January 23, 2011

No lawsuit based on violation of Crime Victim Act BRADICICH v. TOWNSHIP OF HANOVER

No lawsuit based on violation of Crime Victim Act

BRADICICH v.

TOWNSHIP OF HANOVER, TOWNSHIP OF

HANOVER POLICE DEPARTMENT, VIOLATIONS

BUREAU, MUNICIPAL COURT JUDGE BRIAN

O'TOOLE, SERGEANT ANTHONY VITANZA,

DISPATCHER JOHN COLLORA, PATROLMAN

JAMES GRAWEHR, PATROLMAN ROBERT

CARPENTER, PATROLMAN DOMINIC KAISER,

and SERGEANT ZVOLENSKY,

Defendants-Respondents.

_____________________________________

October 14, 2010


Submitted September 14, 2010 - Decided

Before Judges Wefing and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Morris County,

Docket No. L-3324-07.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0561-09T3

Plaintiff appeals from a trial court order granting summary judgment to defendants. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff's pleadings and brief are somewhat disorganized, but from them we glean the following factual background; our recitation is not intended to be an exhaustive list of plaintiff's complaints and allegations but, rather, to survey the highlights.

Plaintiff alleged that on October 16, 2005, she was assaulted by a former boyfriend, and several days thereafter, she went to the Hanover Township Police Department to file a complaint against him. Defendant Collora was the dispatcher on duty. She contended that officers at police headquarters, defendants Grawehr and Zvolensky, treated her rudely and completed written reports falsely. Plaintiff asserted below that she went to the police to file an assault complaint, not to seek a restraining order against her former boyfriend. The officers on duty nevertheless contacted the municipal court judge, who, after speaking to plaintiff, declined to issue a restraining order against her former boyfriend.

She returned to the police headquarters on two successive days and was not able to obtain a copy of the police report that had been prepared and filed. Plaintiff states in her papers that she obtained a temporary restraining order the following day from a judge of the Superior Court; she has not provided a copy of that order although the table of contents to her appendix refers to it.

According to her brief, she was contacted in the middle of November by a man she had previously dated, whom she identifies only as "Michael." She said Michael left a message on her telephone answering machine threatening to kill her and her former boyfriend if he saw the boyfriend's truck at plaintiff's home. Michael, she said, also threatened to beat up friends of the former boyfriend.

After drinking a quantity of wine, plaintiff drove to the Hanover police station to deliver a tape recording of Michael's message, arriving around midnight. Defendant Collora was again the dispatcher on duty, and he informed her that there was no officer available to take her report, as all were out responding to other calls. She said she waited for approximately an hour and then went to her car to retrieve her cell phone and purse. She sat in the car with the motor running for another period of time, smoking a cigarette. She was approached by two officers, who, smelling alcohol on her breath, asked her to step out of the car. She refused to do so, despite repeated requests. Eventually, the two officers removed her from the car. She says they acted in a brutal manner and injured her. The trial court viewed a DVD recording of the incident recorded by one of the video cameras in one of the patrol cars and noted that it did not substantiate plaintiff's version of what had occurred. We have also reviewed that DVD and concur completely with the trial court's assessment. Plaintiff was then arrested for obstruction of justice, N.J.S.A. 2C:29-1, and driving while intoxicated, N.J.S.A. 39:4-50. A subsequent Alcotest produced a blood alcohol reading between .147 and .149.

Plaintiff alleges that several days after this incident, she had an encounter with another Superior Court judge who, she maintains, "advised" her to dismiss the temporary restraining order she had earlier obtained against her former boyfriend. This, she maintains, was the result of a communication from the municipal court judge who had originally denied her request for a temporary restraining order, seeking to influence the Superior Court judge against her. Plaintiff has provided no proof to support these allegations. She says she did dismiss the restraining order but did not do so voluntarily, but as a result of "coercion" from the Superior Court judge.

She later appeared before that same municipal court judge on the charge of driving while intoxicated and was convicted. She appealed that conviction to the Law Division, where she was again found guilty of driving while intoxicated. In her brief, she contends that the municipal court judge denigrated and insulted her during the municipal court proceedings. She has not provided a transcript against which we could measure her allegations.

