STATE OF NEW JERSEY VS. DARUIS L. SMITH (34-15, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-0491-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARIUS L. SMITH,

Defendant-Appellant.
______________________________

Argued May 14, 2018 – Decided June 6, 2018

Before Judges Rose and Firko.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Municipal
Appeal No. 34-15.

Julio Navarro argued the cause for appellant
(Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys; Julio Navarro, of counsel and on
the brief).

Melinda A. Harrigan, Special Deputy Attorney
General, argued the cause for respondent
(Gurbir S. Grewal, Attorney General, attorney;
Melinda A. Harrigan, of counsel and on the
brief).

PER CURIAM
 Defendant Darius L. Smith appeals from his conviction, after

a trial de novo, for driving while under the influence of

intoxicating liquor ("DUI"), N.J.S.A. 39:4-50(a)(1)(i) and (ii).

He presents the following points on appeal:

POINT I:

THE LAW DIVISION JUDGE COMMITTED A
REVERS[I]BLE ERROR AS THE FINDING THAT THE
TROOPER WAS ABLE TO SUCCESSFULLY COMPLETE THE
TWENTY-MINUTE OBSERVATION PERIOD IS NOT
SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN
THE RECORD.

POINT II:

THE LAW DIVISION JUDGE MADE A REVERSIBLE ERROR
BY NOT EXCLUDING THE ALCOTEST CALCULATOR
RESULTS AS THEY WERE NEVER PROPERLY
AUTHENTICATED PURSUANT [TO] N.J.R.E. 901 &
902.

POINT III:

THE LAW DIVISION JUDGE COMMIT[T]ED A
REVERSIBLE ERROR BY NOT EXCLUDING TESTIMONY
THAT WAS PROVIDED AFTER THE TROOPER REFRESHED
HIS RECOLLECTION WITH A POLICE REPORT
CONTAINING THE WRONG PERSON'S NAME.

POINT IV:

THE LAW DIVISION JUDGE COMMITTED A REVERSIBLE
ERROR AS THE TOTALITY OF THE FACTS DO NOT
SUPPORT A FINDING THAT THE DEFENDANT'S
PHYSICAL STATE HAD SUBSTANTIALLY
DETERIORATED.

We affirm, substantially for the reasons set forth in the

comprehensive written opinion of Judge Damon G. Tyner. There was

2 A-0491-16T4
sufficient credible evidence in the record to support Judge Tyner's

finding that defendant was driving under the influence.

Our standard of review is limited following a trial de novo

in the Law Division conducted on the record developed in the

municipal court. State v. Clarksburg Inn, 375 N.J. Super. 624,

639 (App. Div. 2005). In such an appeal, we "consider only the

action of the Law Division and not the municipal court." State

v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). We focus

our review on "whether there is 'sufficient credible evidence

. . . in the record' to support the trial court's findings." State

v. Robertson, 228 N.J. 138, 148 (2017) (alteration in original)

(quoting State v. Johnson, 42 N.J. 146, 162 (1964)). On a legal

determination, in contrast, our review is plenary. State v.

Kuropchak, 221 N.J. 368, 383 (2015).

Nevertheless, we will reverse only after being "thoroughly

satisfied that the finding is clearly a mistaken one and so plainly

unwarranted that the interests of justice demand intervention and

correction." Johnson, 42 N.J. at 162. "We do not weigh the

evidence, assess the credibility of witnesses, or make conclusions

about the evidence." State v. Barone, 147 N.J. 599, 615 (1997).

Because neither the appellate court nor the Law Division judge is

in a good position to judge credibility, the municipal court's

credibility findings are given deference. State v. Locurto, 157

3 A-0491-16T4
N.J. 463, 470-71 (1999). The rule of deference is more compelling

where, as here, both judges made concurrent findings. Id. at 474.

"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. (citation omitted).

Therefore, appellate review of the factual and credibility

findings of the municipal court and the Law Division "is

exceedingly narrow." State v. Reece, 222 N.J. 154, 167 (2015)

(quoting Id. at 470).

Judge Tyner credited the arresting officer's testimony that

he responded to a dispatch regarding an erratic driver travelling

on the Atlantic City Expressway. The officer observed defendant

failing to stay in his lane and changing lanes without using a

turn signal. After stopping and questioning defendant, he denied

drinking. His eyes were bloodshot and watery, his eyelids were

droopy, and alcohol emanated from his breath. Here, the Law

Division judge found the arresting officer's testimony credible

that he had to start the Alcotest three times because the first

time, defendant asked for water and the second time, he

surreptitiously slipped a piece of gum into his mouth, thereby

affecting the efficacy of the test. The twenty minute observation

4 A-0491-16T4
period had to be started anew for the third attempt. We find no

error here.

Defendant also challenges the reliability of the Alcotest

contending that the officer did not administer it properly. We

reject defendant's argument that a precise recording by the officer

was required as to the twenty minute observation periods. Applying

our deferential standard of review, we find that Judge Tyner

concluded that the twenty minute observation period requirement

was satisfied. See State v. Chun, 194 N.J. 54, 89, 93 (2008). We

also discern no merit in defendant's contention that the officer's

testimony was unclear on this subject and lacked proof as to when

defendant was brought to the processing room, or whether a timing

device was used. The Law Division judge found that the State met

its burden as to this issue by clear and convincing evidence based

upon the credibility of the officer. His testimony was

uncontradicted.

We also reject defendant's argument that the Alcotest

calculator results were not properly authenticated pursuant to

N.J.R.E. 901 and 902. The Law Division judge found that the State

met its burden and laid a proper foundation in admitting the

Alcotest calculator worksheet into evidence. See State v. Brunson,

132 N.J. 377, 393 (1993). The officer testified with meticulous

detail how he created the calculator worksheet and the source of

5 A-0491-16T4
the data. Follow up colloquy established "evidence sufficient to

support a finding that the matter is what its proponent claims."

N.J.R.E. 901. This is consistent with the principle that we will

defer to a trial court's evidentiary ruling, in the absence of an

abuse of discretion that results in a manifest denial of justice.

State v. Lykes, 192 N.J. 519, 534 (2007). Accordingly, we discern

no basis for reversal here. Judge Tyner was satisfied that the

questions were clarifying.

We also reject defendant's argument that the Law Division

judge improvidently failed to exclude a report used by the officer

to refresh his recollection which set forth another individual's

name. Judge Tyner found "that the trooper relied on his memory

for a majority of his testimony" and only relied on the report

"for a minimal part to accurately refresh his recollection." The

officer was found to be credible in his explanation of the "cut

and paste method" utilized in completing the report at issue.

Judge Tyner was satisfied that the officer was "credible in his

explanation of this issue" and that his testimony was not

prejudicial.

Defendant challenges the reliability of the observations made

by the arresting officer who testified. The Law Division judge

credited the arresting officer's testimony that he observed

defendant "switching lanes without using a turn signal" and that

6 A-0491-16T4
he "continuously failed to maintain his lane, going back and forth

while driving." The officer further testified that defendant had

"slow, slurred speech and swayed as he got out of the vehicle."

These facts were significant to support a conclusion that

defendant's consumption of alcohol "so affected [his] judgment or

control as to make it improper for him to drive on the highways."

Id. at 165. Put another way, defendant was under the influence

because he suffered "a substantial deterioration or diminution of

the mental faculties or physical capabilities of a person

. . . ." State v. Tamburro, 68 N.J. 414, 421 (1975). Accordingly,

we find no basis for reversal here.

Affirm.

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