STATE OF NEW JERSEY VS. AMY BLOODWORTHÂ Â (6076, 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NOT FOR PUBLICATION WITHOUT THE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-2570-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AMY BLOODWORTH,
Defendant-Appellant.
________________________________
Argued October 4, 2017 – Decided November 3, 2017
Before Judges Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Municipal Appeal
No. 6076.
Nabil N. Kassem argued the cause for appellant
(Kassem & Associates, PC, attorneys; Mr.
Kassem and Dominique J. Carroll, on the
brief).
Marc A. Festa, Senior Assistant Prosecutor,
argued the cause for respondent (Camelia M.
Valdes, Passaic County Prosecutor, attorney;
Mr. Festa, of counsel and on the brief).
PER CURIAM
Defendant Amy Bloodworth appeals her conviction, following a
trial de novo, for driving while intoxicated (DWI), N.J.S.A. 39:4-
50, and for refusal to submit a breath test, N.J.S.A. 39:4-50.4a.
Having considered defendant's argument in light of the facts and
applicable law, we affirm.
On February 2, 2015, Officer Glen Arthur and Officer Seabrooks
of the Clifton Police Department were dispatched on a report of a
vehicle stuck in a snowbank with the driver behind the steering
wheel, possibly incapacitated. Prior to the arrival of police,
neighborhood residents reported hearing a loud crash. From their
window, the residents witnessed a 2014 Jeep Grand Cherokee reverse
from one snowbank into another. As the vehicle was lodged into
the snowbank, the driver continued to accelerate, causing the
tires to spin. One resident stated the driver appeared to be
slumped over the steering wheel. He, along with other residents,
proceeded outside to help the distressed driver, later identified
as defendant, and assisted her out of the vehicle.
On arrival, Officer Arthur observed the Jeep lodged in a
snowbank. Defendant was standing approximately four feet beside
the vehicle and was noticeably swaying. Officer Arthur approached
defendant and questioned her about the accident. As defendant
responded she "ha[d] no idea" what happened, a strong odor of
alcohol was detected on her breath. Defendant was then asked if
2 A-2570-15T2
she had been drinking, to which she responded with slurred speech,
"[w]ay too much." The officer reported that defendant was having
difficulty standing and observed a glassy look in her eyes and a
dazed appearance. Moreover, he saw defendant's purse on the
sidewalk that visibly contained a half-empty bottle of alcohol and
medications, and also observed a visibly open container of alcohol
on the vehicle's passenger side floor. Due to the officer's
observations, defendant was asked to perform standard field
sobriety tests. Defendant responded that she was unwilling to
perform the tests without a lawyer present. Subsequently,
defendant was arrested, advised of her Miranda rights, and placed
into the patrol car.
While being transported to police headquarters, defendant was
falling asleep and periodically crying out for her parents. After
being escorted into headquarters with assistance, defendant was
asked to submit a breath sample. She responded by saying "[n]o,"
and shaking her head indicating the same. Defendant was then
processed without further incident and charged with driving while
intoxicated, N.J.S.A. 39:4-50; refusal to submit a breath test,
N.J.S.A. 39:4-50.4a; possession of an open alcoholic beverage in
a motor vehicle, N.J.S.A. 39:4-51b; and failure to display motor
vehicle insurance and registration, N.J.S.A. 39:3-29. A Drunk
Driver Observation Report was prepared which indicated: defendant
3 A-2570-15T2
had a strong odor of an alcoholic beverage; was pale and difficult
to awaken; had watery and bloodshot eyes; had difficulty walking;
and was falling and grasping for support. Defendant pled not
guilty. A municipal trial followed.
