STATE OF NEW JERSEY v. MIRAJ PATEL (44-2013, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-1336-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIRAJ PATEL,

Defendant-Appellant.
_______________________

Submitted December 14, 2021 – Decided January 19, 2022

Before Judges Mayer and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Municipal Appeal No. 44-
2013.

The Hernandez Law Firm, PC, attorneys for appellant
(Thomas Cannavo, of counsel and on the brief).

Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, on the brief).

PER CURIAM
 In this appeal, we review for a fourth time defendant Miraj Patel's October

30, 2014 conviction, after a trial de novo, of driving while under the influence

of intoxicating liquor (DWI), N.J.S.A. 39:4–50. Having considered defendant's

arguments in light of the facts and applicable law, we affirm.

I.

Shortly before midnight on December 2, 2011, Woodbridge Police Officer

Joseph A. Angelo stopped defendant after observing him travel 44 m.p.h. in a

25-m.p.h. zone. Defendant fumbled with his credentials and smelled of

alcoholic beverages. After exiting his vehicle to perform field sobriety tests,

defendant swayed while standing in place. He raised his arms for balance during

the one-leg-stand test. While he performed the walk-and-turn test, he failed to

place the heel of one foot closely in front of the toes of the other, and he twice

deviated from a straight line. He admitted he consumed two beers and a shot.

Angelo arrested defendant on suspicion of DWI and transported him to

the station to administer the Alcotest chemical breath test.1 Angelo testified that

he observed defendant for twenty minutes, according to his wristwatch, before

1
Defendant was also charged with speeding, N.J.S.A. 39:4–98; driving without
a license, N.J.S.A. 39:3–10; and reckless driving, N.J.S.A. 39:4–96. Defendant
was convicted of the first two and the State dismissed the third at the end of the
trial.
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beginning the Alcotest. The machine measured a .15 blood alcohol content

(BAC).

The municipal court denied multiple defense pre-trial motions. Defendant

sought to suppress the fruits of the arrest on the grounds it lacked probable cause.

He moved to exclude the Alcotest results because, allegedly, the police

deliberately destroyed a station video, and Officer Angelo did not observe

defendant for twenty minutes. See State v. Chun, 194 N.J. 54, 79 (2008).

Defendant also unsuccessfully sought a jury trial. The court granted the

State's pre-trial motion to quash a subpoena of Officer Angelo's cellphone

records during the time he observed defendant and administered the Alcotest.

The court also denied defendant's mid-trial requests for an N.J.R.E. 104 hearing

regarding admissibility of the Alcotest results, and a Miranda2 hearing after

Officer Angelo testified that on the way to the station defendant predicted he

would not do well on the chemical breath test.

At trial, Officer Angelo testified to the circumstances surrounding

defendant's arrest and his poor performance on field sobriety tests . Defendant

did not testify but relied on expert testimony that challenged Officer Angelo's

interpretation of defendant's performance during the field sobriety tests and

2
Miranda v. Arizona, 384 U.S. 436 (1966).
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disagreed with the officer's conclusion that defendant was intoxicated . The

municipal court found defendant guilty of DWI based upon both Officer

Angelo's observations and defendant's Alcotest results. As it was defendant's

third DWI conviction, the court imposed a 180-day jail term and applicable fines

and penalties.

On de novo review, the Law Division found defendant guilty based upon

the results of the Alcotest but failed to address whether defendant's guilt could

be established based on Officer Angelo's observations alone. The court rejected

defendant's claim that the police officers' failure to preserve and produce the

stationhouse video deprived him of his right to due process. The court held there

was probable cause to arrest, found the officer observed defendant for the

requisite twenty minutes, and did not address defendant's appeal from the order

quashing his subpoena of the officer's cell phone records.

Defendant appealed and we issued an opinion affirming in part, reversing

in part, and remanding to the Law Division for further proceedings. State v.

Patel, No. A-1683-14 (App. Div. May 2, 2016) (slip op. at 1). Most of the issues

raised in the first appeal related to the admissibility of the Alcotest eviden ce.

