STATE OF NEW JERSEY VS. WILLIAM HILL

A-4544-19

Defendant was initially charged with carjacking.  While he was awaiting trial, he sent a letter to the victim's home address, urging her to reconsider her identification of him as the robber.  That resulted in an additional charge of witness tampering.

The court rejects defendant's contention that the witness tampering statute, N.J.S.A. 2C:28-5(a), is overbroad and impermissibly vague on its face.  A person commits witness tampering if he or she knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to do one or more specified actions, such as testify falsely or withhold testimony.  Defendant contends the "reasonable person" feature renders the statute unconstitutional and, to avoid constitutional infirmity, the statute must be construed to require the State to prove he knew his conduct would cause a prohibited result.  

First addressing defendant's overbreadth challenge, the court reaffirms that preventing the intimidation of, and interference with, potential witnesses or informers in criminal matters is an important governmental objective.  The court also notes a defendant who is awaiting trial for a violent crime has no First Amendment right to communicate directly with the victim.  Were it otherwise, a court setting the conditions of pretrial release under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, might be foreclosed from imposing a "no contact" order.  The court concludes the witness tampering statute is not overbroad weighing the importance of the exercise of speech against the gravity and probability of harm resulting from that speech.

With respect to defendant's vagueness challenge, the court declines to embrace a new rule that would categorically prohibit the Legislature from using a reasonable-person test to determine a defendant's culpability.  The court rejects the argument that the "reasonable person" feature in the witness tampering statute is analytically indistinguishable from the portion of the bias intimidation statute, N.J.S.A. 2C:16-1(a)(3), that was struck down on vagueness grounds in State v. Pomianek, 221 N.J. 66 (2015).  The invalidated portion of the bias intimidation statute employed a subjective test under which a defendant's culpability was determined from the perspective of the specific victim who was targeted.  That led the Supreme Court to conclude that "guilt may depend on facts beyond the knowledge of the defendant or not readily ascertainable by him [or her]."  Pomianek, 221 N.J. at 89.

The "reasonable person" standard employed in the witness tampering statute, in contrast, does not account for, much less depend on, what the victim actually perceived or believed.  Rather, the witness tampering statute uses an objective standard, effectively eliminating the concern expressed in Pomianek regarding idiosyncratic personal characteristics of the victim about which a defendant might be unaware.  

The court also notes the bias intimidation statute employed a convoluted culpability provision that focused on the victim's speculation as to the defendant's purpose.  That formulation had not been used in any preexisting statute and was never replicated in New Jersey or any other jurisdiction.  The objective "reasonable person" formulation employed in the witness tampering statute, in contrast, appears throughout the New Jersey Code of Criminal Justice.

State v. Terrell M. Chambers

 State v. Terrell M. Chambers A heightened discovery standard governs a defendant’s motion for pre-incident mental health records from a sexual assault victim. The Court establishes the standard applicable to a formally filed motion and also outlines a less formal process through which defendants may make requests for discovery of the pre-incident mental health records of an alleged sexual assault victim by letter to the prosecutor’s office. So that the new procedural and analytical framework can be applied in this case, the Court vacates the orders under review and remands the matter for further proceedings.

State v. Deje M. Coviello

 State v. Deje M. Coviello  The sentencing court, and not the MVC, has the appropriate jurisdiction over defendant’s motion for sentencing credit concerning the IID requirement.

State v. Mongillo Court DWI affirmed, finding ample evidence in the record to support defendant's conviction, including the arresting officer's testimony and the MVR footage

State v. Mongillo   Court DWI affirmed, finding ample evidence in the record to support defendant's conviction, including the arresting officer's testimony and the MVR footage 

.  Daily briefing December 30, 2022

 

Defendant appealed his conviction for DUI, refusal to submit to breath testing, reckless driving, and failing to maintain lane, following a trial de novo. Prior to the municipal court trial, the parties stipulated to the admission of mobile video recording. The state presented the testimony of the arresting officer, who testified regarding his observations of defendant's driving and his behavior, and the attempts to have defendant perform field sobriety testing. The municipal court convicted defendant on all counts based on the officer's testimony. The municipal court also relied on the officer's testimony regarding his efforts to have defendant submit to breath testing to find that defendant failed to provide unequivocal assent to the test, which constituted a refusal. Defendant sought a trial de novo, arguing that the prosecutor's reference to the failure of defendant's co-worker to testify constituted plain error and that the municipal court erred in admitting evidence of defendant's field sobriety testing. The trial court rejected defendant's arguments and affirmed his conviction, finding that the municipal court's judgment was based on the arresting officer's first-hand observations and not on any consideration of field sobriety test results. The trial court also noted that the officer's testimony was corroborated by the MVR. On appeal, the court affirmed, finding ample evidence in the record to support defendant's conviction, including the arresting officer's testimony and the MVR footage, which the court held was considered by the trial court.

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.

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
WILLIAM MONGILLO, JR.,

Defendant-Appellant. _________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3002-20

Argued October 13, 2022 – Decided December 30, 2022

Before Judges Enright and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 07-06- 2021.

PER CURIAM
Defendant William Mongillo appeals from a May 14, 2021 Law Division

order, entered after a trial de novo on appeal from the shared Hopatcong and Stanhope municipal court, finding him guilty of driving while under the influence of intoxicating liquor (DUI), N.J.S.A. 39:4-50(a); refusal to submit to a breath test, N.J.S.A. 39:4-50.2; reckless driving, N.J.S.A. 39:4-96; and failure to maintain a lane, N.J.S.A 39:4-88(b). Defendant argues his convictions should be vacated and we should remand this matter because the trial court erred by failing to properly review and consider the exhibits received in evidence at the municipal trial. We find no merit to defendant's arguments and affirm.

I.

The following facts were adduced at the municipal court trial in February 2020. Prior to the start of testimony, the parties stipulated to the admission of a mobile video recording (MVR) into evidence. Defense counsel further agreed to waive the State's obligation to lay a factual and legal foundation for admitting the MVR into evidence.

The State's case consisted entirely of the testimony of Stanhope Police Department Sergeant Ryan P. Hickman. Hickman offered extensive testimony about his observations of defendant and his attempt to have defendant perform

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a standard field sobriety test. Defense counsel did not object to the introduction and admission of the New Jersey Standard Statement for Motor Vehicle Operators (SSMVO) and Drinking Driving Questionnaire (DDQ) into evidence. At the end of the trial, the judge reserved decision.

In June 2020, the municipal court judge issued a ten-page decision finding defendant guilty of all charges based on Hickman's observations of defendant. The judge concluded Hickman observed defendant "swerv[ing]" while driving his car and failing to maintain a lane of travel by "crossing the double yellow lines twice."1 After the officer initiated the stop and advised defendant he was swerving, defendant claimed to be "looking at his GPS" because he "needed directions to get home," although he was only twenty-five yards away. When Hickman asked defendant for his license, registration and insurance, defendant refused to make eye contact. Defendant's movements were "slow and deliberate," and he "dropped some paperwork" taken out of his glovebox. Hickman detected alcohol on defendant's breath as defendant spoke. When asked if he had been drinking, defendant admitted to consuming five beers over the course of three hours.

1 The record reflects one of the observations was captured on video, while the other occurred prior to the video being activated.

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Additionally, the judge determined Hickman directed defendant to get out of the car. Defendant "stumbled a little bit" as he got out of the car. Defendant's eyes jumped like "a typewritter ribbon" when the officer administered the horizontal gaze nystagmus (HGN) test. Hickman could not demonstrate the walk-and-turn test because defendant kept talking. Defendant was unable to complete the test because he was "unable to stand in the starting position," "tried raising his foot" and "stumbled twice."

Based on the officer's observations, defendant's statements and the failed field sobriety test, Hickman determined defendant was under the influence of alcohol. Defendant was then placed under arrest and read his Miranda2 rights. When asked if he understood his rights, defendant responded "no," then laughed and said he "understood."

At the police station, Hickman read defendant the SSMVO. When asked to take a breath test, defendant replied, "Tomorrow." Defendant was advised his answer was not acceptable and the law required that he submit samples for testing, and defendant would be charged with a refusal for any answer other than "yes.". Defendant then asked, "What is the legal limit in New Jersey?"

 

2 Miranda v. Arizona, 384 U.S. 436 (1966). 4

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Hickman made a second attempt to proceed with the standard protocol for drivers arrested for DUI. Defendant was again advised of his Miranda rights. Hickman asked defendant if he had consumed any alcohol to which he responded, "Recently, I haven't had any. I'm with you." Throughout this encounter, defendant's face was "flushed," and his speech was "mumbled and slurred." Also during this time, defendant went from being polite to "uncooperative[,] . . . downright rude," and "antagonistic." Defendant also "[made] fun of [Hickman]."

Considering defendant's testimony, the municipal judge stated he was driving home and was almost in his driveway when he was stopped by Hickman. Defendant testified he was unable to produce documents from the car because he did not know their location. Defendant contradicted Hickman's testimony, stating he: did not stumble when he exited the vehicle; performed the HGN test "very well and very good," and did not oppose a blood or urine test. Defendant also claimed the terrain was not conducive to permit the walk-and-turn test.

Based on the evidence and that of Hickman's, the municipal judge found defendant guilty of all charged offenses. The judge explained that "[t]he observations made by Sergeant Hickman of the [d]efendant, combined with the

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totality of the circumstances here, [was] enough to prove beyond a reasonable doubt that the [d]efendant was operating a motor vehicle under the influence."

Regarding defendant's refusal to take a breath test, the judge stated "anything substantially short of an[] unequivocal assent to an officer's request that the [d]efendant take the breath test constitutes a refusal." The judge further found the officer's testimony that defendant did not agree to take the breath test "the most credible testimony," while defendant's testimony was "evasive, . . . disingenuous, misleading, untrustworthy, insincere and untruthful" and summarily described as "acrimonious, rhetorical," and "not credible at all." Accordingly, the judge concluded "the State met its burden of proof [beyond] a reasonable doubt as to all charges." The judge sentenced defendant on the DUI charge as a first offender, suspending defendant's driving privileges for ninety days, and imposing other mandatory fines and penalties. Similarly, the judge imposed the mandatory fines and penalties on the remaining charges, and stayed the sentence pending defendant's appeal to the Law Division. Defendant timely appealed to the Law Division.

At the trial de novo in the Law Division, defendant challenged the conviction, contending the municipal prosecutor's reference to the failure of a female co-worker to testify on defendant's behalf during final summation

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constituted plain error under New Jersey law. Defendant also contested the municipal judge's admission of HGN and DDQ evidence. As such, defendant argued the convictions should be reversed and remanded to a "conflict" municipal court.

Following the de novo trial, on May 14, 2021, Judge Louis S. Sceusi rendered a comprehensive written decision. The judge rejected defendant's arguments and concluded the State met its burden as to each charge. The judge accepted Hickman's testimony after considering the thirty-five pages of the officer's direct testimony and his "short" cross-examination. The judge expressly noted Hickman's "first-hand observations" of defendant's intoxication was "substantial evidence " to establish the State's burden of proof. The judge also determined his findings were made "without considering the HGN results or any information elicited from the [DDQ]."

With regard to defendant's failure to maintain a lane charge, Judge Sceusi found Hickman observed defendant deviate from his lane of travel when his driver's side tires crossed over a double yellow line on two occasions. The judge further concluded Hickman's testimony "could be corroborated by reviewing the MVR which was admitted into evidence by stipulation."

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Based on the evidence presented and his credibility determinations, the judge also found comments made by the State in its closing summation about a female witness's failure to testify for defendant "did not suggest to the court that it diminished the State's burden of proof." The judge noted defense counsel failed to object to the prosecutor's comments, which "signifie[d] that the defense counsel did not believe the remarks to be prejudicial." Thus, Judge Sceusi concluded the municipal judge's failure to strike this comment did not warrant reversal or remand.

Judge Sceusi also concluded "the admission of HGN and DDQ evidence" was also harmless error "in view of the substantial evidence of [d]efendant's guilt[] from other observational testimony" presented in the municipal court, "which, by itself, [was] sufficient for the [d]efendant to be found guilty on these charges." Based on the judge's de novo review of the evidence, he concluded "there [was] ample additional observational evidence presented" which satisfied the State's burden beyond a reasonable doubt. Consequently, the judge denied the appeal, found defendant guilty of all charges, and imposed the same sentence as the municipal court.

On appeal, defendant raises the sole argument:

THE APPELLATE DIVISION SHOULD VACATE DEFENDANT-APPELLANT'S MOTOR VEHICLE

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CONVICTIONS AND REMAND THE MA TTER BACK TO THE SECOND TRIAL COURT SINCE AN OBJECTIVE REVIEW OF THE TRIAL DE NOVO STRONGLY SUGGESTS THAT IT FAILED TO RECEIVE, REVIEW, AND CONSIDER THE EXHIBITS THAT WERE RECEIVED IN EVIDENCE DURING DEFENDANT-APPELLANT'S TRIAL AT THE FIRST TRIAL COURT.

