STATE OF NEW JERSEY v. ANTHONY P. WALL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5023-04T25023-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY P. WALL,

Defendant-Appellant.

____________________________

 

Argued March 21, 2006 - Decided October 5, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth

County, 04-142.

John Menzel argued the cause for

appellant.

Patricia B. Quelch, Assistant Prosecutor,

argued the cause for respondent (Luis A.

Valentin, Monmouth County Prosecutor,

attorney; Mark P. Stalford, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

After a trial de novo, defendant was convicted of driving while intoxicated, N.J.S.A. 39:4-50, and four other traffic violations. It was defendant's third conviction for violating the statute; and the Law Division judge, after merging all of the other charges into the conviction for driving while intoxicated, sentenced him, as had the Municipal Court judge, as a third offender in accordance with N.J.S.A. 39:4-50(a)(3). Defendant appeals from his conviction and the sentence imposed.

On appeal, defendant asserts that that the evidence was insufficient to prove beyond a reasonable doubt that he either operated a vehicle under the influence of intoxicating liquor or that he operated a vehicle with a blood alcohol content of 0.08% or more. He also complains that he should have been afforded a jury trial and, if his conviction is affirmed, should have been sentenced as a second offender. We reject those arguments and affirm.

Much of the evidence before the Municipal Court judge was produced in a hearing on defendant's motion to suppress evidence obtained after he had been transported to the police station. When that motion was denied, the parties agreed "to stipulate the suppression hearing into the trial." Thereafter, additional testimony, including testimony concerning the administration and the results of breathalyzer tests, was received.

Here is what the evidence showed. On July 12, 2004, at 11:00 p.m., Officer Ramp of the Spring Lake Heights Police Department was patrolling Highway 71 when he noticed defendant, operating a black BMW, driving at approximately fifty miles per hour in a forty-mile per hour zone. Defendant was following another vehicle. When that car slowed to make a right-hand turn, defendant pulled to the left, crossing entirely over the double yellow center line before moving back into the proper lane. Ramp activated his lights and defendant, after traveling approximately one-quarter mile, pulled off the road and into the parking lot of a 7-11 convenience store.

Ramp approached defendant and asked for his license, registration and insurance card. As defendant sought to produce the documents, Ramp noticed that defendant's movements were slow and that there was "an odor of an alcoholic beverage coming from his breath." Defendant's speech was "slow and slurred" and he was unable, in response to Ramp's request, to recite the alphabet beyond the letter "L." Because it was raining and Ramp believed the parking lot was not a safe environment, he requested that defendant accompany him back to the police station where additional physical tests could be administered. Defendant agreed. Once at the station, defendant was unable to perform a "one-leg stand" or a "heel-to-toe" test. The observations he made at the time defendant was stopped and the results of these tests caused Ramp to conclude that "Mr. Wall was intoxicated and should not have been driving."

Ramp then arrested defendant and secured his consent to the administration of a breathalyzer test. Officer Gunnell testified to the administration of two tests and to the results, each of which showed a blood alcohol content of 0.11%. The defense produced an expert who opined that the tests were improperly administered and that the results were not trustworthy.

The Municipal Court judge accepted Officer Ramp's testimony. When the Law Division judge heard defendant's appeal from the Municipal Court, he appropriately deferred to the Municipal Court judge's credibility findings. See State v. Locurto, 157 N.J. 463, 472-74 (1999). Given that deference, Judge Mellaci concluded, beyond a reasonable doubt, that "this defendant was under the influence of alcohol and unfit to operate a motor vehicle."

Our review of a conviction rendered de novo on the record is limited to a determination of whether there is sufficient credible evidence in the record to support the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). Our independent review of this record convinces us that there was ample evidence in the record to support the conviction.

The conceded violation of the traffic statutes respecting speeding and maintaining lanes provided more than sufficient cause to stop the vehicle. State v. Dickey, 152 N.J. 468 (1998). Probable cause to arrest arose as soon as Officer Ramp approached the vehicle and determined that defendant smelled of alcohol, exhibited slow and slurred speech and was unable to recite the alphabet. See State v. George, 257 N.J. Super. 493 (App. Div. 1992). Thus, although both the Municipal Court and Law Division judges concluded the arrest occurred at the police station, that arrest, even if it occurred at the stop, as defendant contends, was justified. Accordingly, the evidence of defendant's inability to perform physical tests at the station was properly considered. In any event, the record adequately supports Judge Mellaci's finding that defendant voluntarily accompanied Officer Ramp to the police station and that Ramp's decision to ask him to do so was reasonable under the circumstances given the weather and the location of the stop.

