State of New Jersey v. Leia Tyger ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0668-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEIA TYGER,
Defendant-Appellant.
Submitted October 23, 2024 - Decided November 18, 2024
Before Judges DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Municipal Appeal No. 23-05.
The Hernandez Law Firm, PC, attorney for appellant
(Steven W. Hernandez, of counsel and on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella, Chief
Appellate attorney, of counsel; Cheryl L. Hammel,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Leia Tyger appeals from the August 31, 2023 order of the Law
Division: (1) denying her motion to suppress evidence; and (2) convicting her
after a trial de novo of driving while intoxicated (DWI), N.J.S.A. 39:4 -50, her
second such offense, and reckless driving, N.J.S.A. 39:4-96. We affirm.
I.
The following summarizes the testimony adduced at trial in the municipal
court. In the early morning hours of August 20, 2022, Stafford Township
patrolman Jackson Bush was on routine patrol in a marked police vehicle. He
observed a car on East Bay Avenue stopped at a stop sign for a prolonged time.
Bush followed the car, remaining directly behind it as it proceeded west. The
officer observed the driver fail to maintain the lane of travel by drifting over the
line on the right side of the road several times. After the car made a right turn,
Bush initiated a motor vehicle stop.
Bush approached the car on the passenger side. Through the open
passenger side window, he saw defendant in the driver's seat, a passenger in the
front seat, and another passenger in the back seat. The officer smelled alcohol
emanating from the passenger compartment but could not identify which of the
occupants was its source. He observed defendant's eyes to be bloodshot.
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Defendant told the officer she had just finished working at a restaurant on
nearby Long Beach Island. She denied having consumed alcohol that night. The
passenger, however, stated she had been drinking alcohol. At Bush's request,
defendant produced her driving credentials with no difficulty.
Bush, who was trained in the detection of alcohol use in drivers and
administration of field sobriety tests, directed defendant to exit the vehicle. She
complied with no noticeable physical difficulty. The officer conducted a
horizontal gaze nystagmus (HGN) test on defendant. After administration of the
test, defendant admitted she had one alcoholic cocktail at a local bar. Defendant
later stated the reason she drifted over the line was she was texting while driving.
Based on his observations and the HGN test results, the officer determined
he had reasonable suspicion defendant was impaired by alcohol. As a result, he
administered field sobriety tests to defendant. The officer explained the walk
and turn test required defendant to take nine heel-to-toe steps in a straight line
with her hands at her side, turn around, and repeat the nine steps in the
opposition direction. He demonstrated how to perform the test. Defendant
appeared to listen to the officer's instructions but swayed slightly while standing.
As defendant performed the test, the officer observed indicators of impairment:
defendant did not touch heel to toe on three steps and stopped to steady herself.
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The officer also administered the one-leg stand test. He instructed
defendant to stand with her hands at her side, lift one foot six inches from the
ground, and maintain that position while she counted aloud. Bush demonstrated
how to perform the test. The officer observed indicators of impairment when
defendant performed the test: defendant put her foot down three times and had
to steady herself.
A second Stafford Township patrolman, Russell Okinsky, arrived on
scene. Bush asked Okinsky to administer a second HGN test because Bush's
overhead emergency lights were activated during the first test, which could
cause involuntary eye movement. The results of the test Okinsky administered
confirmed the results of the HGN test Bush administered.
Based on defendant's admission to consuming alcohol, the officer's
observations, and the results of the field sobriety tests, Bush arrested defendant
and placed her in the rear of the patrol car. While in the patrol car defendant
stated that she was "fucked" and was going to lose her job and custody of her
children. She also squirmed around and appeared to attempt to free her hands
from her handcuffs. Ultimately, Bush issued summonses to defendant for DWI,
reckless driving, and failure to maintain lane, N.J.S.A. 39:4-88.