II.
Our standard of review is limited following a de novo appeal to the Law

Division, conducted on the record and developed in the municipal court. State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div. 2011) (citation omitted); see also R. 3:23-8(a)(2). We consider only "'the action of the Law Division and not that of the municipal court.'" State v. Palma, 219 N.J. 584, 591-92 (2014) (quoting State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)). 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)).

Conversely, we review de novo the court's legal conclusions and the legal consequences that flow from established facts. See State v. Goodwin, 224 N.J. 102, 110 (2016). We consider only "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Stas, 212 N.J. 37, 48-49 (2012) (quoting Locurto, 157 N.J. at 471); see also

       

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State v. Robertson, 228 N.J. 138, 148 (2017). However, "[a] trial court's resolution of a discovery issue is entitled to substantial deference and will not be overturned absent an abuse of discretion." State v. Stein, 225 N.J. 582, 593 (2016). Likewise, "[w]e review evidentiary rulings under an abuse of discretion standard." State v. Jackson, 243 N.J. 52, 64 (2020); see also Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (noting that the abuse of discretion standard is established "when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis'") (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

Given our standard of review, we are satisfied the record contains ample credible evidence to support Judge Sceusi's finding defendant was guilty of all charged offenses.

In contending Judge Sceusi failed to consider exhibits admitted into evidence, defendant particularly argues the judge "never received, reviewed, or considered the MVR evidence." Defendant contends the "[L]aw [D]ivision did not make a single finding in either the trial de novo itself or its statement of reasons describing anything that was depicted on the [twenty-six] minutes, [thirty-]second MVR." Specifically, defendant argues that, in the statement of

     

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reasons which accompanied the May 14, 2021 order, the judge failed to make a "corresponding reference to the MVR evidence" which defendant asserts contradicted Hickman's testimony that he observed defendant twice crossing the double yellow line; "pull[ing] himself up on the door" and "stumbl[ing]" when he got out of the car; and performing the walk-and-turn test. Defendant further argues the judge made his finding "solely" predicated on Hickman's testimony elicited at the municipal court trial.

In support of his argument, defendant relies on Stein for the proposition that, if the MVR contradicts the officer's testimony, such evidence is relevant in contested DUI matters. We reject defendant's arguments and conclude reliance on Stein is misplaced. In Stein, our Supreme Court held municipal prosecutors are required to provide requested videotapes that may have recorded defendant's appearance, behavior, and motor skills pursuant to Rule 7:7-7(b). 225 N.J. at 596-97. Here, there is no discovery violation concerning the MVR.

Additionally, the record is bereft of evidence that Judge Sceusi did not consider all of the evidence presented in the municipal trial. Likewise, the record does not support defendant's claim that a trial de novo was conducted without the MVR. Contrary to defendant's contentions, Judge Sceusi noted the stipulation of the MVR into evidence which supported Hickman's testimony.

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Thus, we find no merit in defendant's argument the judge's written opinion "suggests" the MVR was not received or reviewed.

Next, we note, "[a] driver is 'under the influence' of alcohol, N.J.S.A. 39:4-50, when his or her 'physical coordination or mental faculties are deleteriously affected.'" State v. Nunnally, 420 N.J. Super. 58, 67 (App. Div. 2011) (quoting State v. Emery, 27 N.J. 348, 355 (1958)). "'Intoxication' not only includes obvious manifestations of drunkenness but any degree of impairment that affects a person's ability to operate a motor vehicle." State v. Zeikel, 423 N.J. Super. 34, 48 (App. Div. 2011).

Here, Hickman's testimony provided sufficient credible evidence establishing defendant was under the influence of alcohol, engaged in reckless driving and failed to maintain a lane. Defendant admitted to drinking five beers within three hours and prior to the stop, defendant swerved and crossed the double yellow lines twice. Hickman also noted defendant had the smell of alcohol on his breath, mumbled and slurred his words, was not able to complete the field sobriety tests, swayed as he stood, had difficulty finding his license in the glovebox and giving it to Hickman, and could not get out of the car without pulling up on his car's door. As properly determined by the judge, Hickman's "first[]hand observations" were enough and amply supported his testimony that

  

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defendant was "intoxicated," and the judge's findings defendant was "intoxicated". See State v. Bealor, 187 N.J. 574, 588 (2006); see also State v. Corrado, 184 N.J. Super. 561, 567 (App. Div. 1982). Further, we concur with Judge Sceusi that the officer's testimony credibly established defendant engaged in reckless driving and failed to maintain his lane during the incident.

