STATE OF NEW JERSEY v. GREGORY RUSSO

Annotate this Case


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3776-09T2




STATE OF NEW JERSEY,


Plaintiff-Respondent,


v.


GREGORY RUSSO,


Defendant-Appellant.

______________________________

April 25, 2011


Argued April 11, 2011 - Decided


Before Judges Rodr guez and Grall.


On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

Municipal Appeal No. 003-13-09.


Greggory M. Marootian argued the cause

for appellant.


David A. Malfitano, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Dyanne Veloz Lluch, Assistant Prosecutor, of counsel and on the brief).


PER CURIAM


Following a trial in the municipal court and a trial de novo in the Law Division, defendant Gregory Russo was convicted of driving while intoxicated and refusal to submit to a test of his breath, N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.4a. He was sentenced to pay the following aggregate penalties: a $612 fine; $66 court costs; a $100 VCCB assessment; a $200 Driver Education charge; and a $75 SNSF. In addition, the judge revoked defendant's driver's license for two concurrent seven month periods.

Defendant appeals from his conviction, claiming the State did not prove operation, intoxication or jurisdiction beyond a reasonable doubt and failed to establish that the officer advised him of the consequences of refusing to submit to a test of his breath as required by N.J.S.A. 39:40-50.2. Because the Law Division's findings "could reasonably have been reached on sufficient credible evidence present in the record," we affirm. State v. Johnson, 42 N.J. 146, 157, 162 (1964).

At 6:46 a.m. on December 27, 2008, Officer Eric Leitman of the Fair Lawn Police Department was dispatched to the intersection of Plaza Road and Oak Street in Fair Lawn at the Saddle Brook border on a complaint of a burglary in progress. The only persons present were defendant and the resident who called for the police. A car, later determined to be defendant's, was running and its headlights were on. It was parked on the curb and in a snow bank on the wrong side of the street, facing the wrong direction. Defendant does not live on Plaza Road, but he was leaning on a different car about twenty feet away from his, vomiting and smelling of alcohol. The officer also detected the odor of alcohol in defendant's car and noticed that only one of the floor mats in the car, the one on the driver's side, was wet.

On those observations, defendant was charged with driving while under the influence and taken to police headquarters. There, defendant was read the eleven sections of the "New Jersey Motor Vehicle Commission Standard Statement for Operators of Motor Vehicles." After the statement was read to him, defendant declined to submit to a test of his breath. At headquarters, defendant staggered when he walked, slurred his words when he spoke and had bloodshot and watery eyes. Nevertheless, the officer was confident that defendant understood the "standard statement."

We review the Law Division's determination. Johnson, supra, 42 N.J. at 157. The judge excluded statements defendant made, and we have not included those statements in our recitation of the facts. Taking judicial notice of the location of the intersection of Plaza Road and Oak Street, N.J.R.E. 203(b)(3), the judge determined that location is within Fair Lawn, and the judge determined that the State's direct and circumstantial evidence, together with the reasonable inferences therefrom, established defendant's guilt of both offenses beyond a reasonable doubt.

On appeal defendant raises four issues:

I. THE STATE DID NOT PROVE THAT RUSSO

OPERATED A MOTOR VEHICLE BEYOND A REASONABLE DOUBT. THAT RESULT BELOW (THAT RUSSO OPERATED A MOTOR VEHICLE) WAS NOT REASONABLY REACHED.


II. THE STATE DID NOT PROVE THE ELEMENT OF

JURISDICTION; i.e. THAT THE ALLEGED OFFENSES OCCURRED IN FAIR LAWN.


III. THE STATE FAILED TO ESTABLISH THAT AN

APPROPRIATE "STANDARD STATEMENT" WAS READ TO RUSSO PURSUANT TO N.J.S.A. 39:4-50.2(E) (REQUIRING "A STANDARD STATEMENT, PREPARED BY THE

DIRECTOR . . . [TO] BE READ BY THE POLICE OFFICER TO THE PERSON UNDER ARREST").


IV. THE STATE DID NOT PROVE, BEYOND A

REASONABLE DOUBT, THAT RUSSO WAS UNDER THE INFLUENCE.


We have considered the arguments presented in support of each of these claims and have concluded that all are without sufficient merit to warrant discussion in a written opinion.

R

. 2:11-2(e)(2). Each of the judge's findings "could reasonably have been reached on sufficient credible evidence present in the record" and subject to judicial notice pursuant to N.J.R.E. 203(b)(a). Accordingly, we affirm. Johnson, supra, 42 N.J. at 162.

Affirmed.