NOT FOR PUBLICATION WITHOUT THE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