Having reviewed the record and guided by the governing principles, we are satisfied Judge Sceusi conducted a thorough review of the municipal court record in the trial de novo.

To the extent we have not addressed them, any remaining arguments made

3(e)(2).
Affirmed. The stay of defendant's sentence is vacated and remanded to the

Law division to impose defendant's sentence on all charges. We do not retain jurisdiction.

by defendant lack sufficient merit to warrant discussion in this opinion.

R. 2:11-

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Court affirmed Dyal subpoena State v. Ross

 Court affirmed Dyal subpoena 

 State v. Ross State appealed the denial of its search warrant application for a bullet and a Dyal subpoena for hospital medical records pertaining to surgery to remove the bullet. Daily Briefing January 04, 2023

State appealed the denial of its search warrant application for a bullet and a Dyalsubpoena for hospital medical records pertaining to surgery to remove the bullet. Defendant was shot in an exchange of gunfire with police officers and was treated at hospital in December 2017. He was indicted on multiple counts of first-degree attempted murder, second-degree aggravated assault, fourth-degree aggravated assault and weapons offenses in February 2018. In July 2018, prosecutor asked hospital if any bullet or metal fragments had been removed from defendant's body during his treatment. Hospital replied a bullet in defendant's abdomen had not been removed during emergency surgery. Motion judge denied State's motion to compel discovery in October 2021. Defendant had elective surgery in June 2022 to remove the bullet in his abdomen. Hospital informed police of the removed bullet and prosecutor applied for a search warrant. Motion judge denied the application, finding it tantamount to a motion to compel defendant to turn over potentially incriminating evidence. Court found motion judge erred by treating the search warrant application as if it were the functional equivalent of a motion to compel reciprocal discovery. The reciprocal discovery process implicated different constitutional rights than those raised by the issuance of a search warrant. Defendant's right to conduct a defense investigation did not foreclose State from obtaining a warrant to seize tangible evidence in the custody of a third party

Court further affirmed the state's objection to a portion of the defense expert's testimony, ruling that the testimony sought to impermissibly introduce a hearsay expert opinion of a medical diagnosis State v. Jaggie

Court further affirmed the state's objection to a portion of the defense expert's testimony, ruling that the testimony sought to impermissibly introduce a hearsay expert opinion of a medical diagnosis

State v. Jaggie 

Daily briefing December 08, 2022 

  Defendant also presented an expert in field sobriety tests who opined that none of the tests during defendant's traffic stop were performed correctly. The expert further opined that sleep conditions could affect a person's ability to drive and perform field sobriety tests. The municipal court sustained the state's objection to the expert's testimony regarding whether defendant had a sleep disorder diagnosis. The municipal court found defendant guilty of DWI and refusal, crediting the testimony of the police officers. Defendant requested a trial de novo, and the trial court affirmed defendant's conviction and sentence. On appeal from the trial court, the court affirmed in part and remanded.   

    The court ruled that there was sufficient credible testimony from the police officers for the municipal court to find that defendant was operating his vehicle while intoxicated and refused to submit to a breath test. The court further affirmed the state's objection to a portion of the defense expert's testimony, ruling that the testimony sought to impermissibly introduce a hearsay expert opinion of a medical diagnosis that the expert had read in one of defendant's medical reports, especially where the expert had no medical expertise. But the court ruled that the trial court erroneously affirmed the municipal court sentence rather than imposing a new sentence as required.

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.

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
DAVID A. JAGGIE,

Defendant-Appellant. _______________________

Argued November 28, 2022 – Decided December 8, 2022

Before Judges Messano and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 24- 20.

John R. Klotz argued the cause for appellant.

Lillian Kayed, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Lillian Kayed, on the brief).

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2829-20

Following a trial de novo in the Law Division, defendant David Jaggie was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. He appeals, arguing that there was insufficient evidence to establish his guilt beyond a reasonable doubt and the testimony of his expert was improperly limited. We are not persuaded by those arguments, and we affirm defendant's convictions. We remand, however, so that the Law Division can impose a sentence. The Law Division mistakenly affirmed the sentence imposed by the municipal court instead of imposing a new sentence as required after a trial de novo.

