Opinion
DOCKET NO. A-4012-13T1
08-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DOUGLAS G. PARIS, Defendant-Appellant.
John Menzel argued the cause for appellant. Robert J. Wisse, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll and Sumners. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 47-14. John Menzel argued the cause for appellant. Robert J. Wisse, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Keith E. Hoffman, Senior Assistant Prosecutor, on the brief). PER CURIAM
On February 21, 2013, Ringwood Borough Police charged defendant Douglas G. Paris with driving while intoxicated (DWI), N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97. On March 12, defense counsel entered his appearance and requested a jury trial. On May 29, the municipal court judge denied the motion.
At trial on September 4, defendant's oral motion to suppress all evidence regarding his arrest was denied. Trial continued and concluded on November 6, with the municipal court reserving decision. On December 11, the municipal judge issued an oral decision finding defendant guilty of DWI and careless driving. Since defendant had three prior DWI convictions, he was sentenced to a term of 180 days in the Passaic County jail, a ten-year driver's license suspension, and other fines and penalties. Defendant's request to stay execution of the jail sentence or grant bail pending appeal was denied.
Defendant timely appealed his conviction to the Law Division. After serving thirteen days in jail, defendant was granted bail pending appeal. At a trial de novo on April 23, 2014, the Law Division judge denied defendant's renewed request for a jury trial and convicted defendant of DWI and careless driving. After merger, the judge imposed the same sentence as the municipal court. Further, upon denying defendant's request to continue bail pending appeal, bail was discharged. This appeal followed, and soon thereafter our court denied defendant's motion for bail pending appeal.
Before us, defendant raises the following arguments:
POINT I
OBSERVATIONAL EVIDENCE FAILS TO ESTABLISH BEYOND REASONABLE DOUBT THAT DEFENDANT WAS UNDER THE INFLUENCE OF ALCOHOL[.]
A. The Verdict Below Is Not Supported by Facts, Which, Rather Than Proving Guilt, Support Innocence and Explain Defendant's Physical Impairment Due to Factors Unrelated to Alcohol[.]
B. Applying the Law to the Present Facts, This Court Should Find Defendant Not Guilty[.]
After reviewing the record in light of the contentions advanced on appeal and applicable law, we affirm.
POINT II
DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE COURTS BELOW VIOLATED HIS RIGHT TO CONFRONTATION BY FAILING TO PERMIT CROSS-EXAMINATION AS TO HIS SFST PERFORMANCE AS COMPARED TO OTHERS[.]
POINT III
RELIANCE ON DEFENDANT'S SILENCE AS AN ADMISSION VIOLATED HIS PRIVILEGE TO REMAIN SILENT AND WARRANTS A NEW TRIAL[.]
POINT IV
DEFENDANT WAS ENTITLED TO A JURY TRIAL IN LIGHT OF THE LEGISLATURE'S SHIFT, WITH THE 2004 AMENDMENTS TO [N.J.S.A.] 39:4-50, FROM REHABILITATION TO PUNISHMENT OF THIRD DWI OFFENDERS, COUPLED WITH THE POSSIBILITY OF JAIL IN EXCESS OF 180 DAYS AND IMPOSITION OF OTHER ONEROUS PENALTIES[.]
Standard Field Sobriety Tests.
I.
We begin with a review of the applicable legal principles that guide our analysis. Our scope of review is limited to whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). The two-court rule provides that we "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. Locurto, 157 N.J. 463, 474 (1999) (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
Appellate courts give substantial deference to a trial judge's findings of fact. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). These findings should only be disturbed when there is no doubt that they are inconsistent with the relevant, credible evidence presented below, such that a manifest denial of justice would result from their preservation. Id. at 412 (citing Rova Farms, supra, 65 N.J. at 484). We owe no deference to the trial judge's legal conclusions. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).
We address defendant's arguments in the order presented. In Point I, defendant argues the State failed to prove beyond a reasonable doubt that he was guilty of DWI. He contends that the conviction was "unfair" because the field sobriety tests should have never been administered due to his knee and foot surgeries. We disagree.