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The municipal court admitted into evidence video and audio recordings
from Bush's body worn camera, his patrol car's dashboard camera, and the
camera facing defendant in the rear seat of the patrol car.
At the conclusion of the municipal court trial, defendant moved to
suppress all evidence after Bush asked defendant to perform the HGN test.
Defendant conceded the dashboard camera recording depicted her drifting over
the line on the right side of the lane of travel. Thus, defendant admitted Bush
had reasonable and articulable suspicion to conduct a motor vehicle stop.
However, she argued that after the traffic stop, Bush did not have reasonable,
articulable suspicion to conduct a DWI investigation or ask her to perform field
sobriety tests.
Defendant argued that prior to administering the HGN test, the officer did
not detect defendant had any difficulty answering questions or retrieving her
driving credentials. Defendant noted Bush did not testify he detected the odor
of alcohol on her once he isolated defendant from the passengers. Defendant
also argued that she did not admit to coming from a bar or consuming alcohol
until after Bush administered the HGN test. Finally, defendant argued she
offered a reasonable explanation, texting while driving, for drifting out of the
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lane of travel. Thus, defendant argued Bush did not have any reason to suspect
alcohol impairment prior to his administering the HGN test.
On March 10, 2023, the municipal court denied defendant's motion. The
court found the officer's observations of the demeanor of defendant and the
passengers, the smell of alcohol from the passenger compartment, the
passenger's admission to alcohol consumption, and defendant's failure to
maintain the travel lane were sufficient to constitute reasonable articulable
suspicion that defendant was impaired prior to administration of the HGN test.
Also on March 10, 2023, the municipal court issued an oral opinion
finding defendant guilty of the charged offenses. The court found Bush to have
been a credible witness. With respect to the moving violations, the court found
defendant drifted out of her lane of travel and crossed the line on the right side
of the road "at least four times." This finding was based on Bush's testimony
and the court's review of the dashboard recording. As a result, the court found
defendant was guilty of failing to maintain the lane of travel.
With respect to the DWI charge, the court found Bush's testimony
describing his observations and conversation with defendant credible. The court
also found defendant's poor performance on the field sobriety tests was
indicative of impairment. The court found there were "three missed steps" that
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were not heel-to-toe during the walk test. Turning to the one-leg stand test, the
court found defendant's balance was off on counts six and thirteen and her count
went from "nineteen one-thousand" to "ten one-thousand," when she should
have said "twenty one-thousand." 1 The court also found defendant's description
of her activities prior to the motor vehicle stop changed from denying
consumption of alcohol to admitting she had one alcoholic cocktail. The court
also found defendant engaged in uncommon behavior in the back seat of the
patrol car by "oscillating in an odd manner" and "mumbling" while "speaking to
herself" and effectively "appear[ed] to be wrestling to get [her] hands free, to
move around."
Based on its findings, the court concluded defendant was operating her
car while under the influence of alcohol. The court also found the act of driving
while under the influence of alcohol was reckless. Thus, the court convicted
defendant of reckless driving.
The court merged the reckless driving conviction into the DWI conviction.
Given this was defendant's second DWI conviction, the court imposed a driver's
license suspension of one year, along with forty-eight hours in the Intoxicated
1
Bush testified that errors in counting are not established indicators of
impairment in the one-leg stand test.
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Driver Resource Center (IDRC), thirty days of community service, and
installation of an ignition interlock device for the period of license suspension,
plus two years thereafter. For defendant's failure to maintain the lane of travel,
the court imposed statutory fines and court costs. The court also imposed court
costs for the reckless driving conviction.
The municipal court stayed all aspects of the sentence, except the license
suspension and the ignition interlock device requirement, pending defendant's
anticipated appeal to the Law Division.
Defendant appealed her convictions of DWI and reckless driving to the
Law Division. On March 17, 2023, the Law Division judge stayed defendant's
license suspension pending her trial de novo in the Superior Court. State v.