We are also convinced that, even in the absence of evidence of the failed physical tests, the conviction was adequately supported. The evidence of defendant's slow, slurred speech; his inability to recite the alphabet; his slow movements; and the odor of alcohol evident on his breath is sufficient to support a finding that defendant had "imbibed to the extent that his physical coordination or mental faculties [were] deleteriously affected." State v. Johnson, 42 N.J. 146, 165 (1964). See State v. Slinger, 281 N.J. Super. 538, 543 (App. Div. 1995); State v. Sisti, 209 N.J. Super. 148, 150 (App. Div. 1986).

Defendant asserts that the judge improperly placed upon him the burden of proving his condition did not result from intoxication. The claim is based on defendant's explanation to Officer Ramp, after failing the physical tests at the police station, that "he had MS." Judge Mellaci acknowledged the statement and analyzed it by saying:

I would note there is nothing in the transcript to aid the Court in determining the extent of the MS, what stage he was in, if he was taking some medications to attempt to control it. It certainly could not have been that severe because he was driving an automobile with a valid driver's license at the time, so I am not satisfied that the MS had an overbearing effect on his ability to perform those tests.

. . .

Furthermore, at the station, the defendant attempted to perform the psychophysical tests and failed these as well. Despite the defendant's condition, there is no evidence brought by the defendant that shows he could not perform these tests, if sober, with this condition, and I alluded to that already. Although the defendant argues that the test results could be attributed to the defendant being tired, nervous or MS, this Court finds the defendant's tests were not affected and the police officer had probable cause to administer the breathalyzer tests.

Defendant argues that the judge impermissibly cast upon him the burden of proving that his disability caused him to fail the tests. We disagree. At the very most, defendant was required to come forward with some evidence that he both suffered from the asserted condition and that the condition was capable of producing the symptoms that would otherwise be proof of intoxication. We assume that had such evidence been forthcoming, the State would have been required to prove, beyond a reasonable doubt, that defendant's behavior was the result of intoxication, not the disease. Placing such a requirement upon this defendant was neither impermissible nor unprecedented. See, e.g., State v. Stein, 70 N.J. 369, 393 (1976) (entrapment); State v. Abbott, 36 N.J. 63, 71-72 (self-defense). There was nothing improper in the judge's resolution of this issue.

The conviction of operating a vehicle while under the influence of intoxicating liquor was more than adequately supported in the record and defendant's contrary assertion has no merit. Given our conclusion, we need not consider the finding of the Law Division judge that the breathalyzer tests were appropriately administered and that defendant was also guilty of the per se violation of the statute by operating a vehicle with a blood alcohol content of 0.08% or higher.

Defendant's last two arguments are purely legal and we decide them without any special deference to the decision of the trial court. See Manalapan Realty L.P v. Tp. Committee, 140 N.J. 366, 378 (1995). Defendant first argues that he was improperly denied a jury trial. The Supreme Court has rejected this claim. See State v. Stanton, 176 N.J. 75, 88 (2003) ("But there is no right to trial by jury of DWI . . . offenses because they are not deemed to be serious enough."). Even the greater penalties imposed on a third offender are insufficient to require a jury trial. State v. Hamm, 121 N.J. 109, 128-30 (1990). We are bound by those decisions. Bell Atl. Network Servs. v. P.M. Video Corp., 322 N.J. Super. 74, 98-99 (App. Div.), certif. denied, 162 N.J. 130 (1999).

Defendant's last argument relates to his sentence. He had been convicted of violating N.J.S.A. 39:4-50 in 1989 and again in 2001. In 2001, pursuant to N.J.S.A. 39:4-50(a)(3), he was sentenced as a first offender. Defendant now asserts that this offense should be treated as a second, rather than a third, offense. That argument has been previously considered and rejected. State v. Burroughs, 349 N.J. Super. 225 (App. Div.), certif. denied, 174 N.J. 43 (2002). We believe Burroughs was correctly decided and decline defendant's request that we depart from its holding.

Affirmed.

 

This information was elicited by the State.

(continued)

(continued)

9

A-5023-04T2

 

October 5, 2006