STATE OF NEW JERSEY v. RAPHAEL J. OSHEROFF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0191-05T10191-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAPHAEL J. OSHEROFF,

Defendant-Appellant.

_______________________________

 

Submitted March 27, 2006 - Decided April 18, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Union County, Docket No. 5756.

Andrew Seewald, attorney for appellant.

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Steven J. Kaflowitz,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress the results of two breathalyzer readings of 0.10 and 0.11, defendant, Raphael J. Osheroff, entered a conditional plea of guilty in the municipal court to driving while intoxicated (DWI), N.J.S.A. 39:4-50. R. 7:6-2(c). Defendant appealed to the Law Division challenging the legality of his arrest for lack of probable cause. After a hearing de novo on the record, R. 3:23-8(a), defendant was found guilty of violating N.J.S.A. 39:4-50 and, because this was his second DWI conviction, he was sentenced to two years loss of driving privileges, forty-eight consecutive hours in the Intoxicated Drivers Resource Center, thirty days of community service, a $500 fine and other appropriate fees and penalties. Defendant appeals, and we affirm.

The sole issue on appeal is the validity of defendant's arrest. According to the State's proofs, on December 5, 2004, at approximately 6:15 p.m., Cranford Police Officer Donald Zsak was dispatched on a 9-1-1 report of a possible drunk driver in a light brown Mercury Mountaineer traveling northbound on Centennial Avenue. At its intersection with South Avenue, Zsak observed defendant's vehicle, which matched the radio description, on the wrong side of the road stopped at a red light. As defendant proceeded to turn onto South Avenue, his vehicle swayed right and left, both in and out of the roadway, having significant difficulty maintaining a lane. After about one-quarter of a mile, defendant's vehicle turned onto Walnut Avenue where it was pulled over to the curb by Zsak, who had activated his patrol car's overhead lights and siren.

Zsak detected a strong odor of alcohol on defendant's breath and saw that he was disoriented. Defendant even had difficulty taking off his seatbelt, and once he exited the car on command, Zsak felt it necessary to put his hands on defendant, as the officer "was unsure if he was just going to fall right out in the street or whatever." Obviously experiencing balance problems, defendant failed several field physical sobriety tests. When asked to walk heel-to-toe on an imaginary straight line, defendant fell to both sides of the line. He was then asked to stand heel-to-toe with his right foot in front of the left, but was unable to complete this test on two attempts. And when asked to recite the alphabet, defendant could not get past the letter "P" on two attempts.

In response to Zsak's inquiry, defendant said he was going to his home on Hamilton Avenue, but was unsure of where he was. When asked then why he was in the present location, as it was not near Hamilton Avenue, defendant responded that he should not have mixed alcohol with his medication for depression.

Defendant was arrested for DWI. A search of his vehicle uncovered numerous party/airline bottles of vodka and a prescription for Dexedrine. A breathalyzer test was administered at headquarters, which registered readings of 0.10 and 0.11.

Defendant's account was completely different. He denied being in the wrong lane at the stop light or, thereafter, veering in and out of his lane on South Avenue. According to defendant, he was going to a religious service at Temple Beth El on Walnut Avenue, to observe the anniversary of his father's death, and, therefore, denied telling Zsak he was heading home and got lost. In fact, Paula Singer, with whom defendant lives, testified that defendant told her earlier in the day that he would be going to synagogue before returning home. Defendant also denied admitting mixing alcohol and Dexedrine or being requested to recite the alphabet.

In denying defendant's motion to suppress evidence of his breathalyzer results, the Law Division judge stated:

And the totality of circumstances are, in this case, the following. (A) your client indeed was found facing the wrong way at a traffic light. (B) your client, I find, the credible evidence is was indeed having difficulty driving a car on South Avenue going west weaving, having difficulty maintaining his lane.

(C) the officer had a right to stop him. (E) had a right to interview your client. (F) your client had a odor of alcoholic beverage, which was indeed harsh and strong, and following the psychophysical tests, the ABC's, the totality that the officer, which I think he was right, he had a right to arrest him for a violation of motor vehicle law, Title 39:50, I think it is, DWI. He had a right to ask your client to submit to a blood alcohol reading. And therefore, the issue of the legality of the stop, in my view, is quite clear that the stop is indeed legal.

There was probable cause for the officer to believe that your client was operating a motor vehicle while intoxicated. Therefore, since that's the only issue before me, and since I have again denied the motion to suppress, the DWI plea of guilty is maintained, and the appeal is denied.

On appeal, defendant reiterates his challenge to the legality of his arrest, raising the following issues:

I. THE STATE ENGAGED IN POLICE MISCONDUCT-THEREFORE SUPPRESSION OF THE EVIDENCE SHOULD BE GRANTED.

A. THE APPROPRIATE STANDARD OF REVIEW IS PLENARY.

B. THE STATE'S WITNESS ENGAGED IN MISCONDUCT IN VIOLATION OF DEFENDANT'S NEW JERSEY AND FEDERAL CONSTITUTION RIGHTS.

C. THE STATE VIOLATED THE BRADY RULE, THEREFORE THIS CASE MUST BE DISMISSED.

II. THE COURT FAILED AT A MINIMUM TO APPLY AN ADVERSE INFERENCE TO THE STATE'S WITNESS OR A FALSE IN ONE FALSE IN ALL CHARGE TO THE STATE'S WITNESS.

A. THE STATE'S WITNESS WAS PROVEN TO HAVE FABRICATED EVIDENCE AND TESTIMONY AND THEREFORE WAS NOT CREDIBLE. THEREFORE THE STATE DID NOT MEET ITS EVIDENTIARY BURDEN IN ESTABLISHING REASONABLE ARTICULABLE SUSPICION AND PROBABLE CAUSE.

III. THE COURT'S DECISION WAS AGAINST THE WEIGHT OF THE EVIDENCE.

A. THE COURT DID NOT WEIGH THE EVIDENCE ON A TRIAL DE NOVO BASIS BUT APPLIED AN UNDULY DEFERENTIAL STANDARD AND ITS SUPPORTING FINDINGS OF FACT WERE ARBITRARY AND CAPRICIOUS.

1. WHEREAS THE MUNICIPAL COURT FOUND DISCREPANCIES IN THE 0OFFICER'S TESTIMONY-ALBEIT MINOR ONES-THE SUPERIOR COURT WITH THE AID OF THE TRANSCRIPT AND SPECIFIC IDENTIFICATION OF MORE THAN MINOR DISCREPANCIES ADDED CREDIBILITY TO THE OFFICER'S TESTIMONY.

We have reviewed the entire record in this matter and conclude there was substantial credible evidence to sustain the Law Division judge's factual and legal conclusions. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). Defendant's contentions, including that based on the failure to videotape the motor vehicle stop, are all without merit. R. 2:11-3(e)(2); see also State v. Cook, 179 N.J. 533, 561-62 (2004). Accordingly, we affirm substantially for the reasons set forth by the Law Division judge in his oral opinion of August 12, 2005.

 
Affirmed.

(continued)

(continued)

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A-0191-05T1

April 18, 2006