We remanded the case to the Law Division to decide whether it should draw an

adverse inference against the State based on our conclusion that there had been

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a discovery violation when police failed to preserve the video recording related

to their administration of the Alcotest. We also concluded that the municipal

court judge should have exercised his discretion to hold a N.J.R.E. 104 hearing

as to the admissibility of the Alcotest results and ordered the Law Division judge

on remand to conduct such a hearing where defendant should be permitted to

testify. Finally, we instructed the Law Division judge on remand to rule on the

observational method of proving a DWI offense.

On remand, the Law Division conducted the required N.J.R.E. 104 hearing

at which both the arresting officer and defendant testified about the

administration of the Alcotest. The judge issued a written decision stating his

reasons for again convicting defendant based on the Alcotest results, without

ever addressing the observational case. In his decision, among other findings,

the judge found that it was "obvious from [defendant's] testimony [at the Rule

104 hearing] that [defendant was] not credible."

Defendant appealed, and in our second review, we again remanded the

matter to the Law Division because despite our directions, the Law Division "did

not address [the] part of our [earlier] decision" that instructed the judge to

determine "whether the State's proofs adduced at the municipal court trial were

sufficient to support defendant's DWI conviction based on observational

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evidence." State v. Patel, No. A-3189-16 (App. Div. June 21, 2019) (slip op. at

1).

In remanding the matter again, we stressed the heightened need for a

determination of the State's observational case considering the Supreme Court's

opinion in State v. Cassidy, 235 N.J. 482 (2018), which invalidated the Alcotest

results "in many cases, including this one." Id. at 2. We also concluded that the

issue of whether an adverse inference should be drawn was still viable despite

the invalidity of the Alcotest results because "a security camera video recording

of defendant's physical appearance and behavior in the stationhouse would meet

the threshold test of relevance with respect to the observational method of

proving a violation of N.J.S.A. 39:4-50." Id. at 9.

In response to our second remand, the Law Division again convicted

defendant and the judge issued a written decision setting forth his findings and

conclusions of law as to the observational case against defendant. According to

the judge, he relied upon not only the municipal court record of defendant's trial

in 2013, but he also considered the testimony of defendant and the arresting

officer at the N.J.R.E. 104 hearing about the admissibility of the Alcotest. The

judge decided not to draw an adverse inference against the State because "neither

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party could represent whether the video would have shown further indicators

regarding defendant's intoxication [for or against]."

Defendant appealed for a third time. While we did not find the judge

abused his discretion in his decision not to draw an adverse inference against

the State, we concluded that the court applied an incorrect standard of review

and improperly considered evidence adduced at the N.J.R.E. 104 hearing. State

v. Patel, No. A-0330-19 (App. Div. Nov. 23, 2020) (slip op. at 10-11). We

explained that the judge's reference to the "substantial evidence rule . . .

conflated his role with ours." Id. at 9. We remanded for review before a new

judge to reconsider the conviction under the proper standard of review, "based

only upon the evidence adduced at the municipal trial." Id. at 6.

On the third remand, after considering the record from the municipal court

proceedings and considering the parties' oral arguments, Judge Robert J. Jones

found defendant guilty of DWI. Judge Jones issued a conforming January 20,

2020 order and a comprehensive and thorough written opinion that addressed

and rejected defendant's claims that he was not driving while intoxicated. The

judge also considered and rejected defendant's arguments that the DWI charge

should be dismissed on speedy trial and double jeopardy grounds.

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 As to defendant's double jeopardy argument, the judge first explained that

defendant waived the issue as he failed to brief it, raising it for the first time

during oral argument. Judge Jones further noted that double jeopardy would

nonetheless not apply because defendant never faced a second prosecution for

the same offense, but only appealed his conviction after he was unsuccessful in

the municipal court. In such circumstances, the judge explained that "de novo

review of [defendant's] conviction is part of the appellate process."

On the speedy trial issue, Judge Jones considered and rejected defendant's

arguments after applying the four-part test detailed in Barker v. Wingo, 407 U.S.