Plaintiff also alleges that police officers subsequently broke into her home to read the medical records of her son, who, she said, was contemplating seeking a position on the Township's police force. She said some personal items were taken and some were moved. She said closet doors were damaged and bore the markings of black fingerprint dust. She also maintains that her computer was "compromised," that the police took the keys to her truck, that the municipal court judge tampered with her mail and other individuals stalked her.

Plaintiff also contends that she subsequently had a severe emotional breakdown and attempted to harm herself, as a result of which she spent several years in therapy. She has included in her appendix a report of a psychiatric evaluation performed in January 2006 that indicates a diagnosis of bipolar affective disorder.

She later filed suit, ultimately naming the Township of Hanover; the Hanover Police Department; the Violations Bureau; Hanover's municipal court judge; Patrolmen Grawehr, Carpenter, and Kaiser; Dispatcher Collora; Sergeant Vitanza; and Sergeant Zvolensky, all of the Hanover police force, as defendants.[1] Although it is difficult to discern her precise claims from her pleadings, we conclude that she attempted to assert claims based upon violations of the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38, 42 U.S.C.A. § 1983, and tort claims involving negligence and infliction of emotional distress. The trial court granted summary judgment to all defendants, and this appeal followed.

I

We turn first to the claims plaintiff has attempted to plead with respect to the municipal court judge, including her assertion that he violated her rights under the Fourteenth Amendment to the United States Constitution when he denied her request for a temporary restraining order, that he violated the Crime Victim's Bill of Rights by the manner in which she contends he treated her, that he committed official misconduct when he allegedly communicated his views of plaintiff to a Superior Court judge, that he tampered with her mail and violated various canons of judicial conduct.

We are satisfied that the trial court correctly granted summary judgment with respect to these claims. Both under statute, N.J.S.A. 59:3-2(b), and under common law, Malik v. Ruttenberg, 398 N.J. Super. 489, 495-96 (App. Div. 2008), the municipal court judge is entitled to absolute immunity for his actions. Judges enjoy absolute immunity for their judicial actions. Delbridge v. Schaeffer, 238 N.J. Super. 323, 333 (Law Div. 1989), aff'd o.b. sub nom. A.D. v. Franco, 297 N.J. 1, 6 (1993), certif. denied, 135 N.J. 467, cert. denied, 513 U.S. 832, 115 S. Ct. 108, 130 L. Ed. 2d 56 (1994). This principle is firmly embedded in our jurisprudence. "[N]o action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice." Bradley v. Fisher, 80 U.S. 335, 349 n.16, 20 L. Ed. 646, 650 (1872).[2]

We are unable to determine the truth or falsity of plaintiff's allegations with respect to the municipal court judge. If the conduct alleged in fact occurred, her remedy must lie in filing a complaint with the Advisory Committee on Judicial Conduct, not in filing a complaint in a court of law.

Beyond the question of immunity, the municipal court judge would also be entitled to summary judgment on the ground that plaintiff's complaint was filed beyond the statute of limitations. N.J.S.A. 59:8-8(b) creates a two-year statute of limitations, computed from "accrual of claim" for any claims against a public entity or employee. There is also a general two-year statute of limitations for torts, N.J.S.A. 2A:14-2, and a two-year limitations period for claims under 42 U.S.C.A. § 1983. Freeman v. State, 347 N.J. Super. 11, 21-22 (App. Div.), certif. denied, 172 N.J. 178 (2002); 42 U.S.C.A. § 1988.

Plaintiff attempts to escape this bar by contending her suit was timely because it was filed within two years of the notice of claim she had filed. Plaintiff's argument misreads the statute. Her claim accrued at the time of the incidents of which she complains, not when she filed her notice of claim under N.J.S.A. 59:8-8.

Finally, with respect to the claim that the municipal court judge tampered with her mail, plaintiff simply presented no admissible evidence to defeat a motion for summary judgment.

II

We turn now to the claims plaintiff has asserted against the Township and its police department.[3] A municipality such as the Township of Hanover may not be held liable under 42 U.S.C.A. § 1983 absent a showing that the wrongs complained of occurred pursuant to a municipal policy or custom; a municipality is not subject to liability under 42 U.S.C.A. § 1983 under the doctrine of respondeat superior. Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611, 638 (1978). Plaintiff has not alleged or proven that Hanover had a policy or custom that resulted in the alleged violation of her civil rights and, to the extent plaintiff asserted a § 1983 action against the Township, it was entitled to summary judgment.

