SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0971-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR GASSAMA,

Defendant-Appellant.

Submitted May 28, 2019 – Decided June 10, 2019

Before Judges Gooden Brown and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Atlantic County, Municipal Appeal No. 18-

17.

Lukach Law, PC, attorneys for appellant (Stephen M. 

Lukach, III, of counsel and on the brief).

Damon G. Tyner, Atlantic County Prosecutor, attorney 

for respondent (John Joseph Santoliquido, Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Omar Gassama was arrested in Hammonton and charged with 

driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a 

chemical breath test (refusal), N.J.S.A. 39:4-50.4a; refusal to consent to the 

taking of breath samples, N.J.S.A. 39:4-50.2; unsafe lane change, N.J.S.A. 39:4-

88(b); reckless driving, N.J.S.A. 39:4-96; and using a handheld cell phone while 

driving, N.J.S.A. 39:4-97.3. At the conclusion of the trial, the municipal court 

issued a written decision, finding defendant guilty of all charges, with one 

exception.1 Following a trial de novo in the Law Division, the judge issued a 

written decision, finding the State proved all of the remaining charges beyond a 

reasonable doubt, except reckless driving.2 

Defendant now appeals, raising four of the five points he raised before the 

Law Division judge:3

 

1 The municipal court found defendant not guilty of refusal to consent to the 

taking of breath samples because the penalty provisions for that charge are 

included in the refusal statute. 

2 The Law Division judge determined that, although defendant was DWI, he did 

not "dr[i]ve his vehicle heedlessly, in willful or wanton disregard of the rights 

or safety of others, in a manner so as to endanger, or likely to endanger, a person 

or property." See N.J.S.A. 39:4-96.

3 Defendant's fifth point before the Law Division judge pertained to his reckless 

driving conviction.
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POINT I

THE LAW DIVISION ERRED IN HOLDING THERE 

WAS SUFFICIENT REASONABLE SUSPICION TO 

PERFORM PSYCHOPHYSICAL TESTS AT THE 

SCENE PURSUANT TO STATE V. BERNOKEITS[, 

423 N.J. SUPER. 365 (APP. DIV. 2011)]. THUS, THIS 

COURT SHOULD REVERSE AND SUPPRESS ALL 

EVIDENCE SEIZED OR OBSERVED AS FRUIT OF 

THE POISONOUS TREE AND ACQUIT 

DEFENDANT OF REFUSAL AND DWI.

POINT II

THERE IS REASONABLE DOUBT AS TO THE 

INTOXICATION ELEMENT OF DWI. THUS, THE 

LAW DIVISION RULING SHOULD BE REVERSED 

AND DEFENDANT ACQUITTED OF DWI.

POINT III

UNDER THE UNIQUE CIRCUMSTANCES OF THIS 

CASE, THE STATE FAILED TO PROVE REFUSAL 

BEYOND A REASONABLE DOUBT. 

[DEFENDANT] HAD DEMONSTRATED A VALI[D] 

CONFUSION DEFENSE. EVEN IF CONFUSION 

PROPERLY [WERE] NOT FOUND, THE "NO" 

RESULTS OF POLICE QUESTIONING WHILE 

DEFENDANT WAS IN CUSTODY, VIOLATES 

DEFENDANT'S FIFTH AMENDMENT RIGHTS, 

AND/OR THE NEW JERSEY COMMON LAW 

PRIVILEGE AGAINST SELF-INCRIMINATION.

POINT IV

THE LAW DIVISION ERRED IN CONVICTING 

DEFENDANT OF [USING A HANDHELD CELL 

PHONE WHILE DRIVING,] N.J.S.[A.] 39:4-97.3, 
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GIVEN LACK OF PROOF BEYOND A 

REASONABLE DOUBT.

We reject these arguments and affirm. 

I.

We derive the salient facts from the testimony adduced at the municipal 

court trial, during which the arresting trooper testified on behalf of the State and 

defendant testified in his own behalf. The State also moved into evidence 

several documents, and the video of the incident captured by the police car's 

mobile recorder.

On March 5, 2017, at approximately 8:00 a.m., State Trooper Jerome 

Gordon was patrolling the Atlantic City Expressway in Hammonton when he 

received a report of an "erratic operator." Thereafter, Gordon noticed 

defendant's vehicle "driving between the right and the center lanes," without 

signaling. When the car passed Gordon's location in a cutout of the roadway, 

the trooper observed defendant holding a cellphone in his left hand.

Gordon then stopped the car, and upon approaching, immediately smelled 

alcohol emanating from the vehicle. Gordon made multiple requests for 

defendant's driving credentials, but defendant moved slowly and his hands were 

"fumbling when he was trying to get those documents." Defendant's eyes 

appeared "bloodshot and watery," with "droopy lids." Based on those 
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observations, Gordon asked defendant to exit the vehicle and perform 

standardized field sobriety tests.