At the conclusion of the municipal trial, the judge found
defendant guilty of DWI, refusal to submit to a breath test, and
possession of an open container. The State moved for, and was
granted, dismissal of the remaining charges. This being
defendant's third DWI offense, the judge sentenced her to: 180
days county jail, 90 days of which could be served in an inpatient
program; 10 year loss of driver's license; installation of ignition
interlock device for the loss of license time period with an
additional 3 years thereafter; completion of the required hours
at the Intoxicated Driver Resource Center (IDRC) in accordance
with defendant's individual treatment classification; and ordered
to pay appropriate fines and penalties. As per the refusal charge,
defendant was sentenced to a consecutive duplicate sentence as the
DWI. A fine was imposed on the open container offense.
Defendant filed an appeal to the Law Division. At the
conclusion of argument, the judge held there was sufficient
evidence in the record to support defendant's convictions due to
observational evidence. Based upon the finding that the State's
witnesses were credible, the judge held the State had proven
4 A-2570-15T2
operation and found defendant guilty of DWI and refusal to submit
to a breath test. Defendant was found not guilty of possession
of an open alcoholic container. A matching sentence to the
municipal court sentence was imposed, and defendant's request for
a stay pending appeal was denied. This appeal followed.
Defendant raises the following points on appeal.
POINT I
[DEFENDANT] WAS DENIED HER RIGHTS UNDER
THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AS THE LAW DIVISION
LACKED SUFFICIENT CREDIBLE EVIDENCE IN
THE RECORD TO SUPPORT ITS FINDINGS BEYOND
A REASONABLE DOUBT THAT [DEFENDANT]
OPERATED THE MOTOR VEHICLE IN QUESTION
WHILE INTOXICATED.
POINT II
THE LAW DIVISION LACKED SUFFICIENT
CREDIBLE EVIDENCE IN THE RECORD TO
SUPPORT ITS FINDINGS BEYOND A REASONABLE
DOUBT THAT [DEFENDANT] REFUSED TO PROVIDE
A BREATH SAMPLE. (RAISED BELOW)
POINT III
[DEFENDANT] WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF HER
SIXTH AND FOURTEENTH AMENDMENT RIGHTS AT
TRIAL.
A. [DEFENDANT] WAS DENIED HER FEDERAL
AND STATE CONSTITUTIONAL RIGHTS TO
THE EFFECTIVE ASSISTANCE OF COUNSEL
DUE TO THE FAILURE OF HER TRIAL
ATTORNEY TO INVESTIGATE VIABLE
DEFENSES WHICH COULD HAVE VALIDATED
5 A-2570-15T2
[DEFENDANT'S] CLAIM SHE WAS NOT THE
DRIVER OF THE VEHICLE IN QUESTION.
B. [DEFENDANT] WAS DENIED HER FEDERAL
AND STATE CONSTITUTIONAL RIGHTS TO
THE EFFECTIVE ASSISTANCE OF COUNSEL
DUE TO THE FAILURE OF HER TRIAL
ATTORNEY TO FILE A PRE-TRIAL MOTION
TO DISMISS THE CHARGES BASED UPON
THE STATE'S FAILURE TO PROVIDE THE
REQUIRED DISCOVERY REGARDING
OFFICER ARTHUR'S QUALIFICATIONS TO
OPERATE AN ALCOTEST.
POINT IV
THE LAW DIVISION ERRONEOUSLY APPLIED THE
LAW WITH RESPECT TO ANALYZING
[DEFENDANT'S] CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL, SPECIFICALLY BY
MISAPPLYING THE TEST SET FORTH IN STATE
V. ALLAH.1
POINT V
THE LAW DIVISION ERRONEOUSLY APPLIED THE
LAW WITH RESPECT TO ANALYZING
[DEFENDANT'S] MOTION FOR A DIRECTED
VERDICT, SPECIFICALLY BY MISAPPLYING THE
TEST SET FORTH IN STATE V. REYES2 AS THE
STATE'S EVIDENCE FELL SHORT OF WHAT WAS
NECESSARY TO SUSTAIN [DEFENDANT'S]
CONVICTION.
POINT VI
THE LAW DIVISION ERRONEOUSLY DETERMINED
THAT OFFICER ARTHUR WAS CREDIBLE DESPITE
NUMEROUS INCONSISTENCIES FOUND
THROUGHOUT HIS TESTIMONY AND POLICE
REPORT.
