Opinion
DOCKET NO. A-4803-10T2
03-19-2013
STATE OF NEW JERSEY Plaintiff-Respondent, v. HUGO WONG, Defendant-Appellant.
Walter J. Tencza, attorney for appellant (David J. Tencza, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4928.
Walter J. Tencza, attorney for appellant (David J. Tencza, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a de novo trial in the Law Division, defendant Hugo Wong was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; and hindering one's own apprehension, N.J.S.A. 2C:29-3b(4). Defendant's sole defense in the Law Division, as in the municipal court, was that he was not the operator of the vehicle. Before us, defendant re-iterates, in a single point, that the State's evidence "did not prove beyond a reasonable doubt that [he] was the operator of the motor vehicle." We have considered this argument in light of the record and applicable legal standards. We affirm substantially for the reasons expressed in the comprehensive written opinion of Judge Donald J. Volkert, Jr.
Initially, as Judge Volkert noted, defendant stipulated that his blood alcohol content (BAC) was 0.20, well beyond the legal limit of 0.08. See N.J.S.A. 39:4-50(a) (defining the offense as operating "a motor vehicle with a blood alcohol concentration of 0.08[] or more"). In the municipal court, Sonia Ortiz (Sonia) testified that at approximately 11:00 p.m. on December 25, 2009, she walked to her car parked across from her house on Mahar Avenue in Clifton. As she prepared to pull out from her parking space, Sonia saw a vehicle approaching at a high rate of speed in her rearview mirror. That car lost control and crashed into parked vehicles.
To avoid confusion, we use the first names of the members of the Ortiz family. We intend no disrespect by this informality.
Sonia testified that there was only one person in the driven car, a male, who exited from the driver's side "in a very aggressive manner." Shortly thereafter, Sonia saw a woman arrive in another car to assist the driver, and, although Sonia pointed the driver out to a police officer who responded, she was unable to identify defendant in court.
Oscar Ortiz (Oscar) testified that he was living with his mother, and, on the night in question, he heard what he believed to be a car accident. He left his house and, after checking on his mother, approached the vehicle that crashed to provide assistance. Only one person was inside, a male, who became quite aggressive and exited the vehicle. Oscar identified defendant as that man. Oscar smelled alcohol on his breath and testified that defendant tried to hit him, until his mother interceded.
Defendant objected to Oscar being called as a witness because he was not mentioned in the police reports. However, noting that the trial was likely to continue to a second day, the municipal court judge overruled the objection, reasoning that defendant could interview Oscar, if he wished, before he was called. Defense counsel declined this opportunity.
Oscar stated that a few minutes later, another car arrived at the scene and dropped off a female passenger. She attended to the driver of the car and asked Oscar not to call the police. He did anyway. Oscar testified the woman wanted him to tell the police that she was driving.
When Clifton police officer Mohamed Droubi arrived, he saw Sonia and two people, a man and a woman, standing outside the vehicle that had crashed. Droubi asked defendant what happened, and defendant immediately responded, "I wasn't driving." Droubi smelled alcohol on defendant's breath and made other visual observations that led him to believe defendant was intoxicated. Droubi looked in the car and noticed the driver's seat was pushed back away from the steering wheel. He concluded the seat was too far back to accommodate the female, who was only five feet, two inches tall, while defendant was five feet, nine inches tall. Droubi further testified that, at the scene, Sonia identified defendant as the driver.
Diana Llerena, defendant's girlfriend, testified that she and defendant were returning from a party, and she was driving because defendant had been drinking. She claimed that, in an attempt to avoid a car pulling out from a parking space, she swerved and lost control, colliding with parked cars. About ten minutes later, Llerena saw a man approach and "put his hand on [her] chest as if to stop [her] from doing something." Llerana testified that defendant got out of the car and became upset "when he saw for himself the accident." Llerena also testified that she "moved the seat back" in order to exit the car. She did not call the police because she "didn't have [her] cell phone an her" and her boyfriend's cell phone battery was dead. She was also close to her home.
Defendant testified that he was drinking at the earlier party but was not driving the car. He saw Sonia with a man, who he claimed was not Oscar, and he became angry when the man touched Llerena's chest.
Judge Volkert concluded the "State's two independent witnesses . . . [were] credible witnesses . . . ." He noted they were "unbiased" and "could easily have left the scene but did not." The judge also determined that Llerena and defendant "[were] not credible witnesses," concluding, in part, that "[t]heir inconsistent versions of events . . . undermine[d] their credibility."
Judge Volkert, however, concluded that although the State produced evidence that the events occurred within 1000 feet of a school, see N.J.S.A. 39:4-50(g)(1), the State's witness, Michael Lardner, an assistant municipal engineer, did not establish that the schools within the 1000-foot radius "were used for school purposes." Reasoning by analogy from the Supreme Court decision in State v. Ivory, 124 N.J. 582 (1991), Judge Volkert acquitted defendant of the school-zone offense.
In Ivory, supra, 124 N.J. at 591, the Court held that one of the elements correctness to prove distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7, was that the property was "used for school purposes." The propriety of Judge Volkert's ruling in this regard is not before us.
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Before us, defendant essentially argues that the testimony of Sonia and Oscar was incredible, and the State failed to prove beyond a reasonable doubt that he was the operator of the vehicle. In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); see also, State v. Olivieri, 336 N.J. Super. 244, 251 (App. Div. 2001) (noting that on "appeal from a de novo trial on the record, we . . . consider only the action of the Law Division and not that of the municipal court").
We do not "'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). As the Court has explained:
Appellate courts should 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. Moreover, the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual
issues. 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.
[Id. at 474 (citations omitted) (emphasis added.]
Here, the findings made by Judge Volkert found ample support in the record. Both the municipal court judge and Judge Volkert concluded the testimony adduced by the State was more credible than that produced by the defense. Hence, we find no reason to reverse defendant's convictions.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION