SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2157- 21
STATE OF NEW JERSEY , Plaintiff-Respondent,

v. ANDRZEJ J. DABEK, Defendant-Appellant.

_______________________

Submitted October 17, 2023

– Decided November 30 , 2023 Before Judges Whipple, Enright and Paganelli. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 6263. Law Offices of Curt J. Geisler, LLC, attorney for appellant (Curt J. Geisler, on the brief). Camelia M. Valdes, Passaic County Prosecutor , attorney for respondent (Timothy P. Kerrigan, Jr., Senior 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 PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2157

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Defendant Andrzej Dabek appeals from a February 23 , 2022 order of the Law Division finding him guilty of driving under th e influence, N.J.S.A. 39:4- 50 , after conducting a de novo review of the record d eveloped in the municipal court pursuant to Rule 3:23 -8. He also appeals from the denial of his motion for a judgment of acquittal and his request for a stay. We are convinced the Law Division judge 's findings were reasonable and based on sufficient credible evidence in the record and he did not abuse his dis cretion in denying the defendant's request for a stay. We affirm. Defendant argues:

POINT I. DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE STATE FAILED TO ESTABLISH DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
POINT II. A JUDGMENT OF ACQUITTAL IN FAVOR OF DEFENDANT SHOULD HAVE BEEN ENTERED IN THE LAW DIVISION AS TO THE DRIVING WHILE UNDER THE INFLUENCE CHARGES AT THE END OF THE STATE'S CASE SINCE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS UNDER THE INFLUENCE WHEN HE OPERATED A MOTOR VEHICLE.
POINT III. THE COURTS BELOW ERRED IN NOT STAYING THE TRIAL UNTIL THE SPECIAL3 A- 2157

- 21 MASTER'S DECISION IN OLENOWSKI AS DEFENDANT'S COUNSEL AND EXPERT WITNESS WERE DEPRIVED OF THE SPECIAL MASTER'S FINDINGS AT TRIAL; IN ADDITION, IN SPITE OF THE SPECIAL MASTER'S DECISION IN OLENOWSKI THE COURT BELOW ERRED IN NOT FINDING THE DEFENDANT "NOT GUILTY" AS REASONBLE DOUBT EXISTS IN THIS CASE.
I. In conducting its "trial de novo on the record bel ow," 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 credibil ity findings." State v. Robertson, 228 N.J. 138, 147 (2017). Our standard of review is limited. State v. Clarksburg Inn , 375 N.J. Super. 624, 639 (App. Div. 2005). In such an appeal, we c onsider only "the action of the Law Division and not that of the municipal cour t." State v. Palma, 219 N.J. 584, 591

- 92 ( 2014 ) (quoting State v. Oliveri, 336 N.J. Super. 244, 2 51 (App. Div. 2001))

. The "standard of review of a de novo verdict after a municipal court trial is to 'determine whether the findings m ade could reasonably have been reached on sufficient credible evidence presen ted in the record, ' considering the proofs as a whole." State v. Ebert , 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Johnson , 42 N.J. 146, 1 62 (19 64 )).4 A- 2157

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We "do [] not weigh the evidence anew but merely determine[] whether the evidence supports the judgment of conviction." Johnson , 42 N.J. at 157. Furthermore, we "defer to trial courts' credibility findings that are often influenced by matters such as observations of the c haracter and demeanor of witnesses and common human experience that are not transmitted by the record." St ate v. Locurto, 157 N.J. 463, 474 (1999). "[T]he rule of deference is more compelling where, as in the present case, two . . . courts have [made] . . . concurrent findings of fact and credibility d eterminations." I bid. Therefore, appellate review of the factual and credibility fin dings of the municipal court and the Law Division "is exceedingly narrow." Stat e v. Reece, 222 N.J. 154, 167 (2015) (quoting Locurto, 157 N.J. at 470).
II. The State summoned three witnesses to trial: Serge ant Louis Pakovics, New Jersey State Police, and Sergeant Kevin Norton an d Officer Daniel Banker of the Wanaque Police Department. 1 The municipal court judge found Sergeant

1 The municipal court judge qualified Sergeant Pakovi cs as a drug recognition expert (DRE) and the parties stipulated that defend ant's only witness, Frank Novakowski, was qualified as a DRE. Since we affirm the Law Division judge's conclusion of defendant's guilt , notwithstanding DRE opinions, we merely note the municipal court judge found that Mr. Novakowski 's testimony did not undermine Sergeant Pakovics' credibility and the La w Division judge found Mr.5 A- 2157

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Pakovics credible, noting his "opportunity to obser ve him during his testimony," "his body language," and his "responsive . . . clea r and concise" answers to questioning. 2 Further, the judge found Officer Banker credible, n oting that his "testimony was corroborated by . . . the video" and did not deviate between the two days of trial, and because of how the officer " carried . . . and conducted himself." The judge also found Sergeant Norton credible. He noted his testimony was "corroborated by what was depicted in the video" and was consistent with Officer Banker 's testimony. The Law Division judge deferred to the municipal co urt 's credibility
determinations but independently came to the same conclusions. We derive the following facts from the record. On July 14, 2018 at 1:19 p.m., Officer Banker responded to a 911 call at the intersection of Doty Road and Greenwood Avenue in Wanaque, New Jersey. Upon his arrival, Officer Banker observed an automobile that appeared to be m aking a right turn onto

Novakowski's testimony was "non-convincing" conside ring the video, "overreaching" in its criticism of Sergeant Pakovic s and "he d[id] not place great weight on his testimony."

2 We include the municipal court judge's credibility determinations as to Sergeant Pakovics because, aside from his DRE opini on, the officer's credibility wa s important when considering his lay testimony abou t defendant's admissions and the sergeant's own observations.6 A- 2157

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Greenwood Avenue but was "parked there" "blocking traff ic." Sergeant Norton responded to the call and "observed the vehicle sto pped in the middle of the
road ." Officer Banker approached the automobile and observ ed defendant "leaning forward in the driver's seat," "apparently sleeping." Officer Banker observed: the vehicle "was not moving"; "the keys were in the [ ignition ]"; "the engine was running"; the vehicle "was in the drive position"; and defendant had his "foot on the brake." Office Banker "shouted at [defendant] to wake him up." "After a few seconds," defendant woke up. According to the officer, defendant was "in a very sleepy stage, very confused, [and] he did not make much sense when responding to questions." Defendant held "wax fold s in his right hand" and, when asked what they were, failed to give Officer B anker a "straight answer." Once back-up officers arrived, defendant was "aske d to exit the vehicle to [perform] field sobriety tests." After exiting the vehicle, defendant "had difficulty walking around or standing, he was swayi ng back and forth, and continually moving." Defendant continued to "seem[ ] confused" and did not talk in "complete sentences."7 A- 2157

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Officer Norton instructed defendant to follow his finger as he motioned it from side to side. Defendant could not follow his finger. Officer Banker "read . . . instructions for the wal k-and-turn test from his handbook of . . . traffic violations." Defendant i ndicated that he understood "the instructions." However, he "struggled to get into the initial star ting position." "He was unable to put his left foot on the line and place his right [foot] in front, touching his right heel to his left toe." "He move d his arms for balance, and almost fell over." Defendant was instructed to do the one-leg stand t est.

He briefly put his heels together and his arms at h is side. He then spread his legs completely and bent over to touch the ground like he was stretching. After approximately 30 seconds, he got up, and attempted to do the test again. He was not able to maintain the position he wa s standing in. He did not look at his raised foot, he used both arms for balance, and cro ssed his foot completely on the other side of his body f or balance. He used the ground to try to pick himself up and almost fell over several times. Officer Banker, "based upon his observation and training, was of the opinion that defendant was driving under the influence." Defendant "was placed under arrest and transported to headquarters." He "consented to alcohol testing . . . [and] the Alcotest results indicated a .05 bl ood alcohol content." Sergeant8 A- 2157