In addition, to the extent that one or more of the Township's employees were entitled to immunity, the Township was similarly entitled to immunity. It thus, for example, is entitled to immunity for the claims plaintiff has posited against the municipal court judge. The municipality could not be liable for the actions of the municipal court judge because it had no control over his decisions and actions. K.D. v. Bozarth, 313 N.J. Super. 561, 571 (App. Div.), certif. denied, 156 N.J. 425 (1998).

Further, to the extent that plaintiff's claims against the Township are for a failure to protect her against alleged threats from others or intrusions into her home, N.J.S.A. 59:5-4 affords immunity to the Township. The trial court correctly granted summary judgment to the Township and its Police Department.

III

A

We turn now to the claims plaintiff has asserted against various police officers of the Township, including those which relate to the conduct of Patrolman Carpenter and Sergeant Vitanza, the two officers involved in removing her from her vehicle in November of 2005 when she would not comply with a directive to step out of it. This, she asserts, violated her constitutional rights. We note that this claim is not, as the trial court indicated, barred by the statute of limitations. The incident occurred on November 19, 2005, and plaintiff filed her complaint on November 16, 2007, just meeting the two-year filing deadline. The record, however, as the trial court stated, does not support her contention of police brutality and mistreatment. The trial court correctly granted these defendants summary judgment on plaintiff's claim that the officers were liable to her under tort principles and under 42 U.S.C.A. § 1983.

She also alleges that they are liable to her for false imprisonment. Plaintiff was arrested for driving while intoxicated, an offense for which she was subsequently convicted. There is no merit to her claim of false imprisonment. R. 2:11-3(e)(2).

Plaintiff also asserts that the two officers "unlawfully entered" her vehicle and that other, unnamed individuals unlawfully entered her home. These officers entered her car in the course of removing her when she did not comply with the command to step out. They are entitled to immunity for their actions under N.J.S.A. 59:3-9.

There is nothing in this record to identify the individuals who allegedly entered plaintiff's home and disturbed it. Absent any evidential link to these officers (or to the remaining individual defendants), defendants were entitled to summary judgment.

To the extent that plaintiff contends that the officers' actions may have constituted a violation of various sections of our criminal code, such claims would not give rise to a private right of action. Nor did plaintiff establish a cause of action under the Crime Victim's Bill of Rights; she did not submit admissible proof of a "personal, physical or psychological injury . . . as a result of a crime." N.J.S.A. 52:4B-37.

B

According to plaintiff, defendant Grawehr prepared a false police report regarding her initial visit to the Hanover police station on October 30, 2005, to file a complaint against her former boyfriend. Plaintiff maintains that Grawehr did not interview her, although he signed a report stating that he did so; she also maintains that the report itself is inconsistent and omitted pertinent information. She further alleges that defendant Zvolensky was involved in interviewing her that evening. She maintains that he treated her rudely and subsequently filed a false report. We agree with the trial court that these actions, if true, do not support a private cause of action for damages. Rather, they would be potential grounds for a disciplinary matter for the internal affairs unit of the Department to pursue and investigate. In addition, these claims are also barred by the two-year statute of limitations.

C

Plaintiff's claim against defendant Kaiser relates to two incidents she says occurred in January 2006 when she was in a bar in Whippany. She says she was approached by defendant Kaiser and another individual, Sykes, who began to make taunting remarks, reducing her to tears. Kaiser did not intervene. Contrary to plaintiff's contentions, his failure to act does not subject him to civil liability. N.J.S.A. 59:5-4.

Finally, nothing within plaintiff's papers would support a claim against defendant Collora.

The order under review is affirmed.



[1] Our review of this matter has been hampered by the fact that the parties have utilized different captions at different times. Defendants' papers, for example, list "Detective Siino" as a defendant, while we can find no reference to him in the papers plaintiff has submitted to us. Plaintiff's papers include Dispatcher Collora and Sergeant Zvolensky as defendants, while defendants' do not. Certain of plaintiff's papers, but not all, include Hanover's Violations Bureau as a defendant.