I.
On February 11, 2019, the car defendant was driving was stopped and he

was charged with several offenses, including DWI and refusal to submit to an alcohol breath test. The trial de novo in the Law Division was conducted on the municipal court record.

At trial in the municipal court, five witnesses testified: Officer Paul Pimenta, Officer Anthony Giardullo, Officer Paul Gawin, defendant, and defendant's expert Herbert Leckie. Officer Pimenta testified that in the early morning hours of February 11, 2019, he saw a vehicle in the Lincoln Tunnel veer sharply left and right and cross over the center lines of the roadway.

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Pimenta stopped the vehicle, which had been driven by defendant, and when he spoke to defendant, he detected a strong smell of alcohol and saw that defendant's eyes were bloodshot and watery. Defendant told Officer Pimenta that he consumed two beers earlier that night.

Officer Giardullo then responded to the scene to administer field sobriety tests. Giardullo testified that defendant had difficulty getting out of his vehicle and got stuck in his seatbelt. Giardullo then administered three sobriety tests, but defendant was unable to perform any of the tests satisfactorily.

Defendant was placed under arrest and transported to Port Authority Police Headquarters where Officer Gawin attempted to administer a breath test. Gawin testified that he read defendant the New Jersey Attorney General's Standard Statement for Motor Vehicle Operations (the Standard Statement), which informed defendant that he was required to submit a breath sample and that if he refused, he would be charged. Gawin also explained the consequences of refusing to submit to the test, including license revocation, installation of an ignition interlock device, referral to a driver training program, and the imposition of various penalties. Thereafter, Gawin twice asked defendant whether he would give a sample of his breath and each time defendant refused

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to submit a breath sample. Accordingly, defendant was charged with several offenses, including DWI, refusal, and unsafe lane change.

During his testimony, defendant explained that he had difficulties with sleeping and breathing and those difficulties sometimes affected his physical performance of activities. Leckie was qualified as an expert on field sobriety and breath tests. He opined that none of the field sobriety tests administered to defendant were performed correctly and were therefore unreliable. Leckie also testified that he had reviewed one of defendant's medical reports and opined that sleep-related conditions could affect a person's ability to drive and perform field sobriety tests. When Leckie attempted to testify about defendant's sleep apnea diagnosis and whether defendant had a sleep disorder, the State objected. The municipal judge sustained the objection and did not allow that testimony.

The municipal judge found defendant guilty of operating a motor vehicle while under the influence of alcohol, refusing to submit to a breath test, and failure to maintain a lane. In making those findings, the judge credited the testimony of the officers, including the observations made by Officers Pimenta and Giardullo. The municipal judge also found Officer Gawin's testimony credible concerning defendant's refusal to submit to a breath test. The municipal judge merged the convictions for DWI and refusal and sentenced defendant to a

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three-year license suspension, installation of an interlock device in his vehicle for one year, a DWI driver training program, and payment of fines and costs.

Defendant filed an appeal requesting a trial de novo in the Law Division. After reviewing the municipal court record and hearing oral argument, on March 26, 2021, the Law Division issued a written opinion and order finding defendant guilty of DWI and refusal. The Law Division did not impose a new sentence as required under Rule 3:23-8(e). Instead, the Law Division affirmed the sentence imposed by the municipal court. Defendant now appeals from the Law Division's March 26, 2021 order.

II.
On this appeal, defendant makes four arguments, which he articulates as

follows:

POINT I – THE LAW DIVISION ERRED IN DENYING [DEFENDANT'S] CLAIM THA T THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION FOR DRIVING WHILE INTOXICATED.

POINT II – THE LAW DIVISION ERRED IN DENYING [DEFENDANT'S] CLAIM THA T THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION FOR REFUSAL.

POINT III – THE LAW DIVISION ERRED IN DENYING [DEFENDANT'S] CLAIM THA T THE COURT IMPERMISS[I]BLY LIMITED THE

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TESTIMONY OF HIS EXPERT, HERB[ERT] LECKIE, AND THUS DENIED THE DEFENSE THE ABILITY TO PRESENT A FULL AND FAIR DEFENSE.

POINT IV – CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL.

