech was slightly slurred." Under the totality of the

circumstances, the Law Division's fact-findings provide sufficient

grounds for an objectively reasonable conclusion defendant

operated a motor vehicle in violation of N.J.S.A. 39:4-50.

IV.

Finally, defendant contends he was entitled to a jury trial

because he faced more than 180 days of incarceration. See State

v. Linnehan, 197 N.J. Super. 41, 43 (App. Div. 1984), certif.

denied, 99 N.J. 236 (1985). Specifically, he argues that because

this was his third DWI offense, he faced a period of imprisonment

no less than 180 days, and a period of imprisonment between ten

and ninety days for the DWI enhanced driving while suspended

offense, pursuant to N.J.S.A. 39:3-40(f)(2).

12 A-3334-15T2 Defendant's argument lacks merit. Although this constituted

his third DWI conviction, the Law Division previously issued

defendant an order for post-conviction relief that prevented the

consideration of defendant's 2011 DWI conviction for enhanced

sentencing. See State v. Laurick, 120 N.J. 1, 16 (holding that

"enhanced administrative penalties and fines may constitutionally

be imposed but that in the case of repeat DWI convictions based

on uncounseled prior convictions, the actual period of

incarceration imposed may not exceed that for any counseled DWI

convictions."), cert. denied, 486 U.S. 967, 111 S. Ct. 429, 112

L. Ed. 2d 413 (1990). Accordingly, because defendant had a Laurick

order, he did not face sentencing as a third DWI offender, and

thus was not subject to imprisonment exceeding 180 days.

To the extent we have not addressed any arguments defendant

raised, we have deemed such arguments lacking in sufficient merit

to warrant comment in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

13 A-3334-15T2