[2] The cited footnote does not appear in the Lawyers' Edition.

[3] To the extent that plaintiff also named as a defendant the Township's Violations Bureau, that is not a separate legal entity against which suit may be brought.

Counties Designated Communications Data Warrant Judges

SUPREME COURT OF NEW JERSEY

It is ORDERED that, effective October 4, 2010 and until further order, the following Superior Court judges are designated as “Communications Data Warrant Judges” to receive applications for and issue communications data warrants and communications information orders. Communications data warrants are required to obtain telephone toll billing records, installation of pen registers (mechanical devices that record the number dialed on a telephone), warrants requiring the provider of an electronic communications service to disclose the contents of an electronic communication (electronic communications disclosure warrants), or an in-progress trace or a trap-and-trace device. Communications information orders are required to obtain disclosure of a record, other than toll billing, or other information pertaining to a subscriber or a customer of a wire or electronic communications service or remote computing service.

Counties Designated Communications Data Warrant Judges

Atlantic, Cape May Judge Michael A. Donio

Judge Bernard E. DeLury, Jr.

Bergen Judge Peter E. Doyne

Judge Liliana DeAvila-Silebi

Burlington Judge Ronald E. Bookbinder

Judge Jeanne T. Covert

Judge Michael J. Haas

Camden Judge Samuel D. Natal

Judge Irvin J. Snyder

Cumberland, Gloucester, Salem Judge Walter L. Marshall, Jr.

Essex Judge Peter J. Vazquez

Judge Joseph C. Cassini, III

Judge Michael A. Petrolle

Hudson Judge Maurice J. Gallipoli

Judge Kevin G. Callahan

Mercer Judge Linda R. Feinberg

Judge Pedro J. Jimenez, Jr.

Middlesex Judge Travis L. Francis

Judge Bradley J. Ferencz 2

Monmouth Judge Lawrence M. Lawson

Judge Anthony J. Mellaci, Jr.

Morris, Sussex Judge Thomas V. Manahan

Judge David H. Ironson

Judge N. Peter Conforti

Ocean Judge Francis R. Hodgson, Jr.

Passaic Judge Donald J. Volkert, Jr.

Judge Marilyn C. Clark

Judge Greta Gooden Brown

Somerset, Hunterdon, Warren Judge Yolanda Ciccone

Judge Edward M. Coleman

Union Judge Joseph P. Donohue

Judge Scott J. Moynihan

It is FURTHER ORDERED that these designated Communications Data Warrant Judges shall each have statewide jurisdiction; and

It is FURTHER ORDERED that applications for communications data warrants or communications information orders must state whether the application has previously been presented to another communications data warrant judge; and

It is FURTHER ORDERED that in receiving applications and issuing communications data warrants or communications information orders, the designated Communications Data Warrant Judges shall comply with any and all directives of the Chief Justice and/or the Administrative Director of the Courts in this regard; and

It is FURTHER ORDERED that this Order shall supersede all prior orders designating judges to receive applications and issue warrants for telephone toll billing records, orders for the installation of pen registers (mechanical devices that record the number dialed on a telephone), or electronic communications data warrants, including the Order dated August 26, 2010 which had an effective date of September 1, 2010.

/s/ Stuart Rabner

Chief Justice

Dated: September 27, 2010

Officer could use MDT for random plate look up State v. COVIELLO,

Officer could use MDT for random plate look up State v. COVIELLO,

Before Judges Carchman and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-035.

APPELLATE DIVISION

DOCKET NO. A-3904-09T1

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

PER CURIAM

Following the Law Division's granting of defendant Annette Coviello's motion to suppress a motor vehicle stop reversing the decision of the Boonton Municipal Court, we granted the State's motion for leave to appeal. We reverse and remand to the Law Division for the restatement of defendant's plea of guilty[1] to driving while intoxicated, N.J.S.A. 39:4-50, and with refusal to submit to a breath test, N.J.S.A. 39:4-50.2.

