STATE OF NEW JERSEY v. MARTIN STARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5598-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARTIN STARK,

Defendant-Appellant.

__________________________________________

February 27, 2012

Argued July 12, 2011 - Decided

Before Judges R. B. Coleman and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2009-071.

Terry Webb argued the cause for appellant (Hanlon, Dunn & Robertson, attorneys; Ms. Webb, of counsel and on the briefs).

Jane Deaterly Plaisted, Special Deputy Attorney General, Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Plaisted, on the brief).

PER CURIAM

Defendant Martin Stark appeals from a June 15, 2010 order of the Law Division, Essex County, finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50.1 That order was entered by Judge Ronald D. Wigler, pursuant to Rule 3:23, following the judge's de novo review of the testimonial and documentary record created in the Roseland Municipal Court on November 24 and 25, 2009 and oral arguments presented on May 25, 2010. Contemporaneously with the order, which imposed the same fines and penalties as had been imposed by the municipal court judge,2 Judge Wigler issued a written opinion setting forth his findings of fact and legal conclusions. This appeal ensued.

In his appeal, defendant raises the following arguments:

POINT I: THE STATE FAILED TO PROVE THAT THERE WAS A REASONABLE SUSPICION TO SEIZE MR. STARK.

POINT II: THE LAW DIVISION'S FINDING THAT MR. STARK WAS GUILTY ON OBSERVATION WAS CLEARLY ERRONEOUS AND VIOLATED STANDARDS OF DUE PROCESS.

A. THE LAW DIVISION'S FINDING THAT MR. STARK WAS GUILTY ON OBSERVATION WAS CLEARLY ERRONEOUS.

B. THE LAW DIVISION'S FINDING THAT MR. STARK WAS GUILTY ON OBSERVATION VIOLATED NOTIONS OF DUE PROCESS.

POINT III: THE STATE FAILED TO PROVE A PER SE VIOLATION AND, THUS THE DWI MUST BE DISMISSED.

A. THE JUDGE ERRED BY PLACING THE BURDEN OF PROOF ON MR. STARK.

B. THE STATE FAILED TO PROVE THAT IT OBSERVED MR. STARK FOR TWENTY MINUTES BEFORE IT ADMINISTERED THE ALCOTEST TESTING.

In a letter brief filed in reply to the State's brief, defendant makes the following additional arguments:

POINT I: THE TOTALITY OF THE OFFICERS['] OBSERVATIONS SHOW THAT MR. STARK WAS NOT UNDER THE INFLUENCE OR IMPAIRED BEYOND A REASONABLE DOUBT.

POINT II: BREAKS IN THE ALLEGED OBSERVATION PERIOD PROVE THAT THE STATE FAILED TO SATISFY THE TWENTY MINUTE OBSERVATION REQUIREMENT.

POINT III: INCONSISTENT TESTIMONY REGARDING THE FUNDAMENTAL FACTS SHOWS THE STATE FAILED TO SATISFY THE TWENTY MINUTE OBSERVATION REQUIREMENT.

We have considered defendant's arguments in light of the facts and applicable law, and we affirm.

The salient facts are derived from the trial record established in the municipal court proceedings, where State Police Troopers Ruby Calabrese and Joseph Ventrella testified on behalf of the State, and Herbert H. Leckie, a former New Jersey State Police trooper, testified as an expert for defendant. Leckie testified regarding the proper administration and interpretation of evidence used to establish blood alcohol concentration (BAC), and more specifically, the requirement articulated in State v. Chun, 194 N.J. 54 (2008), that an arrestee be observed for twenty minutes before a breath sample is collected:

Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.

[Id. at 79.]

On June 14, 2009, at approximately 8:46 p.m., Trooper Calabrese was on patrol, assigned to Interstate 280. She was traveling westbound in the right lane when a white Dodge Caravan in the far left lane, driven by defendant, passed her at a speed that caught her attention. She pulled the trooper car about three car lengths directly behind the Caravan. After pacing it for approximately one mile, at eighty miles per hour, Trooper Calabrese activated her flashing lights and stopped the Caravan at mile marker 5.1 in Roseland Borough.

Ordinarily, the overhead lights automatically activate the onboard video camera; however, that system malfunctioned and Trooper Calabrese did not manually activate the video because she assumed it was working. Thus, there is no video recording of the stop and subsequent interaction between the trooper and defendant. When Trooper Calabrese approached the vehicle and asked the driver for his credentials, she smelled the odor of an alcoholic beverage emanating from the driver's breath. She asked him how many drinks he had that evening, and at that time, he stated he had two drinks.3

Trooper Calabrese asked defendant to get out of the vehicle, and she advised the Dispatch Unit that she was going to conduct a field sobriety test. It was the first time Trooper Calabrese conducted this test. She waited for backup and when Trooper Brogan and Trooper LaBerber arrived, she administered two tests the walk and turn and the one-legged stand. According to Trooper Calabrese, defendant was cooperative, his face was not flushed or red, and his ability to speak and walk did not appear to be impaired; however, by her assessment, defendant failed the walk and turn test. He began the test before he was instructed to do so, and he failed to touch heel to toe three times going forward nine steps and three times during the nine steps coming back. Defendant passed the one-legged stand test.