Intoxication may be proven by evidence of a defendant's physical condition. State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45, 49 (2004). "The statute does not require as a prerequisite to conviction that the accused be absolutely 'drunk' in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988) (quoting State v. Emery, 27 N.J. 348, 355 (1958)), certif. denied, 114 N.J. 473 (1989). Observation may be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI." State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.), aff'd, 293 N.J. Super. 535 (App. Div. 1996). A combination of numerous factors is more than enough to support the conclusion that defendant was driving under the influence of alcohol beyond a reasonable doubt. See State v. Morris, 262 N.J. Super. 413, 416, 421 (App. Div. 1993) (upholding a DWI conviction and finding that slurred speech, disheveled appearance, bloodshot eyes, alcoholic odor on the breath and abrasive demeanor were evidence of the defendant's intoxication).
Examining the record before us, the State has sustained its burden of proving guilt. According to Ringwood Borough Police Officer Joseph Longo, his investigation of a two-motor vehicle accident led to the conclusion that it was caused by defendant's vehicle rear-ending the vehicle in front of him. Longo observed that defendant's breath smelled of alcohol, his speech was slurred, his eyes were bloodshot, and his clothes were "mussed." Defendant admitted that he had two beers. Moreover, defendant was unable to perform the finger-to-nose test and slurred his speech when asked to recite the alphabet.
Longo attempted to administer a breathalyzer test, but the analyzer was "not cooperating."
Thereafter, defendant failed to properly perform two video-recorded field sobriety tests. Prior to performing the one-leg-stand test, defendant advised, in response to Longo's inquiry, that he had a torn knee cartilage that had been "fixed." After watching the video depicting defendant failing to properly perform the test twice, the Law Division judge noted that defendant's speech was slightly slurred and he failed to properly perform the test because he could not comprehend Longo's instructions. Defendant also failed to properly perform the walk-and-turn test and attributed his failure to his knee surgery and an incline on the road. However, the judge found that Longo's testimony was credible, and defendant's excuses were unreliable because it was only when defendant noticed he could not perform the tests that he complained about his knee injury. Under the totality of the circumstances, there was sufficient proof before the Law Division to sustain a DWI conviction.
We conclude there is no merit to defendant's reliance on the testimony of Dr. Lance Gooberman, his medical expert. Dr. Gooberman opined that defendant "did not have alcohol intoxication on the night of arrest, using DSM criteria" and that the disability in defendant's three joints (knee, ankle, and toes) in his lower extremities impaired his ability to perform the one-leg-stand and walk-and-turn tests.
Published by the American Psychiatric Association, the Diagnostic and Statistical Manual of Mental Disorders is the standard classification of mental disorders used by mental health professionals in the United States. --------
The DSM is only an authoritative treatise when relied upon by medical professionals. State v. Rosales, 202 N.J. 549, 559 (2010) (citing State v. King, 387 N.J. Super. 522, 532-33 (App. Div. 2006)). Thus, it is not binding on this court. Rather, the DSM is used to determine whether or not an expert's testimony is based upon scientifically reliable authority, beyond the ken of an average juror; it does not form a legal conclusion. See ibid.; King, supra, 387 N.J. Super. at 537-46 (holding that expert testimony based on the DSM criteria concerning defendant's mental illness is appropriate to explain why an individual with similar mental illnesses would be more vulnerable to giving a false confession, though not to prove that defendant's confession was indeed false or a product of his mental illness). Furthermore, the DSM itself states that "[a]dditional information is usually required beyond that contained in the DSM-5 diagnostic criteria in order to make legal judgments on such issues as criminal responsibility[.]" American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 20 (5th ed. 2013).
We also discern no reason to disturb the Law Division judge's rejection of Dr. Gooberman's testimony that defendant's lower extremity injuries were the reason he failed to properly perform the field sobriety tests. The judge found the testimony lacked credibility as there was no evidence that defendant had any disabilities as a result of his injuries before the tests were administered. He determined that defendant failed to properly perform the tests due to intoxication. We defer to this credibility assessment.
In Point II, defendant argues that the municipal court violated his right to confrontation by failing to permit his counsel to cross-examine Longo about whether Longo or the other officers at the scene had any physical impairments that would prevent them from successfully completing the field sobriety tests or standing on the slightly-inclined road. The argument has no merit.