These are the facts, which are not in significant dispute. On May 3, 2009, at approximately 3:00 a.m., Sergeant Richard Vnencak, a thirteen-year veteran of the Boonton Police Department, was on routine patrol in a police cruiser at the intersection of Spruce and Boonton Avenue. As he made a right hand turn onto Boonton Avenue, he observed defendant's vehicle, a 2007 Jeep wagon, drive past him. During a random plate lookup on his Mobile Data Terminal (MDT) with his Info Cop, defendant's vehicle returned a "hit" for an open warrant on the vehicle's owner. "Info Cop" is a database permitting access to the records of the New Jersey Division of Motor Vehicles (DMV).

As it was dark, Vnencak was not able to identify the vehicle's occupants. Relying on the "hit," Vnencak activated his overhead lights and stopped defendant's motor vehicle. He approached the vehicle and identified the driver as the registered owner of the vehicle. Defendant matched the person identified on the open warrant. When speaking to defendant, Vnencak detected an odor of alcoholic beverage on defendant's breath. He then asked her to exit her vehicle to perform field sobriety tests. Following the test and further questions, defendant was arrested for driving while intoxicated and for refusal to submit to a breath test. Defendant challenged the propriety of the stop. While unsuccessful in the municipal court, at the Law Division, the judge concluded that the stop was unlawful and remanded the case to the municipal court. We granted the State's motion for leave to appeal.

On appeal, the State asserts that the stop was lawful. Specifically, the State asserts that its use of the MDT system was appropriate, and the "hit" received on the system formed the requisite reasonable, articulable suspicion for a motor vehicle stop.

The police may both follow a car without any prior suspicion of wrongdoing, State v. Hughes, 296 N.J. Super. 291, 296 (App. Div. 1997), certif. denied, 149 N.J. 410 (1997), as well as secure a computer check on a license plate without any prior suspicion. State v. Pitcher, 379 N.J. Super. 308, 314-15 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). Record checks are permissible even when conducted randomly without any prior reasonable suspicion of a violation of the motor vehicle laws. State v. Segars, 172 N.J. 481, 491-92 (2002).

The constitutional standard is satisfied by "balancing the need for the stop against the invasion it entails." Pitcher, supra, 379 N.J. Super. at 314. Police may stop a vehicle when the DMV database shows that the owner's license is suspended. State v. Donis, 157 N.J. 44, 58 (1998). A "hit" obtained on a mobile computer linked to the DMV database meets this standard. Id.

In Donis, the New Jersey Supreme Court held that to balance the need to protect law enforcement officers in the fulfillment of their duties with the privacy of motorists, MDTs should be programmed to provide for a two-step process.

In the first step, the initial random license plate look-up would display information regarding only the registration status of the vehicle, the license status of the registered owner, and whether the vehicle has been reported stolen. The registered owner's personal information would not be displayed. If the original inquiry disclosed a basis for further police action, then the police officer would proceed to the second step, which would allow access to the "personal information" of the registered owner, including name, address, social security number, and if available, criminal record.

[(Donis, supra, 157 N.J. at 55).]

Defendant makes two arguments. Defendant suggests that a warrant is "personal information," which should not be revealed until step two, and an officer should not have access to this information unless step one reveals something improper about the vehicle. Defendant asserts that it was improper for Officer Vnencak's MDT to produce an initial "hit" for a warrant.

This interpretation is without merit. Donis prevents an officer from obtaining a vehicle owner's personal information unless the officer reasonably suspects wrongdoing. The privacy considerations underlying Donis are not threatened here. An outstanding warrant for the registered owner of a car is precisely the type of information without more that warrants further police action.

Defendant relies on our decision in State v. Parks, 288 N.J. Super. 407 (App. Div. 1996). In Parks, we held that for an officer to stop a vehicle, more information is needed than a report from the MDT that the vehicle's owner does not have a valid license. Rather, the officer must have additional evidence of defendant's identity as the driver of the vehicle at that particular time. Defendant argues that Officer Vnencak lacked any articulable reason as to support the stop because he did not compare the physical characteristics of the driver revealed by the MDT to those of the driver prior to stopping the vehicle.

We reject defendant's reliance on Parks. The record is devoid of any evidence of information ascertained by the Sergeant after receiving the "hit" on defendant's vehicle. However, we deem the lack of such information to be without moment.