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Norton, who had administered the Alcotest, had "no doubt in his mind that [defendant] was impaired." Since defendant "did not appear to be in any condit ion to" drive a motor vehicle and "appeared to be more impaired than exhi bited by the .05 blood
ff alcohol reading," he was transported to undergo an evaluation by Se rgeant Pakovics. Sergeant Pakovics "observed that [defendant had a] slow, low and raspy speech, was very sluggish in movement, had an odor of an alcoholic beverage coming from his breath, [had] bloodshot and watery eyes, and droopy eyelids." Sergeant Pakovics administered the modified Romberg balance test, walk-andturn test and o ne -leg stand test but defendant "swayed and was[ un]a ble to maintain his balance." On the "finger to nose test, [def endant ] touched his nose

on three of six attempts." Moreover, defendant admitt ed to Sergeant Pakovics, that he "had three Bacardis" and to ok " two , five milligram tablets of Percocet and two , three milligram tablets of Lunesta" that day.
III. Defendant was convicted under N.J.S.A. 39:4- 50 of "operat[ing ] a motor vehicle while under the influence of intoxicating l iquor[,] . . . narcotic,9 A- 2157

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hallucinogenic or habit-producing drug[s]." State v. Beal or , 187 N.J. 574, 576 (2006). "[T]he driving while intoxicated statute 'does not require that the particular narco tic [, hallucinogen or habit-producing drug] be identif ied.'" Id. at 589 (quoting State v. Tamburro, 68 N.J. 414, 421 (1975)). "The statute does not define the quantum of narcotics, hallucinogens or habit-producing drugs required to violate this prohibition." Ibid. "[T]he issue is simple: was the defendant 'under the influence' of a narcotic, hall ucinogen or habit producing drug while he operated a motor vehicle." Ibid. In Bealor, our Supreme Court distinguished between al cohol, where "[a] n ordinary citizen is qualified to advance an opinion in a court proceeding that a person was intoxicated because of consumption of al cohol," i d. at 587 (quoting State v. Smith, 58 N.J. 202, 213 (1972)) , and marijuana where "[n]o such general awareness exists as yet with regard to the signs an d symptoms of the condition described as being 'high' on mari [j ]uana." Ibid. Nonetheless, "[h]aving rejected the . . . invitation to place lay opinion testimony regarding marijuana intoxication on the same footing as lay opinion tes timony as to alcohol intox ication," i bid. , the Court still analyzed "whether, in the absence of l ay opinion testimony, the evidence tendered . . . was sufficient to prove tha t10 A- 2157

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defendant was under the influence of marijuana whil e he operated a motor vehicle." Id. at 588. In Tamburro, our Supreme Court considered the statu tory phrase "under the influence" and explained:

[t]he language "under the influence" used in the st atute has been interpreted many times. Generally speakin g, it means a substantial deterioration or dim inution of the mental faculties or physical capabilities of a pers on whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit producing drugs. In State v. Johnson , 42 N.J. 146, 165 (1964), . . . we stated that "under the influence" meant a condition which so affects the judgment or control of a motor vehicle operator as to make it improper for [the operator] to drive on the highway. . . . I n State v. DiCarlo , 67 N.J. 321 (1975), we held that an operator of a motor vehicle was under the influence of a narcotic drug within t he meaning [of the statute] if the drug produced a narcotic effect "so altering his or her normal physical coordination and mental faculties as to render such person a danger to himself [or herself] as well as other persons on the highway." Id. at 328. [Tamburro, 68 N.J. at 420

- 21 .]
I n Bealor , our Supreme Court concluded that "the State proved bey ond a reasonable doubt that defendant 'operate[d] a motor vehicle while under the influence of . . . narcotic, hallucinogenic or habi t-producing drug[s]' in violation of N.J.S.A. 39:4

- 50 ." The Court based its conclusion on the arresting off icer's11 A- 2157

- 21 fact testimony in respect of defendant's erratic an d dangerous driving, his slurred and slow speech, his