Defendant failed to comply with Gordon's instructions by miscounting the 

number of steps requested for the walk-and-turn test, and incorrectly counting 

during the one-leg-stand test. During administration of the tests, defendant was 

"swaying, [with] saggy knees," "grasping for support and . . . staggering" with 

his "feet wide apart for balance." His speech was "rambling, slobbering," 

"slurred" and "whispering at times." When Gordon asked whether defendant 

had any injuries, defendant said he had a leg injury, but would not elaborate. 

Instead, defendant repeated he had a "medical problem." Gordon placed 

defendant under arrest for DWI. 

At the police barracks, Gordon again administered Miranda4 warnings to 

defendant, but defendant refused to sign the form confirming he had been so 

advised. Gordon then read to defendant the Attorney General's Standard 

Statement for Motor Vehicle Operators (standard statement), informing him of 

the consequences of a refusal to submit to a breath test. When ultimately asked 

whether he would submit to breath samples, defendant responded, "I'm not 

 

4 Miranda v. Arizona, 384 U.S. 436 (1966).
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sure." Gordon then read aloud the following passage from the standard 

statement: 

Your answer is not acceptable. The law requires that 

you submit samples of your breath for breath testing. If 

you do not answer or answer with anything other than 

"yes," I will charge you with refusal. Now, I ask you 

again, will you submit to breath testing? 

Defendant responded, "no." Defendant acknowledged that he had consumed 

"[o]ne Heineken" beer the night before the stop. Gordon memorialized 

defendant's response on the standard State Police drunk driving questionnaire.

Defendant testified at the hearing and gave a vastly different version of 

the events. He claimed he never switched lanes on the Expressway, remaining 

in the right lane, where he "always drive[s]." Defendant denied drinking the 

night before, stating "I never drink [sic] in my life." He also said he was not 

holding his cell phone when he passed Gordon. Rather, he claimed the cell 

phone had run out of battery power because he had been using it for GPS 

purposes during his trip from Pennsylvania. Defendant also blamed the pain in 

his legs for his inability to perform the field sobriety tests. He said he requested 

a lawyer after he was read the standard statement, claiming that he did not trust 

Gordon. Defendant claimed he "begged [Gordon] to take a [breath] test."
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The municipal court made detailed factual findings, crediting the 

testimony of the trooper, thereby implicitly rejecting defendant's account. See

State v. Locurto, 157 N.J. 463, 474 (1999). After reviewing the municipal court 

record, the Law Division judge made substantially similar factual and credibility 

findings.5

In particular, the Law Division judge determined "[Gordon's] testimony 

was consistent, reasonable and, together with the documentary record, was 

believable." Conversely, the judge found defendant's testimony was not 

credible. For example, the video evidence contradicted defendant's testimony 

that he crossed the center lane without signaling; Gordon's detection of the odor 

of alcohol and defendant's admission that he drank beer contradicted his trial 

testimony that he had not consumed alcohol; and defendant's alleged mistrust of 

Gordon defied his testimony that he "begged the trooper to administer the 

 

5 Citing our decision in State v. Kashi, the Law Division judge clearly 

understood his role was neither to affirm nor reverse the municipal court's 

rulings. 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd o.b., 180 N.J. 45 

(2004); see also State v. Robertson, 228 N.J. 138, 147 (2017). Further, the judge 

aptly made his own independent findings of fact based on the record before the 

municipal court. Robertson, 228 N.J. at 147. Nonetheless, the judge incorrectly 

"denied" defendant's appeal of his DWI, refusal, and use of a cell phone 

convictions, and "granted" defendant's appeal of his reckless driving conviction. 
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[breath test]." Nor did the judge find credible defendant's testimony that he was 

not using his cell phone prior to the stop.

The Law Division judge set forth his conclusions of law based on the 

evidentiary record for each charge. The judge first considered the propriety of 

the DWI stop and subsequent field sobriety testing. Recognizing police only 

need reasonable articulable suspicion that a motor vehicle violation has occurred 

to stop a vehicle, "no matter how minor" the violation, the judge determined the 

stop was justified. The judge elaborated: 

[T]he trooper first observed . . . defendant using a 

mobile phone. The trooper also observed . . . 

defendant's vehicle switching between the right and 

center lanes without engaging the directional signal. 

This is consonant with the video record. When . . . 

Gordon stopped . . . defendant's vehicle, he noticed . . . 

defendant had bloodshot and watery eyes, and . . . 

fumbled while retrieving his license and registration. 

