STATE OF NEW JERSEY v. Frank LaGalia

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3391-04T33391-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK LAGALIA,

Defendant-Appellant.

________________________________________________________________

 

Argued December 6, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen

County, Indictment No. BMA-001-11-04.

James B. Seplowitz argued the cause

for appellant (Rem Zeller, attorneys;

Jeffrey B. Steinfeld, of counsel and

on the brief; Mr. Seplowitz, on the

brief).

Brandy B. Galler, Assistant Prosecutor,

argued the cause for respondent

(John L. Molinelli, Bergen County

Prosecutor, attorney; Ms. Galler, of

counsel and on the brief).

PER CURIAM

The Tenafly Municipal Court found defendant Frank LaGalia guilty of speeding, failing to keep right, careless driving, and driving while intoxicated even though his breathalyzer reading was below .10, the legal limit at the time of arrest. Defendant appealed only the driving while intoxicated conviction to the Law Division. After considering defendant's appeal de novo on the record, Judge Conte in a February 2, 2005, written decision confirmed defendant's guilt of driving under the influence. N.J.S.A. 39:4-50.

Defendant appealed to this court arguing the municipal court erroneously admitted his driving record in violation of N.J.R.E. 405, N.J.R.E. 403, and R. 7:7-7(b). In addition, defendant argues that the State failed to prove beyond a reasonable doubt that defendant was driving while intoxicated.

We do not agree that assertion of a law abiding life necessarily opens the door to admission of prior driving offenses. However, even assuming that defendant's driving record was erroneously utilized to establish his guilt in municipal court, defendant's appeal still fails.

Judge Conte, in the Law Division, provided a de novo review of the drunken driving charge. The judge specifically stated that "defendant's prior driving record will not be considered by this Court in determining his innocence or guilt." We reject defendant's suggestion that the municipal court evidential error was so egregious that it could not be purged by the de novo review provided by Judge Conte.

 
This is so especially because our separate review of the record reveals more than adequate observational evidence for Judge Conte to have found defendant guilty beyond a reasonable doubt of driving while intoxicated. Defendant was speeding and crossed the solid double line on three occasions. When pulled over by the police officer, defendant exhibited slurred speech, smelled of alcohol, and had difficulty finding his driving documentation. Defendant admitted to the officer that he "drank too many beers," and failed to perform adequately the three field sobriety tests administered by the officer. We do not agree with defendant that the evidence was as close as he asserts, and in our opinion, there was more than adequate evidence demonstrating that defendant's drinking caused a substantial diminution of his faculties and capabilities. State v. Tamburro, 68 N.J. 414, 421 (1975). In short, defendant has not advanced any reason sufficient for us to reverse the drunken driving conviction.

Affirmed.

(continued)

(continued)

3

A-3391-04T3

December 20, 2005