STATE OF NEW JERSEY v. CAMPO ARAQUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2040-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CAMPO ARAQUE,

Defendant-Appellant.

___________________________

February 19, 2013

Submitted January 30, 2013 - Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Municipal Appeal No. 18-11.

Cillick & Smith, attorneys for appellant

(Edward W. Cillick, of counsel and on

the brief).

Gaetano T. Gregory, Acting Hudson County

Prosecutor, attorney for respondent (Monalisa A. Tawfik, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

On trial de novo after defendant Campo Araque's appeal of his municipal court conviction for driving while under the influence, N.J.S.A. 39:4-50, a judge of the Superior Court found defendant guilty and sentenced defendant, who had at least three prior convictions for driving while under the influence, to 180 days' jail time, which could be served in in-patient rehabilitation, and a ten-year suspension of his driver's license. In addition, the judge imposed a $1000 fine, a $100 surcharge, a $50 VCCB assessment, a $75 SNSF penalty, a $100 payment to the DDE Fund and $33 in costs. Defendant did not appeal from his municipal court convictions for failing to maintain his lane, N.J.S.A. 39:4-88b; driving without a license, N.J.S.A. 39:3-10d; and driving with a suspended license, N.J.S.A. 39:3-40. The municipal court imposed a sentence that includes sixty days' jail time for driving with a suspended license that is consecutive to his jail sentence for driving while under the influence.

Based on the judge's review of the transcripts of the municipal court trial and the video recordings produced by the State, the judge found defendant guilty based on his conduct preceding and during the traffic stop. The judge made the following findings.

[T]his matter is before the Court on the Defendant's appeal from judgment entered in the Secaucus Municipal Court adjudicat[ing Defendant] guilty of driving under the influence in violation of N.J.S.A. 39:4-50.

Although the Defendant was also convicted of failing to maintain [a] lane, driving without a valid license and driving while suspended, those matters have not been appealed. The Defendant's convictions here followed a trial at which he was represented by Counsel . . . .

At approximately 12:07 [a.m.] on the morning of September 23rd, 2010, the Defendant was driving a white Mercedes north on the Eastern Spur of the New Jersey Turnpike in Secaucus, New Jersey. At that time, New Jersey State Trooper Robert Davis was in a marked patrol car behind the Defendant's vehicle.

Trooper Davis followed the Defendant's vehicle for approximately two to three tenths of a mile while observing the Defendant's vehicle drifting in and out of his lane of travel. The Trooper then initiated a motor vehicle stop.

Upon activation of the Trooper's emergency lights, a camera began recording the events. Even after the camera was on, the Defendant's vehicle can be seen drifting into the lane to his left. The Defendant upon noticing the troop car, put on his directional signal and pulled over to the shoulder of the roadway, as did the Trooper.

The Trooper then approached the Defendant's passenger window and requested the Defendant open the window. When the Defendant did so, the Trooper identified himself and requested the Defendant provide

him with the required identification.

At the time, the Trooper was . . . approximately three to four feet from the Defendant in the driver's seat. The Trooper observed the Defendant to have watery, bloodshot eyes and that his face was flushed. He also detected an odor of alcohol emanating from inside the vehicle.

He further observed the Defendant fumbling while trying to produce the requested documents. The Defendant initially produced the registration and insurance card of the vehicle, but advised the Trooper that he did not have his license with him. He later produced an expired license. The Defendant then advised the Officer that his license had been suspended as a result of a prior D.U.I. conviction.

The Trooper then asked the Defendant if he had been drinking prior to the motor vehicle stop. The Defendant acknowledged he had consumed several beers shortly before.

The Trooper then asked the Defendant to keep his head still and follow his finger which he moved from side to side. The Defendant was not able to follow the Trooper's finger without moving his head. During this initial stage of the encounter, the Defendant's speech alerted the Officer to the fact that Spanish was his first language and that he was not fluent in English.

The Trooper then requested the Defendant recite the alphabet from A to Z. The Defendant began to recite the alphabet but could only do so to the letter D.

The Trooper then instructed the Defendant to exit the vehicle and he complied. The Trooper then requested the Defendant take nine steps, heel to toe forward, turn around and take nine steps, heel to toe back to him. The Trooper then demonstrated the heel to toe procedure.