Robertson, 228 N.J. 138, 149-50 (2017). The Law Division declined to stay the
ignition interlock device requirement.
On August 31, 2023, the Law Division judge issued an oral opinion
denying defendant's motion to suppress, and convicting her of DWI and reckless
driving. With respect to the motion to suppress the court found:
the defendant was stopped in the middle of a summer
night and at early hours in the morning at
approximately 12:20 a.m. coming from a restaurant in
a shore town. Upon approaching the motor vehicle[,]
the officer smelled an odor of alcohol emanating from
inside the car. This court is not aware of any case that
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requires the officer to determine that the smell of
alcohol emanates specifically from the defendant prior
to asking the defendant to exit the vehicle. A passenger
in the car admitted having been drinking that night.
And this lends itself to the rational inference that the
establishment from which the car departed . . . served
alcohol.
While the defendant . . . did not admit to having
consumed any alcohol at the point of the motor vehicle
stop, the officer did observe that the defendant had
watery, bloodshot eyes. These facts, coupled with the
officer's observations of the car having a prolonged stop
and weaving within their lane of travel and crossing the
fog line approximately four times prior to the motor
vehicle stop, when considered together in a totality of
circumstances analysis, gives rise to reasonable and
articulable suspicion [that defendant was impaired].
With respect to the DWI charge, the trial court found
[t]he officer's observations coupled with the
defendant's performance on these tests, the odor of
alcohol emanating from the motor vehicle, the
defendant's admission to consumption of alcohol earlier
in the night, the occurrence of the stop in the early
morning hours in the summer at the shore, the motor
vehicle coming from a restaurant where the passenger
admitted that at least the passengers had been drinking,
the crossing onto the fog line multiple times, the
testimony of Officer Bush regarding the defendant's
watery[,] bloodshot eyes, and the defendant stating that
she is F'd is substantial, credible evidence that proves
beyond a reasonable doubt that on August 19, 2022
(sic) that the defendant was in fact operating her motor
vehicle while under the influence of intoxicating liquor.
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Accordingly, this court finds that the defendant is guilty
of [DWI] based upon the observational proofs.
The Law Division judge also found defendant guilty of reckless driving
based on the evidence establishing defendant operated her car with two
passengers after consuming alcohol to the point of exhibiting signs of
intoxication, failed to maintain the lane of travel, and texted while driving. The
court found beyond a reasonable doubt that defendant operated the car in a
reckless manner, endangering herself, her passengers, and the public. An
August 31, 2023 judgment memorializes the convictions.
On September 22, 2023, the Law Division judge imposed the same
sentence for the DWI conviction as imposed by the municipal court. The Law
Division judge imposed court costs for the reckless driving conviction, which
was merged into the DWI conviction. On September 22, 2023, the Law Division
judge stayed the suspension of defendant's license pending appeal, subject to
several conditions.
This appeal follows. Defendant raises the following arguments:
POINT I
GIVEN THE LACK OF EXTRA REASONABLE
SUSPICION TO PERFORM FIELD SOBRIETY
TESTS AT THE SCENE PURSUANT TO STATE V.
BERNOKEITS, THIS COURT SHOULD REVERSE
THE LAW DIVISION AND SUPPRESS ALL
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SUBSEQUENT EVIDENCE OBSERVED AS FRUIT
OF THE POISONOUS TREE. THUS, DEFENDANT
SHOULD BE ACQUITTED OF THE DWI AND
RECKLESS DRIVING CHARGES.
POINT II
THE SUBSTANTIAL CREDIBLE EVIDENCE ON
THE RECORD DEMONSTRATES REASONABLE
DOUBT AS TO THE INTOXICATION ELEMENT OF
DWI. THUS, DEFENDANT'S DWI CONVICTION
SHOULD BE REVERSED AND SHE MUST BE
ACQUITTED OF DWI AND RECKLESS DRIVING.