514, 530 (1972).3 The judge first found that defendant failed to raise the speedy

trial issue at any prior time in the lengthy proceedings. Judge Jones also

determined that although the length of the delay was "prolonged," part of the

3
The four-part test to determine when a violation of a defendant's speedy-trial
rights contravenes due process — announced in Barker and subsequently
adopted by our Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976) —
requires "[c]ourts [to] consider and balance the '[l]ength of delay, the reason for
the delay, the defendant's assertion of his right, and prejudice to the defendant.'"
State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (third alteration in
original) (quoting Barker, 407 U.S. at 530). "No single factor is a necessary or
sufficient condition to the finding of a deprivation of the right to a speedy trial. "
Id. at 10. Our Supreme Court has "decline[d] to adopt a rigid bright-line try-or-
dismiss rule," instead continuing its commitment to a "case-by-case analysis"
under the Barker balancing test; it has acknowledged "that facts of an individual
case are the best indicators of whether a right to a speedy trial has been violated."
State v. Cahill, 213 N.J. 253, 270-71 (2013).
A-1336-20
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delay in resolution of defendant's matter related to the appellate process. The

judge also concluded that defendant failed to show "any significant prejudice"

as he "did not suffer a jail sentence" and the "trial already took place," meaning

missing witnesses or fading memories were not at issue. Judge Jones also found

significant that defendant failed to support his claim that he suffered from

anxiety and financial repercussions related to the delay.

As noted, the judge also concluded defendant was guilty of DWI based on

the observational evidence elicited at the municipal court trial. Judge Jones

reviewed the evidence from that proceeding and made specific credibility

findings in favor of Officer Angelo. Specifically, Judge Jones stated Officer

Angelo gave an "inherently believable account of what happened." The judge

also credited Officer Angelo's "candor" and noted the absence of any significant

inconsistencies in his testimony. Judge Jones discerned no embellishment or

exaggeration in his testimony and noted no inconsistencies. In sum, the judge

found "no reason to depart from [the municipal court's] finding that Officer

Angelo was credible and defendant's testifying expert, while qualified, was not

at the scene of the arrest."

Based on Officer Angelo's testimony, the judge specifically found that

defendant exhibited "several tell-tale signs of intoxication," including an odor

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of alcoholic beverages, glassy and bloodshot eyes, swaying and loss of balance,

and fumbling for his credentials. Defendant also failed to place his heel to his

toe while performing the walk-and-turn test, denied drinking, and admitted

drinking two beers and a shot that evening.

Judge Jones stated that while "when viewed in isolation, each fact would

not lead [him] to find intoxication beyond a reasonable doubt," when

considering the totality of the evidence, he ultimately had "no doubt Patel drove

drunk." He also explained that two additional factors reinforced this finding.

First, the fact that defendant was speeding, while not on its own indicative of

driving while intoxicated, "suggest[ed] carelessness, which can result from

having too much to drink." Second, defendant admitted to consuming alcohol

prior to driving.

Finally, Judge Jones declined to draw an adverse inference from the

missing video. Defendant had not offered any compelling reason for him to

"second-guess" the prior judge's decision that defendant was not entitled to the

adverse inference and our subsequent affirmation on that issue. He explained

that even if he were to draw the adverse inference against the State, a "favorable

video from police headquarters would not lead [him] to a different conclusion,

as it does not undercut the officer's testimony about what happened when

A-1336-20
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[defendant] was pulled over, something that took pace closer to the time he'd

been drinking."

At sentencing, counsel argued defendant should be sentenced in

accordance with the new DWI penalties, pursuant to L. 2019, c. 248, enacted in

2019, which reduced the term of license suspension for third-time offenders

from ten to eight years. Defendant maintained that this provision should be

applied retroactively because the new law was ameliorative. Defendant further

argued sentencing under the previous DWI statute would violate his equal

protection rights by treating persons who commit the same offense differently.

Judge Jones rejected these arguments in an oral decision. He rejected

defendant's equal protection argument because it erroneously compared

defendants based upon timing of their offense, rather than comparing defendants

who committed an offense on the same day.