Trooper Calabrese arrested defendant for driving at a high rate of speed (eighty miles per hour in a sixty-five miles per hour zone) and for driving under the influence. She transported him to the Totowa Sub-station (the Sub-station), where he was placed in a holding cell. While they were in transit, her car "reeked of alcohol."

After Trooper Calabrese placed defendant in the holding cell, she first went to retrieve defendant's personal effects from her car. Then she read defendant the standard statement form about providing a breath sample, and he agreed to give the requested samples. Thereafter, Trooper Calabrese testified she was "in and out doing paperwork . . . to process him." She agreed with defense counsel that she did not observe defendant continuously for twenty minutes at the Sub-station. Rather, it was Trooper Joseph Ventrella who observed defendant prior to the taking of the breath samples.

Trooper Ventrella testified he was trained and certified in the operation of the alcohol test 7110 MK111-C (the Alcotest). At the time he performed the test on defendant, he had been certified for approximately a month and a half. On that date, he was on patrol and did not respond as backup to Trooper Calabrese. When Trooper Calabrese arrested defendant, Trooper Ventrella was advised to return to the station to administer the alcohol test to defendant. Upon his arrival, defendant was secured in the holding cell. Trooper Ventrella first went to the processing room to obtain a pre-printed sheet with all the prompts that the alcohol test would request, and then he proceeded to the area of the holding cell. Trooper Calabrese relayed back and forth any information Trooper Ventrella needed while he was observing the subject.

Trooper Ventrella synchronized his watch with the time reflected on the LCD screen on the test equipment, and he used that time as a reference to start his direct observation of defendant. According to Trooper Ventrella, he personally observed defendant for a full twenty minutes, and during that time he did not observe defendant cough, burp, vomit or place any object in his mouth.

At the Sub-station, Trooper Ventrella sat or stood in the hallway outside the holding cell door and observed the subject directly. From that vantage point, he also received from Trooper Calabrese any pedigree information he needed for the alcohol test. Toward the end of his twenty-minute observation of defendant, Trooper Ventrella uncuffed defendant, took him from the cell, and seated him directly outside the DWI processing room, where he could observe him while he warmed up the equipment and entered information to start the alcohol test. Trooper Ventrella explained the processing room was small and an intoxicated party was not permitted to stay in the room, as that might affect the ambient air and cause a control failure of the machine.

According to Trooper Ventrella, the possibility of operator error is slight. The operator responds to certain prompts, and the alcohol test machine checks the ambient air and conducts a control test of the simulator solution. Once it is established that the simulator solution is within proper tolerance, within five percent above or below the control value, two breath samples are taken. Each of the breath samples is tested two ways through an electrochemical cell (EC) and through infrared spectroscopy (IR). Based on the alcohol influence report, one sample had an EC result of .086 percent BAC and an IR result of .085 percent BAC. The EC and IR results of the second breath samples were .083 and .082, respectively. The average BAC reading of .08, truncated to the lowest hundredth, was consistent with someone who is intoxicated.

Between the first and second breath samples, defendant went back to the chair outside of the processing room and waited there until the machine was ready again. The machine conducted its second control check of the ambient air and of the simulator solution to ensure it was still operating within the appropriate tolerances.

The defense expert, Herbert Leckie, was not present for the in-court testimony of the two troopers, but he had the opportunity to listen to their recorded testimony. Based on their testimony and his own personal familiarity with the layout of the Totowa Sub-station from the time he was assigned there as a trooper with the New Jersey State Police, Leckie expressed the opinion that the twenty-minute observation period was not continuous and uninterrupted. While he conceded the observation period is "not a staring contest," he noted that defendant would not have been within the operator's sight because the operator would have been facing the outside wall of the DWI processing room when he was preparing the test machine or entering data. Leckie opined there was an additional break in the twenty-minute observation when defendant was sent back into the hallway between breath samples.

At the conclusion of the trial, the municipal court judge rendered his oral opinion, which he subsequently supplemented by letter dated December 3, 2010.4 The judge found defendant not guilty of the speeding charge even though he stated he had no doubt that defendant was traveling eighty miles per hour in a sixty-five miles per hour zone. He dismissed that charge because of "the procedures followed by the trooper with respect to the pace," pacing too closely at three car lengths rather than eight or more. The municipal court judge also reasoned that the dexterity tests performed in the field "were not illustrative that this defendant would clearly be under the influence of alcohol." On the other hand, he "conclude[d] without any reasonable doubt, beyond any reasonable doubt that the [BAC] in this case was [.]082 to [.]086 or [.]080 giving the defendant the benefit of the doubt[,]" thereby establishing a statutory presumption of intoxication.

