STATE OF NEW JERSEY v. CHRISTINE MAMELKO


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5174-07T45174-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTINE MAMELKO,

Defendant-Appellant.

________________________________


Submitted June 30, 2009 - Decided

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Municipal Appeal

No. 16-2008.

David J. Foley, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Christine Mamelko appeals from the order of the Law Division finding her guilty of driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50. The matter came before the trial court by way of defendant's appeal for a de novo review of the verdict and sentence imposed by the Sayreville Municipal Court. R. 3:23-8.

After reviewing the record developed before the municipal court, Judge Venezia found defendant guilty of DWI. Because this is defendant's second conviction for DWI, Judge Venezia imposed a fine of $1,006, suspended her driving privileges for a period of two years, ordered that defendant install in her car an ignition interlock device for a period of three years, and converted a thirty-day jail sentence imposed by the municipal court to thirty days of community services.

After reviewing the record before us, and in light of prevailing legal standards, we affirm.

Because defendant refused to submit to a breathalyzer test, the State's case consisted entirely of the observations of the arresting officers. These are the salient facts.

Just after midnight on December 16, 2006, Sayreville Police Officer Arthur Walczak responded to a call about a parked car being hit by another car on Lower Oak Street. As he arrived, Walczak saw defendant driving her car in reverse in a "crooked manner." Seeing that defendant was about to collide with a parked car, Walczak drove his patrol car directly behind defendant's car, and blew the horn. Defendant shifted the car to forward, and drove to the end of the dead-end street. Walczak then pulled his car forward and parked directly behind defendant.

As Walczak walked up to defendant's driver-side door, he noticed scratches on the right rear of her car. He then asked defendant whether she had struck a parked car. According to Walczak, defendant denied striking any car, and began to ramble about loosing her keys and cell phone in a nightclub. As she spoke, Walczak detected "a strong odor of alcoholic beverage on her breath."

At this point, Sayreville Police Sergeant Peter Skarzynski arrived at the scene. As Skarzynski approached defendant's driver-side door, Walczak asked defendant to step out of her car. Walczak testified that, as defendant stepped out, she "stumbled a little bit [and stood] with her feet wide apart as if trying to keep her balance"; her eyes were bloodshot and watery; her clothing was mussed; and her eyelids were droopy. She also had difficulty producing her driving credentials.

Skarzynski testified that in response to his questions, defendant admitted that she drank one and one-half tequila mixed drinks at a nightclub sometime before midnight. He described defendant's demeanor as "uneasy on her feet." When Skarzynski asked defendant to perform certain field sobriety tests, she refused, indicating that she was nervous. Based on this record, the officers arrested defendant for DWI.

Upon further inspection, Walczak found a car parked on Lower Oak Street with scratches on the door and a cracked side mirror. According to Walczak, the damages on this car were consistent with the damages he saw on defendant's car.

Defendant presented the testimony of Francis X. Tobey, Jr., a former State Police Trooper who defense counsel offered "as an expert in the area of DWI." After considering the State's objections, the municipal court admitted Tobey's testimony for the limited purpose of offering an opinion on field sobriety tests. Tobey opined that there was insufficient evidence to conclude that defendant was impaired by alcohol at the time of her arrest.

Based on this evidence, Judge Venezia found defendant guilty of DWI. She based her decision on the testimony of officers Walczak and Skarzynski. After extensively reviewing this evidence, Judge Venezia found "based on the cumulative strength of those observations, . . . the State has met its burden of proof that this defendant is guilty of driving while under the influence [of alcohol]."

Defendant now appeals raising the following arguments.

POINT ONE

DEFENDANT MUST BE FOUND NOT GUILTY OF N.J.S.A. 39:4-50 ON DE NOVOREVIEW [SIC] SINCE THE ALLEGED OBSERVATIONS OF THE OFFICER ARE INSUFFICIENT TO ESTABLISH PROFF [SIC] BEYOND A REASONABLE DOUBT.

POINT TWO

THE OFFICER LACKED PROBALBE [SIC] CAUSE TO ARREST MS. MAMELKO BECAUSE HE FAILED TO DETERMINE WHETHER MS. MAMELKO['S] CONDUCT RESULTED FROM THE DELETERIOUS EFFECTS OF ALCOHOL.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Venezia in her oral opinion delivered on June 13, 2008. State v. Locurto, 157 N.J. 463, 471-72 (1999).

Affirmed.


Defendant was also charged and convicted at the municipal court level of reckless driving, N.J.S.A. 39:4-96. The municipal court judge merged this conviction with the DWI offense for purposes of sentencing. Defendant did not challenge this aspect of the case before the Law Division.

On defendant's application, we stayed the monetary penalties pending appeal.

In addition to DWI, defendant was originally charged with refusal to submit to a breath test, N.J.S.A. 39:4-50.2. The municipal court dismissed this charge at the end of the State's case.

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A-5174-07T4

July 28, 2009