The judge also relied on Gibbons v. Gibbons, 86 N.J. 515, 521 (1981), and

concluded that the statute's express language indicated it was to be applied

prospectively. The judge noted that the Legislature "spoke unequivocally" by

providing an effective date of December 1, 2019 and applying the new law only

to offenses committed on that date or subsequent. The ten-year licensure

suspension under the previous statute therefore correctly applied to defendant

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and the court sentenced defendant to penalties attendant to a third DWI,

including 180 days in jail.

This appeal followed, in which defendant raises the following points:

POINT I

THE LAW DIVISION ERRRED IN FINDING
DEFENDANT GUILTY OF DWI BASED ON
OBSERVATIONS. THUS, THIS COURT SHOULD
REVERSE AND REMAND FOR A JUDGMENT OF
ACQUITTAL.

POINT II

THE LAW DIVISION ERRED IN REFUSING TO
APPLY AN ADVERSE INFERENCE, OR ANY
REMEDY, FOR THE DISCOVERY VIOLATION.

POINT III

THE LAW DIVISION ERRED IN FAILING TO
DISMISS THE DWI CHARGE BASED ON SPEEDY
TRIAL GROUNDS.

POINT IV

EVEN IF THE SPEEDY TRIAL MOTION DENIAL IS
AFFIRMED, THE DWI CHARGE SHOULD HAVE
BEEN DISMISSED UNDER PRINCIPLES OF
DOUBLE JEOPARDY APPLICABLE AT THE TIME
OF THE DWI OFFENSE.

POINT V

EVEN IF THE CHARGE IS NOT DISMISSED AS A
VIOLATION OF DEFENDANT'S FEDERAL OR

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 STATE DOUBLE JEOPARDY RIGHTS, THIS
COURT SHOULD DISMISS BASED UPON
FUNDAMENTAL FAIRNESS.

POINT VI

THE LAW DIVISION ERRED BY NOT
SENTENCING THIS DEFENDANT UNDER THE
NEW DWI STATUTE, L. 2019, C. 248, WHICH
INCLUDES EIGHT YEARS OF LICENSE
FORFETIURE INSTEAD OF TEN YEARS OF
SUSPENSION ON THE THIRD DWI CONVICTION.

A. Failure to apply the new DWI and refusal sentencing
law to this defendant and any third offender
sentenced after its August 23, 2019 passage, violated
defendant's constitutional Equal Protection rights.

B. Even if the effective date provision of the new DWI
sentencing law is upheld as constitutional on its face
or as applied to third offenders, as a matter of
fundamental fairness and inherent authority of our
courts to retroactively sentence to ameliorative
terms, this defendant and all third DWI and Refusal
offenders sentenced after August 23, 2019 should
have been so sentenced under the provisions of Laws
of 2019, c. 248.

We affirm defendant's conviction and reject the arguments raised in Points

II, III, IV and VI substantially for the reasons set forth in Judge Jones's

thoughtful written and oral decisions, and conclude defendant's contentions in

Point V, raised for the first time before us, are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We also reject defendant's

A-1336-20
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argument detailed in Point I, again substantially for the reasons expressed by

Judge Jones, and provide the following comments to amplify the reasons for our

decision.

II.

Defendant contends that without his Alcotest results, which were rendered

inadmissible by the Supreme Court's decision in Cassidy, there was insufficient

credible evidence to convict him of DWI based on observations alone. We

disagree.

After his conviction in municipal court, defendant sought de novo review

by the Law Division, which "provides a reviewing court with the opportunity to

consider the matter anew, afresh [and] for a second time." In re Phillips, 117

N.J. 567, 578 (1990) (alteration in the original) (internal quotation marks

omitted); see also R. 3:23-8(a)(2). Upon de novo review, the Law Division

judge must make independent findings of fact and conclusions of law but defers

to the municipal court's credibility findings. State v. Robertson, 228 N.J. 138,

147 (2017).

Our "standard of review of a de novo verdict . . . is to 'determine whether

the findings made could reasonably have been reached on sufficient credible

evidence present in the record, considering the proofs as a whole.'" State v.

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Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Johnson, 42 N.J.

146, 162 (1964)). Further, substantial deference is given to a trial court's

findings of fact in a non-jury case. Cesare v. Cesare, 154 N.J. 394, 411-12

(1998). 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.