POINT III
THE LAW DIVISION ERRED IN FINDING
DEFENDANT GUILTY OF RECKLESS DRIVING
BEYOND A REASONABLE DOUBT.
II.
A. Motion to Suppress.
Our review of the denial of a suppression motion is limited. State v.
Handy, 206 N.J. 39, 44 (2011). We review a motion judge's factual findings in
a suppression hearing with great deference. State v. Gonzales, 227 N.J. 77, 101
(2016). We "must uphold the factual findings underlying the trial court's
decision so long as those findings are supported by sufficient credible evidence
in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders,
192 N.J. 224, 243 (2007)). We defer "to those findings of the trial judge which
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are substantially influenced by [the] opportunity to hear and see the witnesses
and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders,
192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We owe no
deference, however, to the trial court's legal conclusions or interpretation of the
legal consequences that flow from established facts. Our review in that regard
is de novo. State v. Watts, 223 N.J. 503, 516 (2015).
As a threshold matter, a police officer is justified in stopping a vehicle
where they suspect the driver committed a motor vehicle violation. State v.
Locurto, 157 N.J. 463, 470 (1999) (citing State v. Smith, 306 N.J. Super. 370,
380 (App. Div. 1997)). Thereafter, an officer may require a driver to exit the
vehicle upon such a traffic stop. Pennsylvania v. Mimms, 434 U.S. 106, 111
(1977). "If, during the course of the stop or as a result of the reasonable inquiries
initiated by the officer, the circumstances give rise to" reasonable, articulable
suspicion that the motorist is involved in criminal or unlaw activity, the officer
may broaden the inquiry of the detention. State v. Bernokeits, 423 N.J. Super.
365, 371 (App. Div. 2011) (quoting State v. Dickey, 152 N.J. 468, 479-80
(1998)) (internal quotations omitted).
To determine whether reasonable suspicion existed, a judge must consider
the totality of the circumstances, viewing the "whole picture" rather than taking
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each fact in isolation. State v. Nelson, 237 N.J. 540, 554-55 (2019) (quoting
State v. Stovall, 170 N.J. 346, 361 (2002)).
A [judge] must first consider the officer's objective
observations. The evidence collected by the officer is
"seen and weighed not in terms of library analysis by
scholars, but as understood by those versed in the field
of law enforcement." "[A] trained police officer draws
inferences and makes deductions . . . that might well
elude an untrained person. The process does not deal
with hard certainties, but with probabilities." Second,
a [judge] must determine whether the evidence "raise[s]
a suspicion that the particular individual being stopped
is engaged in wrongdoing."
[State v. Davis, 104 N.J. 490, 501 (1986) (quoting
United States v. Cortez, 449 U.S. 411, 418 (1981))
(alterations in original).]
Courts give weight to "the officer's knowledge and experience" as well as
"rational inferences that could be drawn from the facts objectively and
reasonably viewed in light of the officer's expertise." State v. Citarella, 154 N.J.
272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).
We have carefully reviewed the record, including the video and audio
recordings, and find no basis on which to reverse the Law Division judge's denial
of defendant's suppression motion. The Law Division judge provided a
thorough and cogent analysis of the facts and circumstances supporting Bush's
request that defendant perform the field sobriety tests.
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On these facts, we agree that the officer had a reasonable, articulable
suspicion that defendant was operating her car while under the influence of
alcohol prior to administering the HGN test. Although defendant did not admit
to consuming alcohol until Bush administered the first HGN test, her passenger
admitted consuming alcohol, the odor of alcohol emanated from the passenger
compartment, defendant's eyes were bloodshot, and defendant stopped at a stop
sign for an extended period of times and failed to maintain a lane of travel by
drifting over the line several times. We find no support for defendant's argument
that where multiple people occupy a car from which the odor of alcohol is
emanating, an officer must isolate the driver and detect the odor of alcohol on
the driver's breath before administering field sobriety tests. No one factor is
determinative of the reasonable suspicion analysis. Under the totality of the
circumstances here, Bush had reasonable, articulable suspicion that defendant
was impaired prior to administering the HGN test.
