STATE OF NEW JERSEY VS. MICHAEL LYONS (20-19, HUDSON COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-3017-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL LYONS,

     Defendant-Appellant.
________________________

                    Submitted February 24, 2021 – Decided March 24, 2021

                    Before Judges Ostrer and Vernoia.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Municipal Appeal No. 20-
                    19.

                    Buchan & Palo, LLC, attorneys for appellant (Kevin A.
                    Buchan, on the briefs).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Lillian Kayed, Assistant Prosecutor, on the
                    brief).

PER CURIAM
      Defendant Michael Lyons appeals from a Law Division order, entered

after a trial de novo on an appeal from the Hoboken Municipal Court, finding

him guilty of driving while driving under the influence of intoxicating liquor

(DUI), N.J.S.A. 39:4-50(a); failure to report an accident, N.J.S.A. 39:4-130; and

leaving the scene of an accident, N.J.S.A. 39:4-129(b). Defendant argues his

convictions should be reversed because the State failed to present evidence

establishing the necessary elements of each offense. Having reviewed the record

and the parties' arguments, we are persuaded the evidence supports the court's

finding defendant is guilty of DUI, but there is insufficient evidence supporting

its determination defendant is guilty of leaving the scene of an accident and

failure to report an accident. We reverse defendant's convictions for the latter

two offenses and affirm his DUI conviction.

                                       I.

      The State presented two witnesses during the municipal court trial.

Hoboken Police Officer Edward Lepre testified that in that late evening of April

28, 2019, he was dispatched to the intersection of Third and Grant Streets to

investigate a report of a vehicle striking a parked car several times. He met a

woman at the scene who provided a description of the vehicle. He reported the




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                                       2
description to the dispatcher who then broadcasted it to the other officers on

patrol.

      The State also called Hoboken Police Officer Joseph Cahill as a witness

at trial. He is a thirty-five-year veteran of the Hoboken Police Department and

has extensive training in DUI investigations and the administration of field

sobriety tests and Alcotest breath tests. Cahill was on duty on the evening of

defendant's arrest. As part of his duties, he was assigned to pick up a police

department dispatcher and transport the dispatcher to police headquarters.

      As he drove to pick up the dispatcher, he observed a small gray SUV pass

through an intersection. When he first observed the vehicle, Cahill "thought [it]

didn't have [its] lights on," but after Cahill turned at an intersection and travelled

behind the SUV, he observed the lights on the SUV turn on "just before" it

stopped at a stop sign. Cahill stopped his vehicle to pick up the dispatcher, and

he saw the SUV turn into a parking lot on Adams Street.

      Cahill then heard the dispatcher broadcast a description of a "small gray

SUV" with New Jersey license plates that "fled" the scene of the accident Lepre

had investigated. Cahill transported the dispatcher to the police department and

drove to the reported accident scene. He observed a parked vehicle with "[t]he

left rear quarter panel and rear bumper . . . pushed in as if somebody was driving


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                                          3
in that area and struck" the vehicle. Cahill left the scene and went to the parking

lot where he had earlier seen the small gray SUV enter.

      Upon entering the lot, Cahill saw defendant standing outside of a small

gray SUV. Defendant held onto the open driver's door and appeared to have just

finished urinating.     The vehicle's engine was running.        Cahill observed

defendant's "fly was undone," "[h]is pants were wet . . . from urinating," and

"[t]here was a big puddle on the ground."

      Cahill approached defendant.       Cahill described defendant as "highly

intoxicated." He asked defendant if the vehicle was his, and defendant said

"yes." Cahill testified defendant had bloodshot and watery eyes, "had a very

strong odor of alcoholic beverage flavoring," and could not stand in place .

Defendant "sway[ed] back and forth" and held "onto the car for support."

Defendant also "slurr[ed] his words," and, when Cahill asked for identification,

defendant "went through his wallet several times passing his license before"

handing it over.      Cahill observed "damage on the right front side . . . of

[defendant's] vehicle" that "would match up more or less with the

same . . . damage on the . . . parked vehicle" at the alleged accident scene.

      Cahill testified he arrested defendant but did not perform any field

sobriety tests because defendant's inability to stand made the tests unsafe. While


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                                        4
Cahill placed handcuffs on defendant, defendant lost his balance, and it was

necessary for Cahill to "grab" defendant to "do a controlled fall to the ground."

By that time, other officers had arrived. Four officers were required to help

defendant off the ground and place him in Cahill's vehicle. Once at the police

station, four officers were required to remove defendant from Cahill's vehicle.

After he was removed, "defendant fell to his knees," and four officers were

required to get defendant to his feet.

       After defendant entered the station, Cahill administered Alcotest breath

tests.1 During the process prior to the administration of the tests and following

the administration of Miranda2 warnings, Cahill asked defendant if he had been

drinking.    Cahill testified that defendant said he drank four or five "Harp

beer[s]."

       On cross-examination, Cahill acknowledged he did not see defendant

operate the vehicle, but he explained defendant stood beside the vehicle with the


1
  During trial, the court determined the results of the Alcotest breath tests were
inadmissible because the State did not offer into evidence two foundational
documents—the most recent New Standard Solution Report and the Certificate
of Analysis of the Simulator Solution used in defendant's control tests—required
for admission of the test results. See State v. Chun, 

194 N.J. 54

, 154 (2008).
The municipal court and Law Division judges did not consider the test results in
their determinations of defendant's guilt on the DUI charge.
2
    Miranda v. Arizona, 

384 U.S. 436

(1966).
                                                                            A-3017-19
                                         5
engine running and no one else around. While at the police station, Cahill asked

defendant about his medical history, and defendant said he had high blood

pressure and diabetes. Cahill testified he did not believe his observations of

defendant were consistent with someone suffering from a diabetic episode

because defendant was "highly intoxicated."

      Defendant presented one witness, Herbert Leckie, who the court qualified

as an expert in the administration of field sobriety tests, DUI investigations, and

"the interrelationship of medical conditions including diabetes and high blood

pressure and the impact that it may have on intoxication or the appearance of

intoxicat[ion]." Leckie described the standard field sobriety tests—the one-

legged stand, horizontal gaze nystagmus, and walk-and-turn tests—and

explained that alternative tests—"the alphabet test, the counting-backwards test,

a finger dexterity test," and the "normal abilities test"—may be performed when

the standard tests are not possible.      Leckie testified there was no reason

defendant could not have been asked to perform the alternative tests prior to his

arrest or at the police station.

      Leckie also testified that "if the person [is] a diabetic and experiencing a

diabetic emergency[,] . . . that can oftentimes mimic the signs and symptoms of

impairment." He also explained that "[t]he person will appear lethargic, not be


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                                        6
able to put together sentences, [have] slurred speech, their physical coordination

would be impaired based upon that condition," and the person may emit a mouth

odor that can mimic alcohol.         On cross-examination, however, Leckie

acknowledged he was unaware of any evidence defendant suffered a diabetic

emergency on the evening of his arrest.

      The municipal court judge rendered an opinion from the bench finding the

defendant "was in physical possession of the vehicle" and had "intent to operate

the vehicle" because he was standing next to it with the engine running and no

one else around.    The court also found Cahill's observations of defendant

established defendant was under the influence of intoxicating liquor and

therefore violated the DUI statute, N.J.S.A. 39:4-50(a).

      The municipal court judge further found Cahill's testimony that "the

damage to . . . defendant's vehicle and the paint transfer onto . . . defendant's

vehicle matched the damage and the color of the vehicle . . . that was struck

while parked" established beyond a reasonable doubt defendant had been

involved in an accident with the parked vehicle. Based on that finding, the court

concluded defendant left the scene of the accident in violation of N.J.S.A. 39:4-

129(b), and failed to report an accident in violation of N.J.S.A. 39:4-130.




                                                                              A-3017-19
                                        7
      The municipal court judge sentenced defendant to a two-year license

suspension on the DUI conviction and a concurrent six-month suspension on the

leaving the scene of an accident conviction. The court ordered that defendant

attend forty-eight hours at the Intoxicated Driver's Resource Center on the DUI

charge. The court also imposed fines, penalties, and court costs on each of the

three offenses. The court stayed the concurrent license suspensions pending

appeal subject to the condition that defendant install an ignition interlock device

on his vehicle. Defendant timely appealed to the Law Division.

      At the trial de novo in the Law Division, defendant argued Cahill's

observations alone were insufficient to support a finding he was under the

influence of an intoxicating liquor. He further claimed that contrary to the

municipal court's finding, there was no evidence of a paint transfer between his

vehicle and the parked vehicle that the State alleged had been involved in an

accident. Defendant argued there was no competent evidence there had been an

accident. Defendant also claimed that because there was no evidence there was

an accident or that he was involved in an accident, he could not properly be

convicted of either leaving the scene of an accident or failing to report an

accident. Defendant further asserted the State failed to present evidence that the

value of the property damage in the alleged accident was at least $500, and, as


                                                                             A-3017-19
                                        8
a result, the State failed to prove an essential element of a failure to report an

accident offense under N.J.S.A. 39:4-130.

      The Law Division judge rejected defendant's claim he could not be

convicted of DUI because Cahill did not perform field sobriety tests. The court

accepted Cahill's testimony and concluded Cahill's observations established

defendant was under the influence of an intoxicating liquor. The court also

found defendant operated his vehicle within the meaning of N.J.S.A. 39:4-50(a)

by standing next to the vehicle with its engine running while holding onto the

driver's door with no one else in the area.

      The court rejected defendant's reliance on Leckie's testimony that

individuals experiencing a diabetic episode will exhibit the same physical

manifestations as someone who is intoxicated.         The court noted Leckie's

admission that there was no evidence defendant experienced a diabetic episode

on the evening of his arrest. The court found defendant guilty of DUI.

      The court also determined defendant was involved in an accident because

Lepre reported that a small gray SUV fled the scene of the parked vehicle, and

Cahill testified the damage to the parked vehicle—a pushed in "left-rear quarter

panel" and rear bumper—"more or less" matched the damage to the "right front"




                                                                            A-3017-19
                                        9
of defendant's small gray SUV.3       The court determined Cahill's testimony

established defendant was involved in an accident with the parked car, left the

scene of the accident, and failed to report the accident to Cahill. The court found

defendant guilty of violating N.J.S.A. 39:4-129(b) and N.J.S.A. 39:4-130.

      The court imposed the same sentences as the municipal court on

defendant's conviction of the three offenses, and the court stayed the suspension

of defendant's license pending appeal.       Defendant appeals from the Law

Division's final order. He offers the following arguments for our consideration:

             POINT I

            THE COURT ERRED BY FINDING [DEFENDANT]
            GUILTY OF DRIVING WHILE INTOXICATED.

            POINT II

            THE COURT IMPERMISSIBLY SHIFTED THE
            BURDEN TO [DEFENDANT].

            POINT III

            THE COURT ERRED BY FINDING [DEFENDANT]
            GUILTY OF LEAVING THE SCENE OF AN
            ACCIDENT.



3
  The Law Division judge correctly noted there is no support in the record for
the municipal court's finding there was evidence of a "paint transfer" between
defendant's vehicle and the parked vehicle that supported the municipal court's
conclusion defendant had been involved in an accident with the parked vehicle.
                                                                             A-3017-19
                                       10
            POINT IV

            THE COURT ERRED BY FINDING [DEFENDANT]
            GUILTY OF FAILING TO REPORT AN ACCIDENT.

