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Date: 07-15-2016

Case Style: STATE OF NEW JERSEY VS. SANGSICK KYEONG

Case Number: A-1312-14T2

Judge: Carmen Messano

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Gurbir S. Grewal, Acting Bergen County Prosecutor, Elizabeth R. Rebein, Special Deputy Attorney General/Acting Assistant Prosecutor

Defendant's Attorney:

Scott Finckenauer

Description: On July 13, 2012, at approximately 6:45 a.m., Palisades
Interstate Parkway Police Lieutenant Jesse Cohen was driving to
work when he observed an altercation between defendant and his
girlfriend, next to a parked car at Alpine Lookout. Cohen
parked and exited his vehicle, and proceeded to separate the
couple. He then called police headquarters for back-up.
Sergeant Larry Barcza responded to Cohen's request. The
officers smelled alcohol on defendant's breath, observed his
eyes were watery and blood shot, and saw that he had difficulty
standing still. It was determined that defendant had been
driving and field sobriety tests were conducted. After failing
the tests, defendant was arrested for DWI and taken to police
headquarters.
Defendant was further questioned with the assistance of a
Korean interpreter, Fort Lee police officer Anthony Kim.
Alcotest test conducted by Palisades Interstate Parkway Police
Sergeant Joseph LanFrank revealed defendant had a 0.14 blood
alcohol concentration (BAC) and he was charged with DWI.1
1 Defendant was also charged with kidnapping and aggravated assault. The charges were later downgraded to a disorderly persons offense, and were subsequently dismissed in municipal court.
A-1312-14T2 3
At trial, the parties stipulated to the Alcotest results,
and that the sole issue was limited to operation or intent to
operate. LanFrank, Barcza, and Cohen testified for the State
regarding defendant's operation of the vehicle and defendant's
understanding of their questioning in English.
LanFrank testified regarding the Alcotest test he
conducted, and his belief that defendant was intoxicated.
Defendant told him that he was learning English. Thus, LanFrank
showed defendant a video version of the Standard Statement for
Motor Vehicle Operators in Korean.
According to Barcza, although defendant spoke "broken
English," defendant was able to carry on a conversation with him
and defendant understood Barcza's instructions given during the
field sobriety tests. Barcza concluded that defendant drove his
vehicle based on defendant's admission that he drove the vehicle
from Fort Lee, where he lived, to Alpine Lookout. Barcza
testified that the vehicle's keys and defendant's wallet were
located by another officer. He did not specifically know where
they were found. There was no evidence that defendant's
girlfriend had operated the vehicle. He acknowledged that he
could not speak to her because she did not understand English.
Cohen testified that he spoke extensively with defendant at
headquarters without any difficulty concerning his activities
A-1312-14T2 4
before and after he arrived at Alpine Lookout. Defendant told
Cohen in English that he drove his vehicle to Alpine Lookout
after driving to pick up his girlfriend in Flushing, Queens,
where she lived, and then going out to eat at a restaurant.
Defendant stated he drove to Alpine Lookout because it is a
beautiful location and he was trying to resolve a personal
matter with his girlfriend. According to Cohen, the vehicle
keys were in the ignition. He could not recall where
defendant's wallet was in the car.
Cohen also indicated that he questioned defendant with the
aid of Kim's Korean interpretation. He could not recall all the
questions he asked defendant with or without Kim's assistance.
Since Cohen had no knowledge of Korean language, he did not know
whether Kim's translation was accurate. Kim did not testify,
and a video of the questioning was not admitted into evidence.
Defendant testified on his own behalf with the aid of a
Korean interpreter. He stated that he moved to the United
States from Korea three years and five months prior to trial.
He testified that he understood little English. He testified
that his girlfriend decided to drive the vehicle after he drank
beer when they had dinner at a restaurant in New York. He
contended the police misunderstood him about who drove the
vehicle to Alpine Lookout. Defendant contends that he told
A-1312-14T2 5
police that "we drove the car," meaning they were both in the
car, but that his girlfriend was the driver. Defendant stated
his girlfriend was not available to testify because she returned
to Korea.
The municipal court judge reserved decision. Approximately
two weeks later, he issued an oral decision finding beyond a
reasonable doubt that defendant was guilty of DWI. The judge
found the testimony of the police officers was credible, and
defendant's testimony was not. He ruled that defendant's
statements in English and Korean that he drove his vehicle to
