                                 NOT FOR PUBLICATION WITHOUT THE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-0233-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CARROLL T. QUINN,

     Defendant-Appellant.
___________________________

                   Submitted May 18, 2020 – Decided July 7, 2020

                   Before Judges Sumners and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Sussex County, Municipal Appeal No. 15-08-
                   16.

                   Forster Arbore Velez, attorneys for appellant (John
                   Paul Velez, of counsel and on the briefs).

                   Francis A. Koch, Sussex County Prosecutor, attorney
                   for respondent (Shaina Brenner, Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      In our unpublished decision, we affirmed defendant Carroll T. Quinn's

trial de novo conviction for failure to maintain a lane, N.J.S.A. 39:4-82, but

vacated and remanded his trial de novo conviction for refusal to submit to a

chemical test, N.J.S.A. 39:4-50.4(a) (refusal statute), because the State agreed

with his claim that the Law Division applied the wrong standard of proof – a

preponderance of evidence rather than beyond a reasonable doubt – in finding

him guilty. State v. Quinn, No. A-3558-16 (App. Div. Oct. 12, 2018) (slip op.

at 14). We incorporate by reference the facts surrounding defendant's arrest and

charges arising from his single-car accident in striking a utility pole on

December 25, 2013, at approximately midnight, and the procedural history of

his prior court proceedings contained in that unpublished opinion.

      On remand, a different trial judge presided, Judge Thomas J. Critchley.

After oral argument and consideration of the municipal court trial transcripts,

the judge issued his order and oral decision finding defendant guilty of refusal.

The judge carefully detailed the testimony of Sparta Township Police Corporal

Frank Schomp, finding defendant refused the breath test four times, which were

properly requested "according to protocol." The judge reasoned:

            On its face, it is the refusal and, indeed, the knowing
            refusal aspect of it is straightforward and clear, not just
            beyond a reasonable doubt, but beyond any sensible
            doubt. It's plain language. I will note parenthetically

                                                                          A-0233-19T4
                                        2
            that I do find from the record – I wasn't obviously
            listening to the witnesses directly – but find from the
            record that [Schomp,] who testified regarding these
            points[,] was credible and straightforward in presenting
            what had happened in the sequence of events. Nobody's
            recollection, documentation, or articulation of events is
            perfect, but I do find [him] credible.

      In reviewing the requirements under the refusal statute that a driver submit

to a breath test when requested by law enforcement, the judge determined:

            [T]he State must prove beyond a reasonable doubt all
            the elements of the refusal statute; that is, that the
            officer making the request had probable cause to
            believe the defendant was operating a motor vehicle on
            a public road under the influence, that he had been
            placed under arrest for DWI, that the defendant was
            asked to submit to a breath test in an appropriate
            manner, and, finally, the person made a refusal and, of
            course, we will require a knowing and competent
            refusal.

      The judge found there was probable cause for Schomp to believe

defendant had operated a vehicle under the influence of alcohol 1 based on:

            [T]he direct and commonsense observations that were
            placed into the record.

            In other words, it was a serious crash with the vehicle
            running off the road. It was a one-car crash. It
            appeared, a quick analysis at the scene, that there was
            no particular precipitating factor other than the failure
            of proper operation. In addition, the officer noted an

1
  On trial de novo, the Law Division found defendant not guilty of driving while
intoxicated, N.J.S.A. 39:4-50. Quinn, slip op. at 7.
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                                        3
            odor of alcohol and bloodshot eyes in the course of the
            investigation. I've already noted some of the issues or
            perceptions of the balance and the speech.

            Looking at all the elements of the situation in a
            commonsense way, looking at the nature of the
            accident, the perceived, directly perceived condition of
            the subject – I just want to check one item – the direct
            possession or perception of an odor of alcohol and
            bloodshot eyes.

            Just these items, even leaving aside the field sobriety
            tests, would be sufficient in my view in a commonsense
            way to establish probable cause in the manner required
            by the statute and they are straightforward and
            established in the record beyond a reasonable doubt.

      Addressing the field sobriety tests, the judge noted:

            it is frequently the case that these are not performed, I
            should say administered perfectly, but there was
            sufficient challenges exhibited by the subject in terms
            of balance, speech, following directions, and
            completing the test to amplify, I think, the sense of
            probable cause. I don't think it would be necessary or
            sensible to exclude them totally but certainly the
            cumulative record, I think, is more than sufficient to
            establish . . . the probable cause element beyond a
            reasonable doubt.

      After finding the State proved the second and third elements of the refusal

statute, the judge addressed whether there was a knowing refusal of the test by

defendant. He acknowledged it was possible that defendant's cognition could

have been impacted by the accident, but he found it "unclear" whether such a


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                                       4
hindrance existed despite defendant's expert testimony. The judge noted that

according to Schomp's testimony, at no point during his questioning did

defendant give a "nonsensical" response, and, in the judge's view, defendant was

"in a state of mind beyond a reasonable doubt to give a complete[,] lucid and

binding response[s][.]" Ultimately, the judge found the fourth element was "also

established in our record beyond a reasonable doubt . . ." because defendant

"was, in my view, in a state of mind beyond a reasonable doubt to give a

competent lucid and binding response to questions that were posed."        This

appeal ensued.

      In a single point, defendant argues:

                  THE STATE HAS FAILED TO PROVE
                  BEYOND A REASONABLE DOUBT THAT
                  [DEFENDANT] IS GUILTY OF REFUSAL TO
                  CONSENT TO A BREATH SAMPLE,
                  CONTRARY TO THE PROVISIONS OF
                  N.J.S.A. 39:4-50.4, BECAUSE THERE WAS
                  NO PROBABLE CAUSE TO BELIEVE THAT
                  HE WAS DRIVING A MOTOR VEHICLE
                  UNDER THE INFLUENCE OF ALCOHOL
                  AND BECAUSE HE DID NOT KNOWINGLY
                  REFUSE TO SUBMIT TO THE BREATH TEST
                  BASED UPON THE EFFECTS OF THE
                  MOTOR VEHICLE ACCIDENT FROM
                  WHICH HE WAS SUFFERING.

      Based upon our review of Judge Critchley's trial de novo decision of

defendant's municipal court appeal, we conclude his findings the State proved

                                                                        A-0233-19T4
                                       5
beyond a reasonable doubt that defendant was guilty of the refusal statute was

made on sufficient credible evidence in the record. State v. Gibson, 429 N.J.

Super. 456, 463 (App. Div. 2013) (citing State v. Locurto, 157 N.J. 463, 471

(1999)) ("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. Stas,

212 N.J. 37, 49 (2012) (quoting Locurto, 157 N.J. at 471 (1999)) (holding

appellate review considers "whether the findings made could reasonably have

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

      We also conclude the judge correctly applied his factual findings to the

legal conclusions required to find defendant guilty of the refusal statute. Stas,

212 N.J. at 49 (citing State v. Handy, 206 N.J. 39, 45 (2011)) (ruling appellate

review defers to the trial judge's findings of fact, but "legal determinations is

plenary").

      Accordingly, we affirm substantially for the sound reasons expressed in

the judge's oral decision. And to the extent we have not specifically addressed

any of defendant's arguments, it is because we conclude they are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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