                                         II.

      In our review of the Law Division's decision on a municipal appeal, "we

'consider   only   the   action   of   the     Law   Division   and   not   that   of

the municipal court.'" State v. Adubato, 

420 N.J. Super. 167

, 175-76 (App. Div.

2011) (citation omitted). "Unlike the Law Division, which conducts a trial de

novo on the record, Rule 3:23-8(a), we do not independently assess the

evidence." State v. Gibson, 

429 N.J. Super. 456

, 463 (App. Div. 2013) (citing

State v. Locurto, 

157 N.J. 463

, 471 (1999)), rev'd on other grounds, 

219 N.J.

227

(2014). We consider only "whether the findings made could reasonably

have been reached on sufficient credible evidence present in the record." State

v. Stas, 

212 N.J. 37

, 48-49 (2012) (quoting 

Locurto, 157 N.J. at 471

); see also

State v. Robertson, 

228 N.J. 138

, 148 (2017). We review de novo the court's

legal conclusions and the legal consequences that flow from established facts .

State v. Goodwin, 

224 N.J. 102

, 110 (2016).

                                         A.

      Defendant argues the evidence does not support his DUI conviction

because Cahill's "uncorroborated observations of impairment are simply

                                                                              A-3017-19
                                        11
insufficient to prove guilt beyond a reasonable doubt." In his reply brief,

defendant "concede[s] that there is no per se rule or legal requirement that an

officer's observations must be corroborated by [f]ield [s]obriety [t]ests or an

Alcotest reading," but he contends that to establish proof beyond a reasonable

doubt, "corroboration of some kind is necessary for the [S]tate to meet [its]

heavy burden" of proof. We disagree.

      In pertinent part, N.J.S.A. 39:4-50(a) prohibits an individual from

"operat[ing] a motor vehicle while under the influence of intoxicating liquor."

To establish a violation of the statute, the State must prove the defendant

operated a motor vehicle while under the influence of intoxicating liquor, State

v. Thompson, 

462 N.J. Super. 370

, 374 (App. Div. 2020), beyond a reasonable

doubt, 

Robertson, 228 N.J. at 148

.

      Defendant does not challenge the court's determination the State proved

beyond a reasonable doubt that he operated the vehicle.          See generally

Thompson, 462 N.J. Super. at 374-75

(explaining proofs required to establish

operation of a vehicle under N.J.S.A. 39:4-50(a)). Operation of a vehicle under

N.J.S.A. 39:4-50(a) does not require proof of "driving" and "may be found from

evidence that would reveal 'a defendant's intent to operate a motor vehicle.'"

Ibid. (quoting State v.

Tischio, 

107 N.J. 504

, 513 (1987)). Our independent


                                                                          A-3017-19
                                      12
review of the record confirms there is substantial credible evidence establishing

defendant operated the vehicle.

      Defendant argues the evidence did not adequately establish he was under

the influence of an intoxicating liquor at the time of his operation of the vehicle.

"A driver is 'under the influence' of alcohol, N.J.S.A. 39:4-50, when his or her

'physical coordination or mental faculties are deleteriously affected.'" State v.

Nunnally, 

420 N.J. Super. 58

, 67 (App. Div. 2011) (quoting State v. Emery, 

27

N.J. 348

, 355 (1958)). "'Intoxication' not only includes obvious manifestations

of drunkenness but any degree of impairment that affects a person's ability to

operate a motor vehicle." State v. Zeikel, 

423 N.J. Super. 34

, 48 (App. Div.

2011).

      Cahill's testimony provided sufficient credible evidence establishing

defendant was under the influence of an intoxicating liquor, and that his physical

coordination and mental faculties were affected. Defendant admitted drinking

alcoholic beverages, four or five beers, and Cahill's testimony established that

prior to pulling into the parking lot, defendant drove his vehicle late at night

without its lights on. Cahill also observed defendant had bloodshot and watery

eyes, had the smell of alcohol on his breath, slurred his words, swayed as he

stood, had difficulty finding his license in his wallet, and could not stand without


                                                                              A-3017-19
                                        13
holding onto his vehicle's door. Those observations amply support Cahill's

testimony that defendant was "highly intoxicated," and the court's finding

defendant was under the influence. See State v. Bealor, 

187 N.J. 574

, 588 (2006)

(noting a court will sustain a driving while under the influence of alcohol

conviction "on proofs of the fact of intoxication—a defendant's demeanor and

physical appearance—coupled with proofs as to the cause of intoxication—i.e.,

the smell of alcohol, an admission of the consumption of alcohol, or a lay

opinion of alcohol intoxication"); State v. Bryant, 

328 N.J. Super. 379

, 383

(App. Div. 2000) (noting that the "prosecutor could have proceeded on the

driving under the influence charge by utilizing evidence other than the

breathalyzer results," including an odor of alcohol, "slow and uncoordinated"

hand movements, "difficulty walking," and a refusal to take a sobriety test).

      We find no support in the law for defendant's claim Cahill's competent

and admissible testimony could not satisfy the State's burden of proving

defendant was under the influence. As we explained in State v. Corrado, "[e]ven

in the absence of breathalyzer results, the testimony of the police officers

regarding their observations and opinions based thereon was sufficient to

establish th[e] defendant was intoxicated." 

184 N.J. Super. 561

, 567 (App. Div.

1982); see also State v. Guerrido, 

60 N.J. Super. 505

, 510 (App. Div. 1960)


                                                                           A-3017-19
                                      14
(finding testimony that the "defendant smelled of alcohol, staggered, was

abusive, and was definitely under the influence of intoxicating liquor" supported

a conviction for DUI); State v. Liberatore, 

293 N.J. Super. 580

, 589 (Law Div.)

("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 DUI."), aff'd o.b., 

293 N.J. Super. 535

(App. Div. 1996).

We therefore discern no basis to conclude the court erred by finding the State

presented sufficient evidence establishing beyond a reasonable doubt that

defendant was under the influence.          Cahill's observations of the highly

intoxicated defendant are enough.

      Defendant also claims the court improperly shifted the burden to him by

implying he had an obligation to present evidence concerning his diabetes.

Defendant relies on the court's finding "there was no evidence presented . . . that

showed . . . defendant was having a diabetic episode at the time of his arrest."

He contends the court's finding impermissibly placed a burden on him to

"present an alternative theory and specifically evidence of diabetes."

      The record does not support defendant's claim. He introduced the issue

of the effects of a diabetic episode into the case. Defendant presented Leckie,

who testified the effects of a diabetic episode mimic the effects of intoxication.


                                                                             A-3017-19
                                       15
In its opinion, the court merely addressed defendant's argument, supported by

Leckie's testimony, that defendant's physical characteristics and actions might

have been caused by a diabetic episode and not intoxication. The court did not

shift the burden to defendant. The court did nothing more than restate Leckie's

testimony there was no evidence defendant suffered from a diabetic episode, and

the court properly determined that without such evidence, it could not conclude

defendant's appearance and actions were the result of a diabetic episode. The

court solely relied on the State's evidence defendant was highly intoxicated to

support its finding defendant operated his vehicle while under the influence of

an intoxicating liquor in violation of N.J.S.A. 39:4-50(a). We therefore affirm

defendant's conviction for DUI.

                                        B.

      Defendant argues there was insufficient credible evidence establishing he

was involved in an accident and, as a result, his convictions for leaving the scene

of an accident and failure to report an accident must be reversed. He also claims

he could not be properly convicted of failing to report an accident because the

State did not present evidence establishing the alleged accident resulted in

property damage in excess of $500.