Alpine Lookout were admissible under N.J.R.E. 803(b)(4).
Citing State v. Guerrido, 60 N.J. Super. 505 (App. Div.
1960), the judge also found there was circumstantial evidence
that defendant operated the vehicle. The judge found that it
was inconceivable that the girlfriend, who was on her knees,
crying and very upset when Cohen saw her, drove defendant's
vehicle with defendant in the passenger seat from New York, over
the George Washington Bridge, onto the Palisades interstate
Parkway and then to Alpine Lookout. Defendant's request to stay
the decision pending appeal was granted.
Defendant appealed to the Law Division, where the judge
rendered an oral decision upholding defendant's municipal court
conviction. Applying State v. Locurto, 157 N.J. 463, 475
A-1312-14T2 6
(1999), the judge determined that the record supported the
municipal court's credibility findings that although English was
not defendant's native language, he sufficiently understood
English to state to the police that he drove his vehicle to
Alpine Lookout. Citing State v. Ebert, 377 N.J. Super. 1, 11,
(2005), the judge found that operation can be proven by
defendant's admission. The judge stayed the decision pending
appeal.
Before us, defendant contends the DWI conviction must be
reversed because sufficient evidence of defendant's operation of
the vehicle was not presented. Specifically, he contends his
alleged admission to operation was not admissible evidence
pursuant to N.J.R.E. 803(b)(4). He further argues his
statements were unreliable due to his language barrier. He
maintains this was evident from: the use of Kim as an
interpreter; LanFrank's advising defendant of his rights by
showing him a video in defendant's native Korean language; and
defendant's use of an interpreter during his municipal court
testimony. Defendant further argues that the Law Division
misunderstood or misinterpreted the State's testimony to
establish circumstantial evidence of defendant's operation of
the vehicle. Neither Barcza nor Cohen testified where
defendant's wallet and vehicle key were found.
A-1312-14T2 7
Our scope of review 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). The two-court rule provides
that we "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, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10
N.J. 123, 128-29 (1952)).
Appellate courts give substantial deference to a trial
judge's findings of fact. Cesare v. Cesare, 154 N.J. 394, 411
12 (1998) (citing Rova Farms Resort v. Investors Ins. Co., 65
N.J. 474, 484 (1974)). These findings should only be disturbed
when there is no doubt that they are inconsistent with the
relevant, credible evidence presented below, such that a
manifest denial of justice would result from their preservation.
Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484). 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)).
Applying these principles, we conclude the Law Division's
findings that defendant drove his vehicle to Alpine Lookout
while intoxicated is supported by the credible evidence in the
A-1312-14T2 8
record. Despite defendant's contention that he did not
understand English, the trial court's assessment that Barcza and
Cohen gave credible testimony that, defendant understood their
questions prior to the field sobriety tests and that he admitted
he drove his vehicle, is entitled to our deference and is
sufficient to prove operation of the vehicle. Ebert, supra, 377
N.J. Super. at 9-10 (operation may be proven by defendant's
admission).
We agree with defendant's contention that his statements
were not admissible pursuant to N.J.R.E. 803(b)(4), which
provides that "a statement by the party's agent or servant
concerning a matter within the scope of the agency or
employment, made during the existence of the relationship" is
admissible if offered against the party. However, such
statements were admissible under N.J.R.E. 803(c)(25), as
statements against interest.2
In addition, we discern no reason to disturb the Law
Division's finding that there was circumstantial evidence of
defendant's operation where the distraught demeanor of his
girlfriend suggested that she had not driven defendant's vehicle
from New York to New Jersey. Ebert, supra, 377 N.J. Super. at
2 The Law Division's decision did not specify what evidentiary rule it applied in determining that defendant's statements that he drove the vehicle were admissible.
A-1312-14T2 9
11 (operation can be proven by "observation of the defendant in
or out of the vehicle under circumstances indicating that the
defendant had been driving while intoxicated") (citations
omitted).

Outcome:

In sum, the Law Division thoroughly reviewed the record and we are satisfied there is sufficient credible evidence in the
record to substantiate its findings that defendant was operating
his car while intoxicated.
Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:

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