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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-2157-21

 Defendant Andrzej Dabek appeals from a February 23, 2022 order of the 

Law Division finding him guilty of driving under the influence, N.J.S.A. 39:4-

50, after conducting a de novo review of the record developed 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 discretion 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 SPECIAL 
3 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 below," 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 credibility 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 consider only "the action of 

the Law Division and not that of the municipal court." State v. Palma, 219 N.J. 

584, 591-92 (2014) (quoting State v. Oliveri, 336 N.J. Super. 244, 251 (App. 

Div. 2001)). The "standard of review of a de novo verdict after a municipal 

court trial is to 'determine whether the findings made could reasonably have 

been reached on sufficient credible evidence presented 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, 162 (1964)). 
4 A-2157-21

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 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). "[T]he rule of deference is 

more compelling where, as in the present case, two . . . courts have [made] 

. . . concurrent findings of fact and credibility determinations." Ibid. Therefore, 

appellate review of the factual and credibility findings of the municipal court 

and the Law Division "is exceedingly narrow." State v. Reece, 222 N.J. 154, 

167 (2015) (quoting Locurto, 157 N.J. at 470). 

II. 

 The State summoned three witnesses to trial: Sergeant Louis Pakovics, 

New Jersey State Police, and Sergeant Kevin Norton and Officer Daniel Banker 

of the Wanaque Police Department.1 The municipal court judge found Sergeant 

1

 The municipal court judge qualified Sergeant Pakovics as a drug recognition 

expert (DRE) and the parties stipulated that defendant'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 Law Division judge found Mr. 
5 A-2157-21

Pakovics credible, noting his "opportunity to observe him during his testimony," 

"his body language," and his "responsive . . . clear and concise" answers to 

questioning.2 Further, the judge found Officer Banker credible, noting 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 court'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 making a right turn onto 

Novakowski's testimony was "non-convincing" considering the video, 

"overreaching" in its criticism of Sergeant Pakovics 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 opinion, the officer's credibility 

was important when considering his lay testimony about defendant's admissions 

and the sergeant's own observations. 
6 A-2157-21

Greenwood Avenue but was "parked there" "blocking traffic." Sergeant Norton 

responded to the call and "observed the vehicle stopped in the middle of the 

road." 

Officer Banker approached the automobile and observed 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 folds in his right hand" and, 

when asked what they were, failed to give Officer Banker a "straight answer." 

 Once back-up officers arrived, defendant was "asked to exit the vehicle to 

[perform] field sobriety tests." After exiting the vehicle, defendant "had 

difficulty walking around or standing, he was swaying back and forth, and 

continually moving." Defendant continued to "seem[] confused" and did not 

talk in "complete sentences." 
7 A-2157-21

 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 walk-and-turn test from his 

handbook of . . . traffic violations." Defendant indicated that he understood "the 

instructions." However, he "struggled to get into the initial starting 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 moved his arms for balance, and 

almost fell over." 

 Defendant was instructed to do the one-leg stand test. 

He briefly put his heels together and his arms at his 

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 was standing in. He did not look at his 

raised foot, he used both arms for balance, and crossed 

his foot completely on the other side of his body for 

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 blood alcohol content." Sergeant 
8 A-2157-21

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 condition to" drive a motor 

vehicle and "appeared to be more impaired than exhibited by the .05 blood 

ffalcohol reading," he was transported to undergo an evaluation by Sergeant 

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 one-leg stand test but defendant "swayed and was[ un]able to 

maintain his balance." On the "finger to nose test, [defendant] touched his nose 

on three of six attempts." Moreover, defendant admitted to Sergeant Pakovics, 

that he "had three Bacardis" and took "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 liquor[,] . . . narcotic, 
9 A-2157-21

hallucinogenic or habit-producing drug[s]." State v. Bealor, 187 N.J. 574, 576 

(2006). 

"[T]he driving while intoxicated statute 'does not require that the 

particular narcotic[, hallucinogen or habit-producing drug] be identified.'" 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, hallucinogen or habit producing 

drug while he operated a motor vehicle." Ibid. 

 In Bealor, our Supreme Court distinguished between alcohol, where "[a]n 

ordinary citizen is qualified to advance an opinion in a court proceeding that a 

person was intoxicated because of consumption of alcohol," id. 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 and 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 testimony as to alcohol 

intoxication," ibid., the Court still analyzed "whether, in the absence of lay 

opinion testimony, the evidence tendered . . . was sufficient to prove that 
10 A-2157-21

defendant was under the influence of marijuana while he operated a motor 

vehicle." Id. at 588. 

In Tamburro, our Supreme Court considered the statutory phrase "under 

the influence" and explained: 

[t]he language "under the influence" used in the statute 

has been interpreted many times. Generally speaking, 

it means a substantial deterioration or diminution of the 

mental faculties or physical capabilities of a person 

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. . . . In 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 the 

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.] 

 In Bealor, our Supreme Court concluded that "the State proved beyond a 

reasonable doubt that defendant 'operate[d] a motor vehicle while under the 

influence of . . . narcotic, hallucinogenic or habit-producing drug[s]' in violation 

of N.J.S.A. 39:4-50." The Court based its conclusion on the arresting officer's 
11 A-2157-21

fact testimony in respect of defendant's erratic and 

dangerous driving, his slurred and slow speech, his

"bloodshot and glassy" eyes, his droopy eyelids, his 

"pale and flushed" face, his "fumbl[ing] around the 

center console and his glovebox searching for all his 

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-examination . . . testified without 

objection that defendant was intoxicated . . . ." Ibid. "Finally, the State 

incontrovertibly proved, through qualified experts, the presence 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 intoxication can only be proved by 

expert opinion" to support a conviction under N.J.S.A. 39:4-50. Cases with 

similar fact patterns have considered a wide variety 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 analysis. The Law 

Division judge credited the officers' observations and found: (1) "defendant was 
12 A-2157-21

asleep in a driver's seat of his motor vehicle which was parked on a public 

highway blocking traffic," "the key was in the ignition, the engine was running, 

the vehicle was in the drive position, and [defendant]'s foot was on the brake"; 

(2) once defendant "was awaken he was in a very sleepy stage, very confused, 

did not make much sense when responding to questions," and was "unable to 

make complete sentences"; (3) "[a]fter defendant exited his motor vehicle, he

had difficulty walking around or standing, he swayed back and forth, and 

continuously moved"; (4) defendant only "partly performed the walk-and-turn 

test" ("crossing one foot over the other" and "unable 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 observations of 

Sergeant Pakovics, who observed: (1) defendant "displayed 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 watery eyes, and droopy 

eyelids"; (2) defendant "was[] [un]able to maintain his balance" during "the 

modified Romberg balance test, walk-and-turn test and one-leg stand test"; and 
13 A-2157-21

(3) on "the finger to nose test, [defendant] touched his nose on three of six 

attempts." 

The State witnesses' observations were corroborated by other evidence of 

defendant being under the influence. For example, defendant admitted he took 

two, five-milligram tablets of Percocet, a narcotic analgesic; two, threemilligram tablets of Lunesta, a CNS depressant; and drank 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 his motor vehicle under the 

influence of alcohol and a narcotic drug." The judge considered "the 

perception[s] of [the] officers that [defendant] was under the influence . . . based 

upon his speech, appearance, and body movement." Further, 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." 

Our role "is to 'determine whether the findings made could reasonably 

have been reached on sufficient credible evidence present[ed] in the record,' 

considering the proofs as a whole." Elbert, 377 N.J. Super. at 8. Here, the Law 
14 A-2157-21

Division judge's conclusion of guilt is unassailable and supported by sufficient 

credible evidence. We affirm the conviction. 

IV. 

Defendant next argues 

[a] judgment of acquittal in favor of defendant should 

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 beyond 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 governed by Rule 3:18-1, 

which requires a judgment of acquittal "if the evidence is insufficient to warrant 

a conviction." In evaluating the sufficiency 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 favorable 

inferences which reasonably could be drawn therefrom, 

a reasonable jury could find guilt of the charge beyond 

a reasonable doubt. 

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

We apply the same standard as the trial court to decide if the motion should have 

been granted. State v. Moffa, 42 N.J. 258, 263 (1964). 
15 A-2157-21

 Considering all the evidence, including the significant fact testimony we 

have discussed, we are satisfied the judge could reasonably have found 

defendant guilty beyond a reasonable doubt of operating a "motor vehicle while 

under the influence of intoxicating liquor, narcotic, hallucinogenic or habitproducing drug[s]." N.J.S.A. 39:4-50. 

V. 

Defendant also argues that the municipal and Law Division judges erred 

by denying his request to stay his trial matter pending delivery of the Special 

Master's decision in Olenowski. Again, we disagree. 

In Olenowski, our Supreme Court "adopt[ed] a Daubert-type3 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. Olenowski, 253 N.J. 

133, 155 (2023). 

While our Supreme Court awaited delivery of the Special Master's report, 

it ordered:

that the motion for a "stay of all proceedings in other 

courts . . . that raise issues regarding the admissibility 

of [DRE] testimony, which may be potentially affected" 

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 particular 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 determination of a defendant's motion 

for an adjournment, 'there are two conditions which must exist to warrant' 

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 request was: 

erroneous as the State's main witness was a [DRE] 

whose qualifications and analysis of the case were both 

called into question by the defense expert witness. 

Defendant and his counsel were deprived of the 
17 A-2157-21

analysis conducted in Olenowski in violation of his

Sixth Amendment confrontation right to cross examine 

the State's witness and in violation of his Fourteenth 

Amendment due process right to a fair trial. 

However, defendant's argument is misplaced because he was convicted

based upon corroborated observations "that [he] was under the influence [of 

alcohol, Percocet and Lunesta] while he operated a motor vehicle." Bealor, 187 

N.J. at 574. As mentioned, Sergeant Pakovics' lay testimony, about defendant's 

admissions or his observations of defendant, was independent of the sergeant's 

DRE opinion. His credible testimony was important because it provided the 

factual basis for the Law Division judge to conclude that defendant used 

"alcohol, Percocet and Lunesta" before operating his motor vehicle. 

Additionally, Sergeant Pakovics' testimony also was consistent with the 

observations of Sergeant Norton and Officer Banker. 

Therefore, the DRE opinion was inconsequential to defendant's conviction 

because his conviction rested 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 DRE 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-2157-21

Affirmed.