1
170 N.J. 269 (2002).
2
50 N.J. 454 (1967).
6 A-2570-15T2
POINT VII
[DEFENDANT'S] CONVICTION SHOULD BE REVERSED ON
THE BASIS OF CUMULATIVE ERROR.
In an appeal from a de novo hearing on the record, we consider
only the action of the Law Division and not that of the municipal
court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div.
2001) (citation omitted). Therefore, when a defendant appeals a
conviction of violating a motor vehicle law, the scope of review
is both narrow and deferential. State v. Stas, 212 N.J. 37, 48-
49 (2012). The function of the reviewing court is to determine
whether the findings of the Law Division "could reasonably have
been reached on sufficient credible evidence present in the
record." State v. Johnson, 42 N.J. 146, 162 (1964). When the
findings and conclusions of the Law Division are held to meet that
criterion, our "task is complete," and we "should not disturb the
result" even if we "might have reached a different conclusion" or
if the result was a close one. Ibid.We "defer to trial courts' credibility findings that are
often influenced by matters such as observations of the character
and demeanor of witnesses and common human experience that are not
transmitted by the record." State v. Locurto, 157 N.J. 463, 474
(1999). As such, a Law Division judge in a trial de novo must
make findings of fact based upon the record made in the municipal
7 A-2570-15T2
court where the case was tried. State v. Ross, 189 N.J. Super.
67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). The
judge's function "is not the appellate function governed by the
substantial evidence rule but rather an independent fact-finding
function . . . ." Ibid. (citations omitted).
Defendant asserts her convictions must be vacated as they are
against the weight of the evidence. Defendant argues there was
not proof beyond a reasonable doubt of operation or intent to
operate the vehicle and refusal to submit a breath test. Further,
defendant raises several ineffective assistance of counsel claims.
To sustain a conviction for DWI, the State must prove beyond
a reasonable doubt that defendant operated an automobile while
under the influence of intoxicating liquor. State v. Ebert, 377
N.J. Super. 1, 10 (App. Div. 2005); State v. Grant, 196 N.J. Super.
470, 477 (App. Div. 1984). "Independent of breathalyzer results,
an alternative finding of intoxication may be based upon
observational evidence to find a defendant guilty beyond a
reasonable doubt of DWI." State v. Liberatore, 293 N.J.
Super. 580, 589 (Super. Ct. 1995) (citing State v. Slinger, 281
N.J. Super. 538, 543 (App. Div. 1995)).
The term "operates" as used in N.J.S.A. 39:4-50(a) has been
broadly interpreted. State v. Tischio, 107 N.J. 504, 513
(1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed.
8 A-2570-15T2
2d 855 (1988); State v. Mulcahy, 107 N.J. 467, 478
(1987). "Operation may be proved by any direct or circumstantial
evidence — as long as it is competent and meets the requisite
standards of proof." State v. George, 257 N.J. Super. 493, 497
(App. Div. 1992) (citations omitted). Courts have consistently
adopted a practical and broad interpretation of the term
"operation" in order to express fully the meaning of the
statute. Tischio, supra, 107 N.J. at 513; State v. Morris, 262
N.J. Super. 413, 417 (App. Div. 1993).
The Court first discussed the scope of "operation" in State
v. Sweeney, 40 N.J. 359, 360-61 (1963). In affirming the
defendant's conviction, the Court held:
[A] person "operates" — or for that matter,
"drives" — a motor vehicle under the influence
of intoxicating liquor, within the
meaning of N.J.S.A. 39:4-50 . . . when, in
that condition, he enters a stationary
vehicle, on a public highway or in a place
devoted to public use, turns on the ignition,
starts and maintains the motor in operation
and remains in the driver's seat behind the
steering wheel, with the intent to move the
vehicle[.]
[Ibid.]
Evidence of "intent to move the vehicle" satisfies the statutory
requirement of operation so that actual movement is not
required. Id. at 361.