B. DWI Conviction.
On appeal from a municipal court to the Law Division, the review of a
conviction is de novo on the record. R. 3:23-8(a)(2). The Law Division judge
must make independent findings of fact and conclusions of law but defers to the
municipal court's credibility findings. Robertson, 228 N.J. at 147.
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We do not, however, independently assess the evidence. Locurto, 157
N.J. at 471. "Our standard of review of a de novo verdict after a municipal court
trial 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. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005)
(internal quotations marks and citation omitted). "[A]ppellate 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).
The rule of deference is more compelling where, as here, the municipal
and Law Division judges made concurrent findings. Locurto, 157 N.J. at 474.
"Under the two-court rule, appellate courts ordinarily should not undertake to
alter concurrent findings of facts and credibility determinations made by two
lower courts absent a very obvious and exceptional showing of error." Ibid.But, "[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., 140 N.J. 366, 378 (1995).
The State may satisfy its burden of proving a DWI charge "through either
of two alternative evidential methods: proof a defendant's physical condition or
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proof of a defendant's blood alcohol level." State v. Howard, 383 N.J. Super.
538, 548 (App. Div. 2006) (quoting State v. Kashi, 360 N.J. Super. 538, 545
(App. Div. 2003), aff'd, 180 N.J. 45 (2004)). Because it lacked proof of
defendant's blood alcohol level, the State relied on Bush's testimony concerning
defendant's appearance after the traffic stop and the results of the field sobriety
tests to satisfy its burden at trial.
A defendant's demeanor, physical appearance, and bloodshot eyes,
together with an odor of alcohol or admission of the consumption of alcohol and
poor performance on field sobriety tests, as well as other factors, may be
sufficient to sustain a DWI conviction. See e.g., State v. Bealor, 187 N.J. 574,
588-89 (2006); accord State v. Federico, 414 N.J. Super. 321, 327 (App. Div.
2010); State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.), aff'd o.b., 293
N.J. Super. 535 (App. Div. 1996).
Here, the record contains substantial, credible evidence on which the Law
Division judge relied for determining beyond a reasonable doubt that defendant
operated her car while under the influence of alcohol. That evidence included
defendant's reckless driving, changing her story with respect to her consumption
of alcohol, admitting to having consumed an alcoholic cocktail before driving
the car, the officer detecting the odor of alcohol from the passenger compartment
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of defendant's car, the time and circumstances of the motor vehicle stop, the
passenger admitting she had been drinking alcohol, the indicia of impairment
reflected in defendant's performance of the field sobriety tests, and defendant's
odd physical movements and statements while in the back of the police car.
C. Reckless Driving Conviction.
Our review of the record reveals sufficient, credible evidence supporting
defendant's conviction of reckless driving. Pursuant to N.J.S.A. 39:4-96, "[a]
person who drives a vehicle heedlessly, in willful or wanton disregard of the
rights or safety of others, in a manner so as to endanger, or be likely to endanger,
a person or property, shall be guilty of reckless driving . . . ." The culpability
level of recklessness embedded in N.J.S.A. 39:4-96 requires a conscious
disregard of risk. See N.J.S.A. 2C:2-2(b)(3). Intoxication alone or in
conjunction with other evidence may satisfy that recklessness element. Ebert,
377 N.J. Super. at 12.
We see no basis on which to reverse defendant's conviction for reckless
driving. The record supports the Law Division judge's conclusion beyond a
reasonable doubt that defendant endangered herself, her passengers, and the
public when she operated her car while under the influence of alcohol,
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repeatedly drifted out of the lane of travel, and texted while driving. Defendant
ignored the risks posed by driving recklessly in her condition.
We have carefully considered defendant's remaining arguments and
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed. The stay entered in the Law Division is hereby vacated.
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