On an appeal of a municipal conviction to the Law Division, the Law Division judge must decide the matter de novo on the record. State v. Monaco, 444 N.J. Super. 539, 549 (App. Div. 2016) (citing R. 3:23-8(a)(2)). This means that the Law Division judge must independently make his or her own factual findings, rather than determine whether the findings of the municipal judge were supported by sufficient credible evidence. State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012); see also State v. Johnson, 42 N.J. 146, 157 (1964). In making findings about witness credibility, the Law Division judge should give "due" but "not necessarily controlling" weight to the municipal judge's credibility determinations, because the municipal judge had the opportunity to observe the testimony firsthand. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (quoting Johnson, 42 N.J. at 157).1

1

      

In his opinion, the Law Division judge correctly identified that he was to conduct a de novo review. At other places in the opinion, however, the judge sometimes stated that he was relying on the municipal judge's findings and deferring to the municipal judge's credibility findings. Our review of the record

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When we review the Law Division judge's decision, our standard is different and more limited. We do not decide the facts de novo. Instead, we decide whether the Law Division judge's factual findings were supported by "sufficient credible evidence." State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting Johnson, 42 N.J. at 161-62); Monaco, 444 N.J. Super. at 549. Where both the municipal judge and the Law Division judge have found a witness credible, we owe particularly strong deference to the Law Division judge's credibility findings. State v. Robertson, 228 N.J. 138 (2017). We review the Law Division judge's legal conclusions de novo. See State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010).

1. The Conviction for DWI.

A person is guilty of DWI if he or she "operates a motor vehicle while under the influence of intoxicating liquor . . . or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood." N.J.S.A. 39:4-50(a). "Under the influence" of alcohol means a driver's "physical coordination or mental faculties are deleteriously

satisfies us that the Law Division judge conducted an appropriate de novo trial. We remind Law Division judges, however, that they should use the appropriate de novo standard of review and make that clear in their oral or written findings of facts and conclusions of law.

     

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affected." State v. Nunnally, 420 N.J. Super. 58, 67 (App. Div. 2011) (first quoting N.J.S.A. 39:4-50, and then quoting State v. Emery, 27 N.J. 348, 355 (1958)). The driver does not have to be "absolutely 'drunk'" or "sodden with alcohol." State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988). So long as the alcohol "affects the [driver's] judgment or control . . . 'as to make it improper for him [or her] to drive,'" the driver is under the influence. State v. Cryan, 363 N.J. Super. 442, 455 (App. Div. 2003) (quoting Johnson, 42 N.J. at 165).

Proof of intoxication can be based on a police officer's observations. See State v. Slinger, 281 N.J. Super. 538, 543 (App. Div. 1995). Those observations may include "physical evidence of drunkenness, such as . . . failure of defendant to perform adequately on balance and coordination tests." State v. Ghegan, 213 N.J. Super. 383, 385 (App. Div. 1986); see also State v. Sisti, 209 N.J. Super. 148, 150-51 (App. Div. 1986) (finding that defendant was under the influence based on officer's observations of erratic driving, inability to produce driver's license, an alcoholic odor from defendant's breath, slow hand movements, and failure to pass a field test for balance).

Officer Pimenta testified that he saw defendant driving erratically, smelled alcohol on defendant's breath, saw defendant's eyes were bloodshot and

         

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watery, and observed defendant fumble for his driving documents when asked to provide them. Officer Giardullo testified that defendant got tangled in his seatbelt while exiting his car and failed three field sobriety tests. Based on their observations of defendant, both Pimenta and Giardullo believed that defendant was under the influence of alcohol.

The municipal judge found both officers' testimony credible. The Law Division judge relied on those credibility findings and effectively adopted them. The credible testimony of the officers was sufficient to establish beyond a reasonable doubt that defendant had driven his vehicle while under the influence of alcohol in violation of N.J.S.A. 39:4-50(a).

2. The Conviction for Refusal to Submit to a Breath Test.

Under the implied consent statute, "[a] person who operates a motor vehicle on any public road, street or highway . . . in this State, shall be deemed to have given his [or her] consent to the taking of samples of his [or her] breath for the purposes of making chemical tests to determine alcohol concentration." N.J.S.A. 39:3-10.24(a). If a defendant refuses to provide a breath sample, a police officer must read the Standard Statement, which "inform[s] the person arrested of the consequences of refusing to submit to such test." N.J.S.A. 39:4- 50.4a; State v. Marquez, 202 N.J. 485, 501 (2010).

