STATE OF NEW JERSEY VS. DAVID GUAMAN (6116, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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).

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 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

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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

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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

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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

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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

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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).
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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.

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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

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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

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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.

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 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

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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

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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.

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 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.

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 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.

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