He likewise testified that [the] odor of alcoholic 

beverage was emanating from the vehicle. 

Relevant to this appeal, the judge further determined defendant's reliance 

on Bernokeits was "misplaced." As the judge observed, in Bernokeits, we 

recognized a defendant could be ordered to perform field sobriety tests solely 

on the basis of reasonable suspicion of intoxication. 423 N.J. Super. at 374. In 

the present case, there existed sufficient evidence of defendant's intoxication to 

support Gordon's reasonable suspicion and justify field sobriety testing, i.e., 
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defendant's slurred speech, bloodshot eyes, fumbling for documents and the odor 

of alcohol emanating from the vehicle. 

Turning to the DWI charge, the judge summarized the governing 

principles and squarely addressed defendant's argument that his injuries 

prevented him from passing the sobriety tests:

[D]efendant argues that he informed the trooper of 

injuries to his legs and back. However, even with the 

injuries, defendant was able to walk in a straight line 

and pivot correctly. Defendant's deficiencies on the 

walk and turn test were his failure to follow instructions 

(e.g.; walking [twelve] steps up and [eleven] steps back 

when instructed to take [nine] steps, up and back), and 

failure to walk heel to toe. This runs contrary to 

defendant's argument that his injuries caused him to fail 

the walk and turn test. 

When the trooper administered the one leg stand 

[test], . . . defendant had to use support and the trooper 

had to grab . . . defendant to keep him from falling over. 

Defendant was ordered to stand on the leg that was not 

injured. . . . [D]efendant also counted to ten several 

times, despite the trooper's directive that he continue 

counting in ascending order until directed to stop. . . .

[D]efendant likewise admitted to drinking alcohol. 

Finally, the judge noted defendant's refusal to submit to a breath test was 

"evidence of intoxication." 

Addressing the refusal charge, the Law Division judge appropriately 

rejected defendant's "confusion" defense, recognizing that defense is not viable 
10 A-0971-18T4

in our State. Instead, the judge noted defendant's initial "I'm not sure" answer 

was followed by a "no" response to Gordon's second question from the standard 

statement. Accordingly, the judge determined defendant clearly understood 

Gordon's request for a breath sample, but "simply refused to submit to breath 

testing." 

The judge likewise rejected defendant's contention that the standard 

statement questions posed by Gordon violated Miranda. According to the judge, 

that argument "r[an] contrary to the litany of cases indicating that anything short 

of unequivocal assent, even silence, constitutes refusal, in applying the implied 

consent statute, N.J.S.A. 39:4-50.2(a)." See, e.g., State v. Widmaier, 157 N.J. 

475, 497 (1999); State v. Spell, 395 N.J. Super. 337, 344 (App. Div. 2007). 

Here, defendant was provided the warnings multiple times, and "simply refused 

to acknowledge them." 

Finally, regarding use of a cell phone while driving, the judge accepted 

Gordon's "testimony as credible that he saw the phone raised in defendant's left 

hand." Further, defendant failed to satisfy any exception set forth in N.J.S.A. 

39:4-97.3(b). This appeal followed.
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II.

Our review is limited following a trial de novo in the Law Division 

conducted on the record developed in the municipal court. State v. Clarksburg 

Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). 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). Thus, we do not independently assess 

the evidence. Locurto, 157 N.J. at 471. Rather, we focus our review on "whether 

there is 'sufficient credible evidence . . . in the record' to support the trial court's 

findings." State v. Robertson, 228 N.J. 138, 148 (2017) (alteration in original) 

(quoting State v. Johnson, 42 N.J. 146, 162 (1964)). 

By contrast, our review of a legal determination is plenary. State v. 

Kuropchak, 221 N.J. 368, 383 (2015). However, we will reverse only after being 

"thoroughly satisfied that the finding is clearly a mistaken one and so plainly 

unwarranted that the interests of justice demand intervention and correction 

. . . ." Johnson, 42 N.J. at 162. 

Moreover, "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." Locurto, 157 N.J. at 474. Therefore, our review of the factual and 
12 A-0971-18T4

credibility findings of the municipal court and the Law Division "is exceedingly 

narrow." State v. Reece, 222 N.J. 154, 167 (2015) (quoting id. at 470). 

Having carefully considered defendant's arguments in light of the record 

and controlling legal principles, we find no basis for reversal here. Pursuant to 

our "exceedingly narrow" standard of review, we affirm substantially for the 

reasons expressed in the Law Division judge's cogent written decision, which is 

supported by sufficient credible evidence in the record. See Locurto, 157 N.J. 

at 472. In doing so, we conclude defendant's arguments lack sufficient merit to 

warrant discussion in our opinion. R. 2:11-3(e)(2). 

Affirmed.