The rule of deference is more compelling where, as here, the municipal

and Law Division judges made concurrent findings. 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. "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 Locurto, 157 N.J. at 470). Our review

of the Law Division's legal determinations or conclusions, however, is plenary

and "[a] trial court's interpretation of the law and the legal consequences that

flow from established facts are not entitled to any special deference. "

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

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 N.J.S.A. 39-4:50 prohibits the operation of a motor vehicle while under

the influence of intoxicating liquor or drugs. This offense may be proven in

either of two alternative methods: (1) proof of a defendant's blood alcohol level;

or (2) proof of a defendant's physical condition. State v. Kashi, 360 N.J. Super.

538, 545 (App. Div. 2003). Normally, Alcotest results are admissible in DWI

cases to "establish a defendant's guilt or innocence for drunk driving" under the

first method. Cassidy, 235 N.J. at 486. In light of Cassidy, and the attendant

inadmissibility of defendant's Alcotest results, his DWI conviction requires

analysis of Officer Angelo's observations on the night of the arrest.

Under the second method, "[t]he 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) (citing State v.

Emery, 27 N.J. 348, 355 (1958)). As it relates to intoxicating liquor specifically,

"under the influence" means a condition "which so affects the judgment or

control of a motor vehicle operator as to make it improper for him to drive on

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

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 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, 456-57

(App. Div. 2003) (sustaining DWI conviction based on observations of

defendant's bloodshot eyes, hostility, and strong odor of alcohol); State v.

Morris, 262 N.J. Super. 413, 421 (App. Div.1993) (finding evidence of slurred

speech, abrasive demeanor, disheveled appearance, bloodshot eyes and

alcoholic odor on defendant's breath sufficient to sustain a DWI conviction).

Additionally, the failure of a defendant to perform adequately on balance

and coordination tests 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. 1996) (citing State v. Slinger, 281 N.J. Super 538, 543 (App. Div. 1995)).

A combination of various factors is enough to support the conclusion that

defendant was driving under the influence of alcohol. See State v. Cleverley,

348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on

officer's observation of the defendant's driving without headlights, inability to

perform field sobriety tests, combativeness, swaying, and detection of odor of

alcohol on the defendant's breath); 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 perform field

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sobriety tests, and defendant's admission to drinking alcohol earlier in the day),

overruled on other grounds, State v. Clancaglini, 411 N.J. Super. 280 (App. Div.

2010).

Defendant contends that the reasonable doubt standard required to find

him guilty of DWI is "stringent" and much higher than probable cause, and

therefore we should vacate his conviction and enter a judgment of acquittal. He

further argues that while the officer's observations might have established

probable cause to arrest him, the results of the field sobriety tests do not prove

beyond a reasonable doubt that he drove drunk. In support of this argument,

defendant relies upon State v. Bernokeits, which addressed the standard of proof

required to expand the scope of a traffic stop and conduct roadside field sobriety

testing, finding that such testing may be undertaken on the basis of reasonable

suspicion alone. 423 N.J. Super. 365, 376 (App. Div. 2011). Defendant's

reliance on Bernokeits is misplaced, as that case does not relate to the

reasonable-doubt standard employed by courts when determining a defendant's

guilt for a DWI offense. The standard discussed in Bernokeits related to a police

officer's decision to conduct roadside field sobriety testing.

We have thoroughly reviewed the record and we are satisfied that Judge

Jones' findings are based upon sufficient credible evidence. The judge found

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Officer Angelo credible and determined based on his testimony that defendant

was driving while under the influence of alcohol. Officer Angelo testified that

defendant put his foot down twice during the one-leg-stand test and "had his

arms out, swaying for balance." During the walk-and-turn test, defendant lost

his balance on two steps, and did not touch his heel to toe for any of the eighteen

steps. Together with defendant's speeding, bloodshot eyes, fumbling for

credentials and admission to drinking several alcoholic beverages, the totality

of the circumstances indicated beyond a reasonable doubt that defendant drove

while under the influence of alcohol. These credibility and factual findings are

amply supported by the record and warrant our deference.

Affirmed.

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