The stop took place at 3:00 a.m. during the middle of the night. It would be unlikely that the officer could identify the driver as the owner of the vehicle absent a stop. Common sense requires that a "hit" is sufficient to permit the officer to stop the vehicle, especially where the attendant circumstances preclude any meaningful identification.

We find that Sergeant Vnencak had sufficient reasonable suspicion to believe that the owner was the driver or that a stop would lead to the owner's whereabouts so as to permit execution of the warrant. See Donis, supra, 157 N.J. at 56.

We reverse the order suppressing the stop. The matter is remanded to the Law Division for appropriate action consistent with this opinion. We do not retain jurisdiction.



[1] Defendant had previously entered a conditional plea following the denial of her motion to suppress in the municipal court.

Officer could use MDT for probable cause STATE v TIRADO,

Officer could use MDT for probable cause

STATE v TIRADO,

Defendant-Appellant.

August 16, 2010


Submitted February 24, 2010 - Decided

Before Judges Graves and J.N. Harris.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Municipal Appeal

No. 4759.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1838-08T4

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Defendant Elina Tirado appeals from her conviction for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, following a trial de novo in the Law Division.[1] After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm.

On May 26, 2006, Butler Police Officer Keith Soules responded to a motor vehicle accident on State Highway Route 23 South at approximately 4:00 p.m. It was a clear day, the roadway was dry, and the speed limit at the location of the accident was fifty miles per hour. Soules testified he observed defendant's "heavily damaged" car positioned "in the center divider . . . with the front wheel missing." He determined the accident actually occurred in a neighboring municipality and advised the dispatcher to notify the West Milford Police Department of the accident. Soules testified defendant was the sole occupant of the damaged vehicle and there were no other vehicles in the vicinity of the accident. As Soules approached defendant's vehicle, he noticed the engine was still running and defendant was attempting to drive away, but the vehicle was not moving.

Officer Soules testified he told defendant to shut the engine off. However, she failed to do so. Soules then reached through an open window and turned the engine off himself. When Soules asked defendant to produce her driving credentials, she handed him a "stack of . . . P.B.A. cards." The officer did not observe any visible injuries to defendant, and she responded she was not injured when he questioned her.

Soules then asked defendant to exit the vehicle. After she did so, Soules observed "she was having a very hard time standing up," she was "off balance," and "swaying," and she used the vehicle for support. According to Soules, defendant "had a very strong odor of an alcoholic beverage on her breath," "her clothes were just disarranged," and her speech was slurred. Based on his training and experience as a police officer for twelve years and his observations of defendant, Soules concluded she had been driving while intoxicated.

Officer Frank Elia of the West Milford Police Department testified that when he arrived at the location of the accident, he did not observe any conditions in the roadway that could have caused or contributed to the accident. After speaking with defendant, he detected an odor of alcohol on her breath and testified plaintiff "needed to lean against the barrier, then part of her front car for balance." Based on his observations, Elia concluded that defendant was intoxicated and arrested her for DWI. Due to the high volume of traffic on Route 23, Elia decided to transport defendant to police headquarters "to perform field sobriety tests."

Officer Elia's police vehicle was equipped with a video camera, which recorded the events from the time he arrived at the location of the accident until he parked the vehicle at West Milford Police Headquarters and escorted defendant into the building. The video was played in court and admitted into evidence. The video did not record audio. Based on the videotape, there is no dispute that the time between defendant's arrest and her arrival at the police station was approximately seventeen minutes.

At police headquarters, Officer Elia asked defendant to perform a standing balance test and a walking test. The officer demonstrated the standing balance test for defendant, advising her to raise her left foot six inches off the ground and count aloud backwards from thirty while standing with her hands at her sides. Elia testified he asked defendant if she understood him and she responded in the affirmative. He also testified defendant failed to count aloud and placed her foot on the ground three times during the test.

The walking test required defendant to take nine steps in a heel to toe manner, three short steps to turn around, and nine steps backward, while counting every step out loud. Officer Elia testified defendant attempted the test but did not walk in a straight line and placed her hands on the wall to maintain her balance. According to Elia, defendant's inability to successfully perform these tests provided further proof she was intoxicated.

A third officer administered two breathalyzer tests to defendant and testified at length regarding the procedures he followed. The breathalyzer tests revealed a blood alcohol concentration of .30 and .31 percent.

Defendant did not testify, but she presented the testimony of Gilbert Snowden, who was qualified as an expert witness. Snowden criticized the manner in which the field sobriety and breathalyzer tests were administered to defendant.

Following Snowden's testimony, defendant objected to the admissibility of the breathalyzer test results, and both sides were allowed to brief the issue. Defense counsel subsequently objected to the disclosure of the breath test results, which were included in the prosecutor's brief, arguing that the disclosure violated the parties' agreement and unduly prejudiced defendant's right to a fair trial. The court rejected that argument, however, and ruled the breathalyzer test results were admissible.

Based on the breath test results, the municipal court judge found defendant guilty of a per se violation of the DWI statute. In addition, the court found the testimony provided by Officers Soules and Elia was credible and sufficient to establish defendant's guilt beyond a reasonable doubt. The judge sentenced defendant as a third-time offender to serve 180 days in the Passaic County Jail, and to forfeit her driving privileges for ten years. The court allowed defendant to spend ninety days of her jail sentence at an inpatient rehabilitation center approved by the Intoxicated Driver Resource Center and imposed all mandatory fines, fees, assessments, and penalties.

Defendant's de novo appeal to the Law Division was argued on October 24, 2008, and decided on November 12, 2008. In a written decision, the Law Division detailed its reasons for rejecting defendant's claims that: (1) the police did not have probable cause to arrest her for DWI; (2) the breathalyzer test results were unreliable and inadmissible; (3) the trial court's findings were tainted because the municipal prosecutor advised the court of the breathalyzer readings prior to the court's determination that the breath test results were admissible; and (4) the proofs were insufficient to convict because there were other possible explanations for the observations made by Officers Soules and Elia. The Law Division found defendant guilty of violating N.J.S.A. 39:40-50 and imposed the same penalties as the municipal court.

On appeal to this court, defendant presents the following arguments:

POINT I

THE POLICE LACKED PROBABLE CAUSE TO ARREST MS. TIRADO FOR DRIVING WHILE INTOXICATED.

POINT II

BECAUSE THE BREATHALYZER OPERATOR FAILED TO OBSERVE THE DEFENDANT FOR 20 MINUTES PRIOR TO THE BREATH TEST, THE BREATHALYZER READINGS MUST BE EXCLUDED.

POINT III

THE PROSECUTOR INTENTIONALLY ENGAGED IN MISCONDUCT BY SUPPLYING THE BREATHALYZER READINGS TO THE COURT DURING THE MOTION TO SUPPRESS TAINTING THE TRIER OF FACT CONSTITUTING REVERSIBLE ERROR.

POINT IV

THE BREATHALYZER OPERATOR FAILED TO PROPERLY ADMINISTER THE BREATHALYZER AND AS A RESULT, THE READINGS MUST BE EXCLUDED.

POINT V

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS INTOXICATED.

We conclude from our examination of the record that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm the order of November 12, 2008, substantially for the reasons stated by Judge Philip H. Mizzone, Jr., in his written decision, with only the following comments.

In determining whether a driver is under the influence of alcohol, field sobriety tests and breath tests are not always required. Even without such tests, "observational evidence" can be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI." State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff’d, 293 N.J. Super. 535 (App. Div. 1996). For example, in State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993), we found that the evidence of intoxication, including defendant's slurred speech, loud and abusive behavior, bloodshot eyes, and disheveled appearance, together with the strong odor of alcohol, was sufficient to sustain a DWI conviction. Similarly, there was strong observational evidence to support defendant's DWI conviction, and that evidence was corroborated by defendant's inability to properly perform the balance tests and by the breathalyzer test results.

Appeals from municipal court convictions are heard first in the Law Division. The review is de novo on the record. R. 3:23-8(a). Upon further appeal to this court, the issue is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). In the present matter, we conclude from our review of the record that Judge Mizzone properly applied well-settled legal principles and his findings are supported by sufficient credible evidence. Moreover, defendant has failed to establish an "obvious and exceptional" error. See 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.").

Affirmed.



[1] Defendant was also issued a summons for failing to maintain the right-hand lane in violation of N.J.S.A. 39:4-88(a), but the municipal court acquitted her of that charge.