STATE OF NEW JERSEY v. FILBERT GREEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0138-08T40138-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FILBERT GREEN,

Defendant-Appellant.

__________________________

 

Submitted February 9, 2010 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-03-08.

Kevin C. Watkins, attorney for appellant.

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction for driving while intoxicated, N.J.S.A. 39:4-50 (DWI), and refusing to submit to a breath test, N.J.S.A. 39:4-50.2, which was entered by the Law Division on de novo review. We affirm.

In the early morning hours of September 4, 2007, Newfield Police Officer Seibert observed defendant's vehicle swerving and failing to stay to the right, as it traveled along Northwest Boulevard. After pulling over defendant's vehicle, Seibert spoke to him through the open driver's side window and testified that he smelled alcohol coming from defendant, perceived his eyes to be bloodshot and noticed that his hand movements were slow. Seibert stated that defendant admitted to having had two beers. Defendant, however, denied this when he testified.

Seibert administered field sobriety tests which defendant failed. Defendant was thereupon arrested and transported by police vehicle to police headquarters. There he was asked to submit a breath sample for analysis by the department's Alcotest machine. Seibert, who testified that he is a "certified breathalyzer operator[,] . . . informed [defendant] of his Implied Consent Statement to taking breath samples." Defendant agreed to take the test, but "then he changed his mind quickly and said no." The officer "then read him the second paragraph advising him that if he wants to refuse the breath sample he'll be issued a separate summons for that refusal. At which time he said no again." Seibert added that defendant "informed me that if I was to stop him again it'd be my . . . worst nightmare to pull him over again. And he threatened me I believe bodily harm[]." Seibert further testified that at police headquarters defendant was seated in relatively close proximity to the Alcotest machine and that the machine picked up "ambient alcohol" in the air, registered a reading and then automatically aborted.

Defendant testified that he lived close to the area where the stop occurred and knew that there was generally a police presence in a "gravel pit" along Northwest Boulevard. He stated that he passed the pit, noticed a police car, and suddenly, "the red and blue lights came on, the officer proceeded out." Defendant pulled over and the officer asked for his license, registration and insurance card, which he produced. He stated that the officer advised that he had stopped defendant "for failure to keep to the right." Defendant denied that he was "under the influence of alcohol that night[,]" and further denied that he had consumed any alcohol that night.

The officer ordered defendant out of his car and he complied; he denied having any problem walking or maintaining his balance. He denied doing the field sobriety tests described by Seibert. The "only thing" he did was "lift up [his] left leg and [his] right leg. . . . The rest of this stuff [he] did not do."

Defendant further testified that when he arrived at headquarters he was asked to give a breath sample on the Alcotest machine and he "told the officer [he] would like to have an attorney looked [sic] before [he] could take that right there." He acknowledged that at first he agreed to take the test but then declined because he wanted to consult with an attorney. Defendant stated that he asked the officer if he had a right to have an attorney present, but the officer "really didn't talk." When asked if Seibert advised him "of the consequences of refusal[,]" defendant responded that he "didn't understand the consequences of refusal. . . . He wasn't trying to tell me." Defendant also denied making any threats to the officer, adding that he did not "even know him to threaten him."

On this evidence, the municipal judge found defendant guilty of both offenses and sentenced him to six months in the county jail and suspension of his driver's license for ten years, as well as the appropriate fines and assessments.

On de novo appeal to the Law Division, the judge noted that the municipal judge's decision was based primarily on credibility determinations. As the result of his review of the record, the judge was "satisfied beyond a reasonable doubt that" defendant refused to submit to a breath test after being advised by the police officer of the consequences of such a refusal. The judge therefore, found defendant guilty of the refusal charge. On the same evidence, the judge also found defendant guilty of DWI.

On appeal, defendant raises the following contentions for our consideration:

I.

DEFENDANT'S CONVICTIONS SHOULD BE VACATED FOR FAILURE OF THE ARRESTING OFFICER TO GIVE PROPER ADMONITIONS REGARDING DEFENDANT'S DUTIES TO GIVE BREATH SAMPLES TO ARRESTING OFFICER

II.

DEFENDANT'S CONVICTIONS SHOULD BE VACATED DUE TO IMPROPER ADMISSION OF LAY TESTIMONY ABOUT SCIENCE, OPERABILITY AND CAPABILITIES OF ALCOTEST MACHINE

Having reviewed the record in light of these contentions, we conclude they "are without sufficient merit to warrant discussion in a written opinion[,]" R. 2:11-3(e)(2), other than the following brief comments.

Officer Seibert testified that he "informed defendant of his Implied Consent Statement to taking breath samples." Defendant first agreed then "quickly" changed his mind. The officer "then read him the second paragraph" advising him of the consequences of refusing, namely the issuance of a summons for a separate offense. This procedure was entirely proper. State v. Spell, 196 N.J. 537, 538 (2008).

Regarding defendant's second point, the Law Division judge explicitly disregarded any reference to "alcohol in the air as evidence of guilt[,]" and based his findings primarily upon credibility determinations, to which we defer. State v. Locurto, 157 N.J. 463, 474 (1999). Furthermore, the judge properly noted that evidence of defendant's refusal to submit to a breath test "may be used against [him] in a related drunk driving prosecution . . . ." See State v. Tabisz, 129 N.J. Super. 80, 83 (App. Div. 1974) (defendant's refusal to submit to a breath test "was admissible in evidence and could be the basis of an inference of guilt").

In sum, both the municipal judge and the Law Division judge found credibility to be the determinative factor in their respective decisions. We are bound, as was the Law Division judge, to defer to such "credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).

We conclude that such deference to the two credibility determinations below is appropriate in this case. We affirm substantially for the reasons set forth in the decision rendered from the bench by Judge Robert P. Becker on August 15, 2008.

 
Affirmed.

(continued)

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A-0138-08T4

July 21, 2010