" bloodshot and glassy " eyes, his droopy eyelids, his "pale and flushed" face, his " fu mbl[ing] around the center console and his glovebox searching for all h is credentials," or the smell of burnt marijuana on defendant , his sagging knees and the "emotionless stare on his face." [Bealor, 187 N.J. at 590.] Moreover, the arresting officer "on cross-examinati on . . . testified without objection that defendant was intoxicated . . . ." Ibid. "Finally, the State incontrovertibly proved, through qualified experts, the p resence of marijuana in defendant's blood stream . . . ." Ibid. In sum, Bealor "explicitly disavowed" the notion " that the nexus between the facts of intoxication and the cause of intoxica tion can only be proved by expert opinion" t o support a conviction under N.J.S.A. 39:4-50. Cases with similar fact patterns have considered a wide variet y of other corroborative evidence, but usually involve either admissions or physical scientific results. See Tamburro, 68 N.J. at 416-17 (defendant admitted to taking narcotics that day); State v. Franchetta, 394 N.J. Super. 200, 203 (App. Div. 2007) (blood test revealed cocaine metabolites). Here, the Law Division judge conducted a Bealor an alysis. The Law Division judge credited the officers' observations and found : (1) "defendant was12 A- 2157

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asleep in a driver's seat of his motor vehicle which was parked on a public highway blocking traffic," "the key was in the igni tion, the engine was running, the vehicle was in the drive position, and [defenda nt]'s foot was on the brake" ; (2) once defendant "was awaken he was in a very sle epy stage, very confused, did not make much sense when responding to question s ," and was "unable to make complete sentences"; (3) "[ a]fter defendant exited his motor vehicle , he had difficulty walking around or standing, he swaye d back and forth, and continuously moved"; (4) defendant only "partly per formed the walk-and-turn test" ("crossing one foot over the other" and "unab le to walk forward" ) and "the

one -leg stand test" (" put [ ting ] his foot down several times"); (5) defendant "was unable to follow Sergeant Norton's finger with his eyes"; and (6) defendant's "voice [ wa ]s slurred and slow." Furthermore, the Law Division judge credited the o bservations of Sergeant Pakovics, who observed: (1) defendant "di splayed slow, low and raspy speech, was very sluggish in movement, had an odor of an alcoholic beverage coming from his breath, [and had] bloodshot and wat ery eyes, and droopy eyelids"; (2) defendant "was[] [ un ]able to maintain his balance" during "the modified Romberg balance test, walk-and-turn test a nd one-leg stand test"; and13 A- 2157

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(3) on "the finger to nose test, [defendant] touche d his nose on three of six attempts." The State witnesses' observations we re corroborated by other evidence of defendant being under the influence. For example, defendant admitted he took

two , five-milligram tablets of Percocet, a narcotic an algesic; two , threemilligram tablets of Lunesta, a CNS depressant; and dr ank three Bacardis. In addition, defendant's Alcotest reading registered . 05 blood alcohol concentration. The Law Division judge found, "beyond a reasonable doubt , that defendant violated N.J.S.A. 39:4-50 by operating hi s motor vehicle under the influence of alcohol and a narcotic drug." The judge considered "the perception[s] of [the] officers that [defendant] wa s under the influence . . . based upon his speech, appearance, and body movement." F urther, he attributed the cause of defendant's "intoxication to his admission of drinking three Bacardis , and his .05 Alcotest reading, and his admission to consuming Percocet and
Lunesta."
Ou r role "is to 'determine whether the findings made could reasonably have been reached on sufficient credible evidence p resent[ ed ] in the record, ' considering the proofs as a whole." Elbert, 377 N. J. Super. at 8. Here, the Law14 A- 2157

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Division judge's conclusion of guilt is unassailable and supported b y sufficient credible evidence. We affirm the conviction.
IV. Defendant next argues [a] judgment of acquittal in favor of defendant sho uld have been entered in the law division as to the driving while under the influence charge at the end of the [S]tate's case since the [S]tate failed to prove be yond a reasonable doubt that defendant was under the influence when he operated a motor vehicle. We disagree.
A motion for a directed verdict for acquittal is gove rned by Rule 3:18 -1, which requires a judgment of acquittal "if the evid ence is insufficient to warrant a conviction." In evaluating the sufficien cy of the evidence:

the trial judge must determine . . . whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial , and giving the State the benefit of all its favorable testimony as well as all of the favor able inferences which reasonably could be drawn therefro m, a reasonable jury could find guilt of the charge be yond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 458-59 (1967) .] We apply the same standard as the trial court to de cide if the motion should have been granted. State v. Moffa, 42 N.J. 258, 263 (19 64).15 A- 2157

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Consider ing all the evidence, including the significant fact te stimony we have discussed, we are satisfied the judge could re asonably have found defendant guilty beyond a reasonable doubt of operating a "motor vehicle while under the influence of intoxicating liquor, narcoti c, hallucinogenic or habitproducing drug[s]." N.J.S.A. 39:4

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. V. Defendant also argues that the municipal and Law Di vision judges erred by de nying his request to stay h is trial matter pending delivery of the Special Master's decision in Olenowski. Again, we disagree

. In Olenowski , our Supreme Court "adopt[ed] a Daubert- type 3 standard going forward to assess the admissibility of [DRE] expert evidence under N.J.R.E. 702 in criminal and quasi-criminal cases" and "remand[ed] the matter to the Special Master for further proceedings . . . ." State v. Olenow ski , 25 3 N.J. 133, 1 55 (2023). While our Supreme Court await ed delivery of the Special Master's report,
it ordere d: that the motion for a "stay of all proceedings in o ther

courts . . . that raise issues regarding the admiss ibility of [DRE] testimony, which may be potentially affect ed" by the pending appeal is denied. The Court expresses

3 Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U. S. 579 (1993).16 A- 2157

- 21 no view on the merits of any stay application filed in an individual case in Municipal Court or Superior Court by a party to a proceeding involving DRE testimony. [State v. Olenowski, 241 N.J. 65 (2020).] Therefore, the question of whether to stay a partic ular proceeding was left to the respective courts. "We apply the principles set forth in State v. Hayes, 205 N. J. 522, 537- 38 [] (2011), governing a trial court's exercise of its discretion to grant or deny adjournments." State v. Miller, 216 N.J. 40, 47 (2013). "[ W]hen an appellate court reviews a trial court's discretionary determi nation of a defendant's motion for an adjournment , 'there are two conditions which must exist to warra nt' reversal of the conviction." Id. at 66 ( quoting Hayes , 205 N.J. at 539) (quoting Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1952)). "First, 'the judicial action must have been clearly unreasonable in the light of the accompanying and surrounding circumstances.' " Ibid. "Second, the ruling must have prejudiced the . . . " defendant. Ibid. Defendant must have "suffered [a] manifest wrong or injury." Ibid. Here, defendant argues that denial of his stay req uest was:

erroneous as the State's main witness was a [DRE] whose qualifications and analysis of the case were b oth called into question by the defense expert witness. Defendant and his counsel were deprived of the17 A- 2157

- 21 analysis conducted in Olenowski in violation of his Sixth Amendment confrontation right to cross examin e the State's witness and in violation of his Fourtee nth Amendment due process right to a fair trial. However, defendant's argument is misplaced because he was convict ed based upon corroborated observations "that [he] was under the influence [of alcohol, Percocet and Lunesta] while he operated a motor ve hicle." Bealor, 187
N.J. at 574 . As mentioned, Sergeant Pakovics' l ay testimony, about defendant's admissions or his observations of defendant, wa s independent of the sergeant's DRE opinion. His credible testimony wa s important because it provided the factual basis for the Law Division judge to conclud e that defendant use d "alcohol, Percocet and Lunesta" before operating hi s motor vehicle. Additionally, Sergeant Pakovics' testimony also was consistent with the observations of Sergeant Norton and Officer Banker. Therefore, the DRE opinion wa s inconsequential to defendant's convictio n be cause his conviction rest ed on officers' observations and corroborative evidence, not expert opinion. Consequently, the denial of his request for a stay , pending receipt of the Special Master's report on D RE evidence, was neither "unreasonable" nor "prejudicial." Miller, 216 N.J. at 66. Under these circumstances we find no abuse of discretion in the denial of defendant's request for a stay of the trial.18 A- 2157

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Affirmed.