Since defendant did not raise this argument before the Law Division, we review it under the plain error standard of review. R. 2:10-2. Under that standard, we must find that an error was "clearly capable of producing an unjust result," ibid., or in other words, that it was "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that a plain error was "clear" and "obvious" and that it affected his "substantial rights." State v. Chew, 150 N.J. 30, 82 (1997) (citation omitted).
The intent of the Confrontation Clause of the Sixth Amendment is to afford a criminal defendant the opportunity to challenge anyone who presents testimony against him or her. Crawford v. Washington, 541 U.S. 36, 51-59, 124 S. Ct. 1354, 1364-69, 158 L. Ed. 2d 177, 192-97 (2004). "The primary interest advanced by the Confrontation Clause is the right of cross-examination." State v. Laboy, 270 N.J. Super. 296, 303 (App. Div. 1994) (citing Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct. 2658, 2662, 96 L. Ed. 2d 631, 641 (1987)). Cross-examination gives "the accused an opportunity to test the recollection of and sift the conscience of the witness[,]" and "compels the witness to stand face to face with the jury in order that it may observe him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Ibid. (citing Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 339, 39 L. Ed. 409, 411 (1895)). However, the scope of cross-examination is committed to the sound discretion of the court and will not be disturbed on appeal absent a clear abuse of that discretion. State v. Mieles, 199 N.J. Super. 29, 41 (App. Div. ) (citation omitted), certif. denied, 101 N.J. 265 (1985).
Here, it is undisputed that defense counsel was permitted to cross-examine Longo. The question is whether the municipal court judge abused his discretion in limiting the scope of defendant's cross-examination. In an attempt to establish that the field sobriety tests were performed on a slightly-inclined road that would also cause others problems in performing the tests, defense counsel sought to question Longo about another officer's physical size and history of knee injuries. In sustaining the State's objections, the judge ruled that defense counsel was going too far afield to assess defendant's ability to perform the field sobriety tests by comparing defendant with someone else. We do not conclude that the municipal court judge abused his discretion by limiting defendant's cross-examination. Thus, there was no Confrontation Clause violation, and no plain error.
We next address defendant's argument in Point III that the Law Division's reliance on defendant's silence at the scene of the accident violated his constitutional right against self-incrimination. As with the Confrontation Clause issue, defendant did not raise this argument before the Law Division. Thus, we review it under the plain error standard of review.
It is well settled that an individual has a privilege against self-incrimination under the Fifth Amendment of the Constitution of the United States and under the common law of this State. State v. Deatore, 70 N.J. 100, 113-14 (1976). This privilege also extends to defendants tried for DWI-related offenses. State v. Stas, 212 N.J. 37, 51 (2012). However, the right to remain silent is not violated when "a defendant agrees to give a statement" because "he or she has not remained silent, but has spoken." State v. Tucker, 190 N.J. 183, 189 (2007). Thus, "it is not an infringement of a defendant's right to remain silent for the State to point out differences in the defendant's testimony at trial and his or her statements that were freely given." Ibid. The State may seek to impeach the validity between two or more statements or between a statement and testimony at trial made by the defendant. Id. at 190.
Here, prior to administering the first field sobriety test, Longo asked defendant if he had any injuries that would impede his ability to perform the tests. By stating that his torn knee cartilage was repaired and he could perform the tests, defendant did not remain silent and the statement was admissible. It was only when defendant realized that he could not perform the one-leg-stand and walk-and-turn tests that he stated, "I cannot do this. . . . I had knee surgery." At trial, defendant blamed his failed performance on the slight incline in the road and his knee surgery. There was no claim that the statement was admitted in error. However, in affirming defendant's DWI conviction, the judge properly relied on defendant's statement that his knee was healthy and he could perform the field tests. This did not constitute an unconstitutional comment on defendant's silence nor plain error.
Lastly, defendant's contention in Point IV that he was entitled to a jury trial is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Our Supreme Court recently rejected this claim in State v. Denelsbeck, ___ N.J. ___ (2016).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION