STATE OF NEW JERSEY v. VLADIMIR YAKOVLEV (2010)

Defendant, Vladimir Yakovlev, appeals ¹ from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a).   Defendant was sentenced to a $306 fine, $33 court costs, $50 Violent Crime Compensation Board penalty, $200 DWI surcharge, $75 Safe Neighborhood Assessment, twelve hours attendance at the Intoxicated Driver Resource Center and a seven-month driver's license suspension.

On the night of October 18, 2006, while driving in Wayne Township, defendant, who was alone in his car, struck a telephone pole with his vehicle.   As he stood outside of the car observing the damage, a police officer on patrol happened by.   The officer noted a strong odor of alcoholic beverage emanating from defendant, and observed that defendant had bloodshot and watery eyes, his speech was delayed and slurred, and he was using his car for balance.   Defendant acknowledged that he had consumed alcohol that evening.   He could not explain why his car was damaged, stating he believed he hit a pothole.   The officer observed significant damage to the passenger side of defendant's vehicle and saw that a large piece of the telephone pole had splintered off as a result of the collision and was attached to defendant's vehicle.

Based upon these observations, the officer subjected defendant to a series of roadside sobriety tests.   Defendant's performance was unsatisfactory.   The officer placed defendant under arrest for DWI. Defendant then complained of discomfort because of a kidney stone problem.   Accordingly, he was transported to a nearby hospital for evaluation.   At the hospital, a blood sample was drawn.   Analysis of the sample revealed a 0.15% Blood Alcohol Content (BAC).

Based upon this evidence, the municipal court judge, after first denying defendant's motion to suppress evidence of his arrest and of the field sobriety tests, found defendant guilty of DWI based both upon physical observations and as a per se offense.

Defendant appealed to the Law Division.   Based upon his review of the municipal court record, and after hearing oral argument, Judge Caposela issued a written opinion on April 11, 2008.   He found sufficient evidence to establish probable cause for defendant's arrest.   He also found that the blood test results were properly admitted in evidence and were medically accurate.   Finally, he found that the evidence was sufficient to prove beyond a reasonable doubt that defendant was guilty of DWI “based upon the arresting police officer's numerous field observations of intoxication as well as the Defendant-Petitioner's per se violation of the DWI statute provided by his blood alcohol concentration of 0.15%.” The judge accordingly found defendant guilty and imposed the sentence we have previously mentioned, which was the same sentence that had been imposed by the municipal court judge.

On appeal to this court, defendant argues:

POINT I

DECISION OF THE LOWER COURTS SHOULD BE REVERSED OR REMANDED TO THE ORIGINAL LOWER COURT FOR ANOTHER TRIAL, BECAUSE THE STATE DID NOT PROVE BY COMPETENT AND SUFFICIENT EVIDENCE THAT THE DEFENDANT WAS UNDER THE INFLUENCE BEYOND A REASONABLE DOUBT, AS REQUIRED IN CRIMINAL PROCEEDINGS UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION.

POINT II

DECISION SHOULD BE REVERSED BECAUSE THE ARRESTING OFFICER HAD NO PROBABLE CAUSE TO ARREST DEFENDANT IN THE FIRST PLACE.

POINT III

DECISION SHOULD BE REVERSED OR REMANDED TO THE ORIGINAL LOWER COURT BECAUSE THE COUNTY APPEAL DID NOT RECEIVE PROPER CONSIDERATION BY THE COURT.

POINT IV

DECISION SHOULD BE REMANDED TO THE LOWER COURT FOR A NEW TRIAL BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT APPELLATE TRIAL.

These arguments lack sufficient merit to warrant discussion in a written opinion.   R. 2:11-3(e)(2).   We affirm substantially for the reasons expressed by Judge Caposela in his written opinion of April 11, 2008.   We offer the following brief comments.

The scope of appellate review of a de novo conviction by the Law Division following a municipal court appeal is “exceedingly narrow.”  State v. Locurto, 157 N.J. 463, 470 (1999).   In Locurto, the Court reiterated the limited standard of appellate review as previously enunciated in the seminal case of State v. Johnson, 42 N.J. 146, 161-62 (1964).  Lucurto, supra, 157 N.J. at 470-71.   That standard applies to the trial court's determination of facts, “whether underlying or ultimate.”  Id. at 470 (quoting Johnson, supra, 42 N.J. at 161).

Our jurisprudence has made clear that the phrase “under the influence of intoxicating liquor” in the DWI context prescribes “a general condition, short of intoxication,” as a result of which the driver of a motor vehicle is “said to be so affected in judgment or control as to make it improper for him [or her] to drive on the highways.”  Johnson, supra, 42 N.J. at 165.   The phrase embraces not only

the well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors and which tends to deprive him [or her] of that clearness of intellect and control of himself [or herself] which he [or she] would otherwise possess.

[Ibid. (quoting State v. Rodgers, 91 N.J.L. 212, 215 (E. & A.1917)).]

That standard was easily met by the evidence in this case, thus supporting the non-per se basis for conviction.   And, of course, the 0.15% BAC substantiated the per se basis for the conviction.

Affirmed.²

FOOTNOTES

FN1. We note that although the notice of appeal was filed with this court on May 22, 2008, all of the transcripts from the municipal court and Law Division were not filed with this court until February 2, 2009, at which time appellant's brief was filed.   The prosecutor's brief was not filed until December 18, 2009..  FN1. We note that although the notice of appeal was filed with this court on May 22, 2008, all of the transcripts from the municipal court and Law Division were not filed with this court until February 2, 2009, at which time appellant's brief was filed.   The prosecutor's brief was not filed until December 18, 2009.

FN2. The municipal court stayed defendant's sentence pending appeal to the Law Division.   The Law Division judgment is silent as to whether the stay was vacated or further continued pending appeal to this court.   In his notice of appeal, defendant answered “Yes” to the question “Was bail granted or the sentence disposition stayed?”   If the sentence has been stayed pending disposition of this appeal, the stay is now vacated..  FN2. The municipal court stayed defendant's sentence pending appeal to the Law Division.   The Law Division judgment is silent as to whether the stay was vacated or further continued pending appeal to this court.   In his notice of appeal, defendant answered “Yes” to the question “Was bail granted or the sentence disposition stayed?”   If the sentence has been stayed pending disposition of this appeal, the stay is now vacated.

PER CURIAM