STATE OF NEW JERSEY v. GEORGE KORPITA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3847-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

GEORGE KORPITA,

Defendant-Appellant.

__________________________________

March 2, 2011

Argued January 26, 2011 - Decided

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 06-03-09.

George T. Daggett argued the cause for appellant (Daggett, Kraemer, Kovach & Gjelsvik, attorneys; Mr. Daggett, on the brief).

Gregory R. Mueller, First Assistant Sussex County Prosecutor, argued the cause for respondent (David J. Weaver, Sussex County Prosecutor, attorney; Mr. Mueller, of counsel and on the brief).

PER CURIAM

Defendant George Korpita appeals his convictions for a second driving while intoxicated (DWI) offense, N.J.S.A. 39:4-50, refusal to submit to a chemical test (Refusal), N.J.S.A. 39:4-50.4(a), and failure to keep right N.J.S.A. 39:4-82. The Law Division sentenced defendant after a de novo trial to a two-year license revocation, forty-eight hours at an Intoxicated Driver Resource Center (IDRC) program, and thirty days community service for the DWI; and a consecutive two-year license revocation for Refusal. The judge merged the failure to keep right with the DWI and imposed appropriate fines and penalties. Defendant presents the following arguments:

POINT ONE

THERE IS INSUFFICIENT, CREDIBLE EVIDENCE TO JUSTIFY THE FINDINGS OF THE TRIAL COURT AND SUPERIOR COURT, AND THE DOCTRINE OF "WRONGNESS" REQUIRES THIS COURT TO REVIEW THE RECORD AND GRANT THE MOTION TO SUPPRESS AND/OR FIND THE DEFENDANT NOT GUILTY OF THE CHARGES.

POINT TWO

BOTH LOWER COURTS ABUSED THEIR DISCRETION BY NOT ADMITTING INTO EVIDENCE THE VARIOUS PHOTOGRAPHS AND TOWNSHIP MAP INTRODUCED BY DEFENDANT AT TRIAL, AND SUCH ABUSE RESULTED IN A DENIAL OF JUSTICE

Based on our review of the record and applicable law in light of the contentions advanced by defendant, we affirm.

I

The following facts were developed at the municipal court suppression hearing and trial. Sparta Township Police Officer Joseph Pensado1 testified that on February 15, 2008, at approximately 10:17 p.m., he received a 9-1-1 dispatch that the manager of Zoe's restaurant reported intoxicated patrons were leaving Zoe's in a Maserati and another car. The manager described the Maserati and provided its license plate number. In response, Pensado drove toward the restaurant, parked at a nearby intersection, and waited a few minutes until he saw the Maserati turn onto Green Road. Pensado closed the distance between his patrol vehicle and the Maserati to approximately two car lengths, then followed it for approximately twenty-two minutes on Green Road and Route 181. Defendant does not dispute that he was the Maserati's driver.

While following defendant on Green Road, Pensado saw the Maserati cross into the left-hand side of the road three times. The first time, defendant returned and stopped on the right side of the road, where Pensado stopped about two car lengths behind him and waited for about fifteen seconds until defendant again began to drive on Green Road. As Pensado followed, he saw defendant's Maserati cross into the oncoming lane a second and third time, each time causing westbound cars to move to the far right to avoid defendant's car.

Defendant turned from Green Road onto Route 181 then abruptly turned into a saloon parking lot. Pensado thought it was unsafe to turn into the parking lot, so he passed the saloon and looked for a safe place to turn around. When defendant drove out of the lot, Pensado followed and stopped him in the parking lot of a restaurant in Jefferson. Pensado explained that it would have been unsafe to stop defendant on Green Road because it is an "unmarked, narrow, windy, hilly roadway."

During cross-examination, defense counsel marked as exhibits a Sparta Road Map, a map of Jefferson, and photographs of different locations that Pensado had identified. Pensado testified about the exhibits and placed marks on them in response to defense questioning, but the municipal court judge refused to admit them into evidence because they had not been provided to the prosecutor.

Defendant called two witnesses at the suppression hearing. Kimberly Breazzano disputed Pensado's testimony. She testified that she and defendant were among a group of six that dined at Zoe's before she left with defendant in his Maserati. She denied that defendant drove erratically or crossed into the oncoming lane while on Green Road. However, while defendant was driving on Green Road, a car with bright headlights began tailgating defendant's car. Breazzano asked defendant to pull over, which he did, but the other car stopped behind them. Defendant waited for a few minutes then resumed driving on Green Road and the tailgating car followed him. After defendant turned from Green Road onto Route 181, Breazzano asked him to pull over because the car was still tailgating, and defendant pulled into a restaurant parking lot. The tailgating car continued on Route 181 and she noticed that it was a police car. Defendant pulled out of the lot and was subsequently stopped by Pensado.

Defense witness Scott DeVito testified he dined at Zoe's with the group that included defendant, but left with another driver. The Sparta police stopped the other driver, but released him. DeVito testified defendant ordered two martinis at dinner, but complained about one of them and would not drink it.

Based on that evidence, the municipal court judge denied defendant's suppression motion and the parties proceeded to trial. Pensado was recalled and recounted the events that resulted in his stopping defendant. After making the stop, Pensado asked defendant for his credentials and explained that he stopped defendant for various motor vehicle violations. Detecting a strong odor of alcohol emanating from defendant's mouth, Pensado had defendant perform field sobriety tests, which were recorded from a camera in Pensado's patrol vehicle.

When Pensado had defendant recite the alphabet, he noticed defendant's speech was slow and slurred. Defendant failed the "one-leg stand" test, by swaying the entire time, dropping his foot four times, and stumbling forward. He also failed the "finger to nose" test, and the "walk and turn" test. The only statement defendant made about the field sobriety tests was that one of his legs was shorter than the other and he was bow-legged. Pensado concluded that defendant was under the influence of alcohol, arrested him, and transported him to the police station to administer a chemical breath test.

At the station, Pensado had defendant sign a Miranda2 form and read him the New Jersey Motor Vehicle Commission Standard Statement for Operators of Motor Vehicles concerning the obligation to give breath samples. Sergeant John Paul Beebe entered the room to administer an Alcotest, and shortly thereafter, Pensado observed defendant begin to belch repeatedly, a problem defendant attributed to indigestion from eating escargot at dinner. Pensado testified that defendant never belched from the time of the stop until Beebe attempted to take the breath sample.

According to Beebe, if a defendant belches before giving a breath sample, the Alcotest operator must wait twenty minutes before administering the test. Beebe testified defendant belched seventy-eight times during his attempt to administer the Alcotest and that the timeframes between belches ranged from fifteen seconds to approximately one minute. During one interval, defendant asked Beebe "what it would take for me to leave here with just a careless driving summons." After an hour and fifteen minutes, Beebe terminated the testing and directed Pensado to charge defendant with Refusal, then spoke to defendant who was no longer belching. Beebe offered to have an ambulance take defendant to a hospital to draw blood, but defendant declined. Finally, Beebe testified that defendant, a former municipal court judge, would know that if he belched the Alcotest could not be administered.

Defendant called four witnesses and testified on his own behalf. Dr. Andrew Grossman, an emergency room physician, testified that he dined with defendant at Zoe's, defendant had "maybe one drink" during dinner, and defendant "did not appear to be under the influence." He also testified that during dinner defendant sent back a glass of wine, there was some altercation about food, and the waiters and the establishment were not happy with them. During cross-examination, Grossman conceded that his recollection was vague and though he thought the group ordered two bottles of wine, it was possible that they ordered more.

Breazzano and DeVito testified again during the trial. Breazzano testified defendant possibly had two drinks but was not under the influence when they left the restaurant. DeVito testified that defendant had a martini, possibly two sips of another martini, and possibly a sip of wine. The fourth witness, Lois Duma, testified that defendant had a martini when he first arrived, she was "pretty sure" the group ordered "[a]t least three bottles of wine," and they were at the restaurant for a "couple hours."

Defendant testified that he drank a pomegranate martini, a few sips from another martini, and a sip of wine that he didn't like. He refused a drink he didn't like, aggravating the bartender. He did not feel "under the influence or incapable of driving a motor vehicle" when he left the restaurant.

Defendant denied that his ability to drive was impaired, believed he did fine on the alphabet field sobriety test, and explained that his one shorter leg caused a problem with some of the balance tests. "[A]fter [he] was . . . brought into the police station, [his] stomach started churning up and as [he] was sitting there getting more nervous . . . [he] started burping." He denied consciously burping to avoid the Alcotest and described Beebe as a very arrogant individual who did not treat him "very nicely." He characterized Beebe's offer to take him to the hospital as "sarcastic" and denied Beebe told him he could have a blood test taken at a hospital.

The municipal court judge convicted defendant of DWI, Refusal, failure to keep right, and careless driving. On the DWI conviction, the municipal court judge suspended defendant's driver's license for two years, ordered defendant to attend an IDRC for forty-eight hours and to perform thirty days of community service, and imposed appropriate fines and penalties. The municipal court judge also imposed but suspended a forty-five day jail sentence. On the Refusal, the municipal court judge sentenced defendant to a seven-month license suspension consecutive to the DWI suspension, and imposed appropriate fines and penalties. Finally, the municipal court judge merged the careless driving with the failure to keep right and fined defendant for the latter offense.

Upon de novo review, the Law Division denied defendant's suppression motion, convicted defendant of DWI, Refusal, and failure to keep right, and merged the latter offense with the DWI. The judge sentenced defendant to a two-year loss of license for the DWI, and a consecutive two-year loss of license for the Refusal. The judge also ordered defendant to attend an IDRC for forty-eight hours, perform thirty days of community service, and imposed appropriate fines and penalties. This appeal followed.

II.

Our scope of review is limited. Our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J.146, 162 (1964). When we conclude the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Ibid. We "defer to trial courts' 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). "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid.

Here, sufficient, credible evidence supports the findings on the suppression motion. The Law Division judge evaluated the credibility of the witnesses, including their relationships, and made an explicit finding that Pensado's testimony was credible.

"It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense." Locurto, supra, 157 N.J. at 470 (quoting State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Pensado observed defendant cross into the oncoming traffic lane three times. Those observations established a sufficient basis for Pensado to stop defendant's car.

There was also substantial, credible evidence to support the Law Division's finding of defendant's guilt beyond a reasonable doubt of DWI and Refusal. Defendant admitted consuming alcohol, and Pensado opined defendant was intoxicated based upon the strong odor of alcohol on his breath, his slurred speech and his failing the field tests. See State v. Nemesh, 228 N.J. Super. 597 (App. Div. 1988) (finding defendant's acknowledgement of alcohol consumption, the police officer's observations at the scene, and the videotaped coordination tests sufficient to support a DWI conviction), certif. denied, 114 N.J. 473 (1989).

Additionally, the onset of defendant's belching when the police were prepared to take breath samples for the Alcotest, and the cessation of his belching after he was charged with Refusal, is evidence that he avoided taking the test, demonstrating consciousness of guilt, and supporting the Law Division's conclusion that "the motivation of [defendant] was to thwart the Alcotest being performed at all." See State v. Chun, 194 N.J. 54, 99 (explaining that "charging an arrestee with refusal remains largely within the officer's discretion"), cert. denied, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); State v. Widmaier, 157 N.J. 475, 497 (1999) (holding that "anything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the breathalyzer test constitutes a refusal to do so").

Defendant's central argument is not that the State's evidence, if believed, is insufficient to establish the offenses; but that the State's witnesses were not credible. Absent a very obvious and exceptional showing of error, appellate courts ordinarily should not undertake to alter credibility determinations made by two lower courts. Locurto, supra, 157 N.J.at 474. We find no such obvious and exceptional showing of error.

Defendant also argues that the exclusion of the municipal maps and photographic evidence was error. The Law Division considered the testimonial evidence about the exhibits but considered them irrelevant. "[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2000) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). As such, "an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." Ibid. (internal citation and quotation omitted). The record does not demonstrate that the evidentiary rulings were so wide of the mark that a manifest denial of justice resulted.

A

1 Pensado's name is spelled differently throughout the transcripts of the municipal court and Law Division proceedings. The spelling "Pensado" is used by the parties in their briefs and will be used in this opinion.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).