Upon de novo review of the municipal court record, the Law Division judge found that "Ventrella did observe [a]ppellant for the entire [twenty] minutes and never left [a]ppellant's presence." The court further found that "[d]uring the required [twenty-]minute observation period[,] Ventrella did not see [a]ppellant cough, burp, vomit or place any object into his mouth." The Law Division judge rejected defendant's argument that the municipal judge had erred by placing the burden of proof upon him to show that he had placed something in his mouth, burped or vomited during the observation period. The court recognized that the burden was, indeed, borne by the State, and was satisfied through Trooper Ventrella's testimony, corroborated by Trooper Calabrese. The court also added "arguendo" that it found "there was sufficient evidence based on the totality of the circumstances that [a]ppellant was intoxicated based on [a]ppellant's admissions and Calabrese's observations."

On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). We are not in a position to judge credibility, and we do not make new findings of fact. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). "We do not weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). Unless we are convinced the Law Division's finding was "'clearly a mistaken one and so plainly unwarranted [that] the interests of justice demand intervention and correction . . . then, and only then, . . . should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Avena, supra, 281 N.J. Super. at 333 (quoting Johnson, supra, 42 N.J. at 162).

The Alcotest has been held to be "generally scientifically reliable," and with certain modifications, its results are admissible to support a per se violation of N.J.S.A. 39:4-50. Chun, supra, 194 N.J. at 65. As a pre-condition to the admissibility of the Alcotest results, the device's operator "must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol[]" and to assure that the test subject has not swallowed anything, regurgitated, or chewed gum or tobacco. Id. at 79. The State must establish compliance with the observation procedure by clear and convincing evidence. State v. Ugrovics, 410 N.J. Super. 482, 489-90 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010).

Defendant contends that the Law Division erred by concluding the Alcotest operator's statements satisfied the heightened standard of clear and convincing evidence. Appellate courts should defer to the fact findings of the trial court. Locurto, supra, 157 N.J. at 474. The rule of deference is more compelling where, as in this case, the municipal and Law Division judges made concurrent findings. Ibid. "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. (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

Clear and convincing evidence "'should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.'" In re Purrazzella, 134 N.J. 228, 240 (1993) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960)). It must be "'so clear, direct, and weighty and convincing as to enable [a judge] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.'" In re Seaman, 133 N.J. 67, 74 (1993) (quoting In re Boardwalk Regency Corp., 180 N.J. Super. 324, 339 (App. Div. 1981), modified, 90 N.J. 361 (1982)).

From our review of the record, taking into account the direct and consistent testimony of the troopers that Trooper Calabrese gathered and provided information for Trooper Ventrella, while Ventrella observed defendant, first in the holding cell and then in the hallway outside the DWI processing room, we conclude that the order of the Law Division is amply supported by the record. The Law Division specifically found that Trooper Ventrella did observe defendant for the entire twenty minutes and never left his presence.

Relying on Trooper Ventrella's testimony, the court did not shift the burden of proof to defendant, but did find that during Trooper Ventrella's observation of defendant, he did not see defendant cough, burp, vomit or place anything in his mouth. There was ample evidence in the record to establish that the Chun requirements were satisfied, and we have no occasion to disturb those findings. Locurto, supra, 157 N.J. at 474. The issue turned on the credibility and sufficiency of the evidence, and the Law Division believed Trooper Ventrella observed defendant continuously for a twenty-minute period. Arguments from defendant's expert suggesting that a further refinement of Chun observation procedure is required are unpersuasive. We find nothing in the challenges to Trooper Ventrella's conduct that erodes our confidence in the Law Division's determination, and we find no occasion to consider whether the evidence supports an alternate basis for a DWI conviction based solely on observation of the defendant in the field. The remaining arguments raised by defendant lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed. The stay is vacated.

1 Pursuant to N.J.S.A. 39:4-50(a)(1) "a person who operates a motor vehicle while under the influence of intoxicating liquor . . . with a blood alcohol concentration of 0.08 [percent] or more by weight of alcohol in the defendant's blood . . . shall be subject" to fines and penalties as prescribed by the statute. Defendant was originally charged with DWI, N.J.S.A. 39:4-50, and speeding, N.J.S.A. 39:4-98. The municipal court judge found him not guilty of speeding but guilty of DWI.

2 Defendant was sentenced to pay $1,006 in fines, $33 in costs, a VCCB penalty of $50, a $75 Safe Neighborhood penalty and two $100 Drunk Driving Enforcement Fund surcharges. His license was suspended for ten years, and he was ordered to attend the Sheriff's Labor Assistance Program (SLAP) for thirty days.

3 Later at the Totowa Sub-station, after he had been advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), defendant stated in a drinking/driving questionnaire that he had been drinking Molson Ice. He had five between 10:00 a.m. and 7:30 p.m. He had eaten a hamburger at about 1:30 p.m.

4 In the supplemental letter, filed after the appeal from the Law Division order, the municipal judge indicated he recalled that he told defense counsel her expert "need not dwell on the [d]efendant's performance on the field sobriety tests and to concentrate on the validity of the [Alcotest] test readings, upon which [d]efendant's conviction or acquittal would hinge based upon New Jersey's [p]er [s]e [l]aw." The judge added that "[t]he [t]rooper's testimony concerning [d]efendant's operation of his vehicle and his performance on the standardized field sobriety tests provided probable cause for [d]efendant's arrest, but would have been insufficient, without the BAC results, to convict [d]efendant beyond a reasonable doubt."