                        NOT FOR PUBLICATION WITHOUT THE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-3147-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FEVZI ARIF,

     Defendant-Appellant.
_____________________________

              Submitted May 9, 2017 – Decided July 31, 2017

              Before Judges Rothstadt and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Municipal Appeal
              No. 6077.

              Levow DWI Law, P.C., attorneys for appellant
              (Evan M. Levow, of counsel and on the brief;
              Michael V. Troso, on the brief).

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Marc A. Festa, Senior
              Assistant Prosecutor, of counsel and on the
              brief).


PER CURIAM

        Defendant Fevzi Arif appeals his conviction for driving while

intoxicated (DWI), N.J.S.A. 39:4-50, following a trial de novo in
the Law Division.        After reviewing the record in light of the

applicable    legal   standards,     we   affirm    substantially        for   the

reasons stated by Judge Ronald B. Sokalski in his oral decision

issued on February 9, 2016.

     The pertinent evidence was set forth in Judge Sokalski's

decision and need not be repeated in detail here.                   On May 14,

2008, Wayne Township Police Officer Jay Arnold pulled defendant's

motor vehicle over after observing his vehicle cross over the

double   yellow   line   while   approaching       Arnold   in   the     opposite

direction, and also while negotiating a turn.                    Upon reaching

defendant's vehicle, Arnold noticed vomit on the driver's side

door.    When he asked for defendant's credentials, he smelled a

strong odor of alcohol and vomit from the interior of defendant's

vehicle and on defendant's breath.           Upon Arnold's questioning,

defendant stated that he had two beers approximately an hour and

a half earlier at a local pub.            Arnold suspected defendant was

intoxicated    and    administered    a   field    sobriety      test.      After

defendant failed the test, he was arrested and taken to police

headquarters where Lieutenant Keith McDermott administered an

Alcotest breathalyzer test.          Defendant registered a .10 blood

alcohol concentration (BAC) and was charged with DWI.

     After making his first municipal court appearance on May 14,

2008, defendant failed to appear for trial for the next two

                                      2                                   A-3147-15T1
scheduled dates.        Trial was eventually conducted on four dates in

2015.      Due to the seven-year trial delay, Arnold and McDermott

could not recall the specifics of defendant's arrest and the

breathalyzer test, and primarily testified from the reports they

authored right after defendant was charged.                Defendant did not

testify but presented the testimony of two experts who challenged

the reliability of the field sobriety test and the administration

of the breathalyzer test.

      On    September    4,   2015,   the    municipal    court   judge     found

defendant guilty of DWI.          Specifically, he determined that the

police officers' testimony was credible, and that the record did

not   support    the    defense   experts'    opinions.      Since   this      was

defendant's third DWI conviction, he was sentenced to enhanced

penalties.      N.J.S.A. 39:4-50(a)(3).

      Upon a trial de novo on the record, Judge Sokalski found

defendant guilty anew.        In his oral decision, the judge found that

the officers' testimony was credible, and there was sufficient

evidence that defendant was guilty of DWI beyond a reasonable

doubt based upon observation and the .10 BAC.             As to the officers'

reliance upon their reports in testifying, the judge concluded

that:

             It was difficult for them to recall . . . this
             routine matter after nearly seven years
             between arrest and trial, and their testimony

                                       3                                  A-3147-15T1
              was given to a large extent pursuant to
              Evidence Rule 406, which is habit, routine and
              practice.   And [N.J.R.E.] 803 (c)(5) record
              and recollection.      Nevertheless[,] their
              testimony was truthful and detailed enough to
              be convincing. It is noted that the delay for
              trial [was] attributed to defendant's failure
              to appear.

The   judge    found    that    the   defense   experts'   opinions     on   the

administration        and     validity   of   the   breathalyzer      test   was

speculative and not supported by the record.

      On this appeal, defendant presents the following points of

argument:

              POINT I
              THE STATE FAILED TO PROVE BEYOND A REASONABLE
              DOUBT THAT DEFENDANT-APPELLANT OPERATED A
              MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL.

              POINT II
              THE STATE FAILED TO DISPLAY THAT THE ALCOTEST
              WAS ADMINISTERED PROPERLY OR THAT THE MACHINE
              WAS FUNCTIONING PROPERLY THEREFORE THE PER SE
              OFFENSE MUST BE DISMISSED.

      Our review of the trial court's factual findings is limited

to whether the conclusions of the Law Division judge "could

reasonably     have    been    reached   on   sufficient   credible    evidence

present in the record." State v. Johnson, 42 N.J. 146, 162 (1964).

Unlike the Law Division, we do not independently assess the

evidence.      State v. Locurto, 157 N.J. 463, 471 (1999).             The rule

of deference is more compelling where, such as here, the municipal

and Law Division judges made concurrent findings.                Id. at 474.

                                         4                              A-3147-15T1
"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."    Ibid. (citing Midler v. Heinowitz,

10 N.J. 123, 128-29 (1952)).      We owe no deference to the trial

judge's legal conclusions.    Manalapan Realty, L.P. v. Manalapan

Twp. Comm., 140 N.J. 366, 378 (1995) (citing State v. Brown, 118

N.J. 595, 604 (1990)).

       Based upon these principles and our review of the record, we

affirm substantially for the reasons stated in Judge Sokalski's

oral   decision.    Defendant's   appellate   arguments   are   without

sufficient merit to warrant further discussion.     R. 2:11-3(e)(2).

       Affirmed.




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