STATE OF NEW JERSEY VS. FEVZI ARIF(6077, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3147-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FEVZI ARIF,
Defendant-Appellant.
_____________________________
Submitted May 9, 2017 – Decided July 31, 2017
Before Judges Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Municipal Appeal
No. 6077.
Levow DWI Law, P.C., attorneys for appellant
(Evan M. Levow, of counsel and on the brief;
Michael V. Troso, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Fevzi Arif appeals his conviction for driving while
intoxicated (DWI), N.J.S.A. 39:4-50, following a trial de novo in
the Law Division. After reviewing the record in light of the
applicable legal standards, we affirm substantially for the
reasons stated by Judge Ronald B. Sokalski in his oral decision
issued on February 9, 2016.
The pertinent evidence was set forth in Judge Sokalski's
decision and need not be repeated in detail here. On May 14,
2008, Wayne Township Police Officer Jay Arnold pulled defendant's
motor vehicle over after observing his vehicle cross over the
double yellow line while approaching Arnold in the opposite
direction, and also while negotiating a turn. Upon reaching
defendant's vehicle, Arnold noticed vomit on the driver's side
door. When he asked for defendant's credentials, he smelled a
strong odor of alcohol and vomit from the interior of defendant's
vehicle and on defendant's breath. Upon Arnold's questioning,
defendant stated that he had two beers approximately an hour and
a half earlier at a local pub. Arnold suspected defendant was
intoxicated and administered a field sobriety test. After
defendant failed the test, he was arrested and taken to police
headquarters where Lieutenant Keith McDermott administered an
Alcotest breathalyzer test. Defendant registered a .10 blood
alcohol concentration (BAC) and was charged with DWI.
After making his first municipal court appearance on May 14,
2008, defendant failed to appear for trial for the next two
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scheduled dates. Trial was eventually conducted on four dates in
2015. Due to the seven-year trial delay, Arnold and McDermott
could not recall the specifics of defendant's arrest and the
breathalyzer test, and primarily testified from the reports they
authored right after defendant was charged. Defendant did not
testify but presented the testimony of two experts who challenged
the reliability of the field sobriety test and the administration
of the breathalyzer test.
On September 4, 2015, the municipal court judge found
defendant guilty of DWI. Specifically, he determined that the
police officers' testimony was credible, and that the record did
not support the defense experts' opinions. Since this was
defendant's third DWI conviction, he was sentenced to enhanced
penalties. N.J.S.A. 39:4-50(a)(3).
Upon a trial de novo on the record, Judge Sokalski found
defendant guilty anew. In his oral decision, the judge found that
the officers' testimony was credible, and there was sufficient
evidence that defendant was guilty of DWI beyond a reasonable
doubt based upon observation and the .10 BAC. As to the officers'
reliance upon their reports in testifying, the judge concluded
that:
It was difficult for them to recall . . . this
routine matter after nearly seven years
between arrest and trial, and their testimony
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was given to a large extent pursuant to
Evidence Rule 406, which is habit, routine and
practice. And [N.J.R.E.] 803 (c)(5) record
and recollection. Nevertheless[,] their
testimony was truthful and detailed enough to
be convincing. It is noted that the delay for
trial [was] attributed to defendant's failure
to appear.
The judge found that the defense experts' opinions on the
administration and validity of the breathalyzer test was
speculative and not supported by the record.
On this appeal, defendant presents the following points of
argument:
POINT I
THE STATE FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT DEFENDANT-APPELLANT OPERATED A
MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL.
POINT II
THE STATE FAILED TO DISPLAY THAT THE ALCOTEST
WAS ADMINISTERED PROPERLY OR THAT THE MACHINE
WAS FUNCTIONING PROPERLY THEREFORE THE PER SE
OFFENSE MUST BE DISMISSED.
Our review of the trial court's factual findings is limited
to whether the conclusions of the Law Division judge "could
reasonably have been reached on sufficient credible evidence
present in the record." State v. Johnson, 42 N.J. 146, 162 (1964).
Unlike the Law Division, we do not independently assess the
evidence. State v. Locurto, 157 N.J. 463, 471 (1999). The rule
of deference is more compelling where, such as here, the municipal
and Law Division judges made concurrent findings. Id. at 474.
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"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. (citing Midler v. Heinowitz,
10 N.J. 123, 128-29 (1952)). We owe no deference to the trial
judge's legal conclusions. Manalapan Realty, L.P. v. Manalapan
Twp. Comm., 140 N.J. 366, 378 (1995) (citing State v. Brown, 118
N.J. 595, 604 (1990)).
Based upon these principles and our review of the record, we
affirm substantially for the reasons stated in Judge Sokalski's
oral decision. Defendant's appellate arguments are without
sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
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