9 A-2570-15T2
Here, we find no basis for error in the Law Division
convictions. First, the judge found there was sufficient credible
evidence which supported the finding that defendant operated the
vehicle. We agree. When approached by the officer outside of the
vehicle, defendant smelled of alcohol, had bloodshot eyes, and
seemed dazed. In addition, two residents testified that they
witnessed defendant slumped over the steering wheel in the driver's
seat with the engine running. One of the residents also testified
to assisting defendant out of the driver's side of the vehicle.
There was ample credible evidence to support that defendant
operated the vehicle beyond a reasonable doubt.
The record similarly supports the judge's finding that
defendant refused to submit a breath test. The four elements
necessary to sustain a conviction for refusal to submit a breath
test are:
(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
driving while intoxicated; (3) the officer
requested defendant to submit to a chemical
breath test and informed defendant of the
consequence of not doing so; and (4) defendant
thereafter refused to submit to the test.
[State v. Marquez, 202 N.J. 485, 503 (2010);
N.J.S.A. 39:4-50.4a].
10 A-2570-15T2
When a defendant is informed of their right regarding breath
test for blood-alcohol content, "anything substantially short of
unauthorized, unequivocal assent to the officer's request that the
arrested motorist take the test constitutes a refusal to do so."
Liberatore, supra, 293 N.J. Super. at 588-89. An officer must
only read the second statement of the consequences of refusal if
the suspected motorist gives an ambiguous or conditional answer
short of an unequivocal "yes." See N.J.S.A. 39:4-50.2(e).
The record reflects that the officer read defendant the first
nine paragraphs of the Attorney General Standard Statement for
Operating Vehicles, which advised her of the statutory requirement
to submit to a breath test. In response, defendant responded "no"
and shook her head as indicative of her response. The judge found
the officer's testimony to be credible and was corroborated by the
police report in evidence. Given our review of the record and our
standard of review, we find no reason to disturb the judge's
determinations.
We briefly respond to defendant's arguments relating to
ineffective assistance of counsel. To establish ineffective
assistance of counsel, a defendant bears the heavy burden of
proving two essential elements: (1) that trial counsel "performed
below a level of reasonable competence"; (2) "a reasonable
probability that, but for counsel's unprofessional errors, the
11 A-2570-15T2
result of the proceeding would have been different." State v.
Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland v. Washington,
466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698
(1984)). Our Supreme Court has expressed a preference for
resolving ineffective assistance of counsel claims on collateral
review. State v. Preciose, 129 N.J. 451, 459-60 (1992). However,
where the allegedly deficient conduct is a matter wholly within
the trial record, an appellate court may review the claim on direct
appeal. State v. Castagna, 187 N.J. 293, 313 (2006) (citing Allah,
supra, 170 N.J. at 285). Here, since defendant's claim of
ineffective assistance of counsel rests upon evidence, such as
failure to investigate, lies outside the record, it is not ripe
for direct review.
Instead, "[i]ssues of ineffective assistance that require the
presentation of evidence lying outside the trial record are best
preserved for the [post-conviction relief] stage." Preciose,
supra, 129 N.J. at 460; State v. Hess, 207 N.J. 123, 145 (2011);
State v. Dixon, 125 N.J. 223, 262 (1991). Typically, a "defendant
must develop a record at a hearing at which counsel can explain
the reasons for his conduct and inaction and at which the trial
judge can rule upon the claims including the issue of prejudice."
State v. Sparano, 249 N.J. Super. 411, 419 (1991). Thus, "a [post-
conviction relief] proceeding would be the appropriate forum to
12 A-2570-15T2
evaluate the strategy of defendant's trial counsel . . . and other
issues requiring information that is not in the record before the
[c]ourt." State v. McDonald, 211 N.J. 4, 30 (2012). For these
reasons, we decline to address defendant's ineffective assistance
of counsel claims and preserve them for post-conviction relief.
Defendant's remaining arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
13 A-2570-15T2