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Refusal is "a separate and distinct offense from [the] conviction of drunk driving." State v. Wright, 107 N.J. 488, 504 (1987). Our Supreme Court has outlined four elements to sustain a conviction for refusal to submit to a breath test:

(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for [DWI]; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.

[Marquez, 202 N.J. at 503.]
An officer who reads the Standard Statement satisfies the requirement to inform the motorist of the consequences of refusal to submit to a breath test. Id. at 509- 10.

The testimony by Officers Pimenta and Giardullo established that there was probable cause to believe that defendant had been driving while under the influence and he was therefore arrested for DWI. Officer Gawin testified that he read defendant the Standard Statement and defendant twice refused to submit to the test. The Law Division judge correctly found that Officer Gawin's testimony complied with the statutory requirements establishing that defendant had been requested to submit to the test but refused. The Law Division judge

 

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also correctly rejected defendant's testimony that he could not recall saying no because that testimony does not undercut the testimony of Officer Gawin. Consequently, there was sufficient evidence to find defendant guilty of refusal.

3. The Testimony of Defendant's Expert.

Defendant argues that the Law Division erred in denying his claim that the municipal court improperly limited Leckie's testimony. The municipal court had sustained the State's objection when Leckie tried to testify about a diagnosis of sleep apnea which Leckie read in a medical report. The Law Division correctly agreed with the municipal court's decision to limit Leckie's testimony.

An expert must have a factual basis for an opinion. Townsend v. Pierre, 221 N.J. 36, 55 (2015). Under N.J.R.E. 703, facts or data on which an expert bases his or her opinion "need not be admissible in evidence" so long as they are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." The rule "permits a hearsay statement, such as a medical report by a non-testifying expert, to be referred to by a testifying expert for the purpose of apprising the [fact finder] of the basis for his [or her] opinion." Agha v. Feiner, 198 N.J. 50, 63 (2009). The rule "does not, [however], allow expert testimony to serve as 'a vehicle for the "wholesale [introduction] of otherwise inadmissible evidence."'" Ibid. (second alteration in

 

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original) (quoting State v. Vanderweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002)).

N.J.R.E. 808 limits the presentation of hearsay expert opinions. Specifically, that rule directs:

Expert opinion that is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion tend to establish its trustworthiness. Factors to consider include the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion.

Together Rules 703 and 808 "limit the ability of a testifying expert to convey to [a fact finder] either (1) objective 'facts or data' or (2) subjective 'opinions' based on such facts, which had been set forth in a hearsay report issued by a non-testifying expert." James v. Ruiz, 440 N.J. Super. 45, 66 (App. Div. 2015). "In either instance, the testifying expert may not serve as an improper conduit for substantive declarations (whether they be objective or subjective in nature) by a non-testifying expert source." Ibid.

Leckie was permitted to reference the non-testifying doctor's medical report as it related to his opinion that defendant's sleep condition might have affected defendant's ability to drive or perform field sobriety tests. The Law

 

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Division and municipal court were both correct in limiting Leckie from testifying about the doctor's diagnosis or whether defendant had a sleep disorder. The diagnosis and the issue of whether defendant had a sleep disorder require medical expertise. Leckie had no such expertise. Accordingly, Leckie could not offer an opinion outside his area of expertise by referencing a medical opinion in a report by a non-testifying medical doctor.

4. The Cumulative Errors.

Having rejected all of defendant's substantive arguments concerning errors, there are no cumulative errors warranting a reversal. In analyzing a claim of cumulative errors, the focus is whether the "cumulative effect can cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 443 (2008). The record establishes that defendant was accorded a fair trial.

5. The Sentence.

After conducting a trial de novo, the Law Division is required to impose a new sentence. State v. Moran, 202 N.J. 311, 325 (2010) (citing R. 3:23-8(e)). Here, the Law Division judge incorrectly affirmed the municipal court sentence. Accordingly, we remand so that the Law Division can impose a new sentence. That sentence cannot impose penalties beyond the penalties imposed in the municipal court. State v. Ciancaglini, 204 N.J. 597, 604 (2011). In remanding,

  

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we vacate any previously entered stay of defendant's sentence. Accordingly, when defendant is sentenced, the sentence is to take effect immediately.

Affirmed in part and remanded. We do not retain jurisdiction.

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