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                                       16
      N.J.S.A. 39:4-130 defines the offense of failing to report an accident. In

pertinent part, the statute provides that "[t]he driver of a vehicle . . . involved in

an accident resulting in injury to . . . any person . . . or damage to property of

any one person in excess of $500[] shall by the quickest means of

communication give notice of such accident" to the police. N.J.S.A. 39:4-130.

By the statute's plain language, a driver commits an offense when he or she fails

to report involvement in an accident resulting in either injury to any person or

property damage of any one person exceeding $500.

      The trial record is bereft of evidence that any person suffered personal

injury in the purported accident or that there was any property damage exceeding

$500. Indeed, the court's findings of fact and conclusions of law do not address

this essential element of an offense under N.J.S.A. 39:4-130. The State failed

to sustain its burden of proving property damage element of the offense, and,

for that reason alone, we reverse defendant's conviction for failing to report an

accident. See State v. Cooper, 

129 N.J. Super. 229

, 231 (App. Div. 1974)

(explaining that "the State has the burden of proving all the essential elements

of a motor vehicle violation").

      We reverse defendant's conviction for failure to report an accident for a

separate but equally dispositive reason that also requires the reversal of


                                                                               A-3017-19
                                         17
defendant's conviction for leaving the scene of an accident in violation of

N.J.S.A. 39:4-129(b). The failure to report and leaving the scene offenses for

which defendant was convicted share a common element: the State must prove

the defendant was involved in an accident in the first instance. See N.J.S.A.

39:4-129(b) (requiring that a "driver of any vehicle knowingly involved in an

accident resulting only in damage to a vehicle . . . immediately stop" and stay at

the scene or as close as possible to the scene); N.J.S.A. 39:4-130 (requiring the

driver of a vehicle involved in an accident involving personal injury or property

damage exceeding $500 to provide notice of the accident to the police). The

trial evidence failed to satisfy the State's burden of proving this element of the

offenses for which defendant was convicted.

      There was no direct evidence presented at trial describing the occurrence

of the accident during which defendant allegedly drove his vehicle into a parked

car. No witnesses to the accident testified. The owner of the parked vehicle did

not testify. There was no evidence concerning the condition of the parked

vehicle before the alleged accident. Instead, Lepre testified he was dispatched

to investigate a "complaint of a vehicle that struck a parked vehicle several

times," and he spoke to a woman when he arrived. The municipal court properly

sustained defendant's objection to Lepre testifying about what the woman said.


                                                                            A-3017-19
                                       18
See N.J.R.E. 802 (prohibiting admission of hearsay evidence unless as otherwise

provided by the Rules of Evidence).         Thus, Lepre testified only that after

speaking to the woman, he provided a description of a vehicle, a small gray

SUV, to the dispatcher. Neither Lepre nor any other witness testified the car he

described was involved in an alleged accident with the parked car.

      The court's finding defendant was the driver of the vehicle involved in the

alleged accident with the parked car is founded solely on Cahill's testimony the

damage to the parked car "more or less" matched the damage to defendant's

vehicle. We find that scant opinion testimony insufficient to establish beyond a

reasonable doubt that defendant's vehicle was involved in a purported accident

with the parked car.      The State offered no competent evidence linking

defendant's vehicle to the purported accident with the parked car, and, in our

view, the mere fact that defendant's vehicle had damage that "more or less"

matched the damage to the parked car does not establish beyond a reasonable

doubt that the two cars had been involved in accident or that defendant's vehicle

caused the damage to the parked car. Lacking evidence establishing defendant's

vehicle was involved in the purported accident and defendant was driving the

vehicle at the time, the court's findings defendant is guilty of leaving the scene,




                                                                             A-3017-19
                                       19
N.J.S.A. 39:4-129(b), and failing to report an accident, N.J.S.A. 39:4-130,

cannot be sustained. We reverse defendant's convictions for those offenses.

      Affirmed in part, reversed in part.    The stay of defendant's license

suspension for his DUI conviction is hereby vacated.




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                                     20

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