Following the Trooper's demonstration, the Defendant refused to do as he was requested, stating "I have been working all day. I'm tired." The Trooper arrested him for D.U.I. and placed him in the patrol car. Trooper advised the Defendant of his Rights in English.

When asked if he understood his Rights during the first time during their encounter, the Defendant said he did not understand what had been said to him. The Trooper said he would provide an interpreter for the Defendant at police headquarters.

During the ride from the stop to headquarters, there were multiple exchanges between the Defendant and the Trooper in English. Each of these exchanges [was] initiated by the Defendant and none of them were incriminatory in any way.

For example, the Defendant repeatedly complained that he was cold. He also complained that the handcuffs were too tight. At one point, the Defendant requested directions from his home to the police station so that he could explain to family members where he was and how to get to the station to pick him up. The Trooper provided him with those directions in English.

Upon arrival at the station, the Defendant was provided with a written copy of his Rights in Spanish and the Trooper played a Spanish language audio reciting those Rights. When the Trooper requested the Defendant sign the form acknowledging he had been advised of and understood his Rights, the Defendant refused to sign the Form. Thereafter, the Trooper began a standard interview process in preparation for the administration of an Alcotest.

The interview was conducted in English. There was no evidence that the Defendant had difficulty understanding the questions asked of him, and his answers in English, were responsive to those questions.

During the interview, the Defendant admitted he had consumed whiskey in addition to the beer he previously acknowledged drinking prior to the operation of his vehicle.

The Trooper then prepared the Alcotest machine and demonstrated what was required of the Defendant. The Defendant then complied with the Trooper's instructions, however, he failed to provide an adequate breath sample. The Trooper again explained what was required and demonstrated the proper procedure. Once again, the Defendant failed to produce an adequate sample.

The Trooper then advised the Defendant that he would provide the Defendant with one

more opportunity to provide an adequate sample, and warned him if he failed to do so, he would be charged with refusal. The Defendant once again failed to comply.

At trial and before this Court, the Defendant challenges the admissibility of his statements during his station house questioning. The basis of the challenge is a claim by Counsel that the Defendant did not understand his Rights as explained to him by the Trooper and therefore, could not have knowingly, intelligently and voluntarily waived them.

I note the claim is made by Counsel insofar as Defendant did not testify at trial that he had any difficulty communicating with the Officer. Although the Defendant speaks accented English, the video of the Defendant along with the appropriate and responsive answers provided to the Officer, establish his comprehension of the language used by the Trooper throughout their conversations.

Counsel's argument regarding the Defendant's comprehension of his Rights must be viewed under the totality of the circumstances. Not only does the video and documentary record of the interaction between the Trooper and Defendant negate Counsel's claim, the undisputed testimony regarding the administration of the Defendant's Rights in Spanish defeats the claim entirely. He was provided with his Rights verbally and in writing, both in English and in Spanish prior to the station house questioning. There is no doubt he understood his Rights before he knowingly, voluntarily and intelligently waived those Rights during the subsequent interview. Those statements are therefore admissible.

Defendant argues next that the State has failed to prove his guilt beyond a reasonable doubt. The test of whether a motorist is under the influence of intoxicating liquor is not fitness or unfitness to operate a vehicle, but rather whether he has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected. State v. Miller, 64 [N.J. Super.] 262[, 265 (App. Div. 1960) (quoting State v. Emery, 27 N.J. 348, 355 (1958)].

Here, there is no dispute as to operation. The Defendant was the vehicle's sole occupant and was stopped while operating the vehicle. The State offered proof regarding his consumption of alcohol prior to operation included admissions by the Defendant to that effect. The video of the Defendant's operation . . . , albeit short, corroborates the Trooper's testimony that the Defendant was unable to maintain his lane of travel, establishing that his physical coordination was, in fact, affected by the consumption of alcohol.

This lack of coordination is also demonstrated by the Defendant fumbling when trying to produce his documents for the Officer and his refusal to even attempt the heel to toe test.

That his mental faculties were also deleteriously affected is established by his inability to recite the alphabet beyond the letter D. There is no doubt the Defendant knew precisely what he was asked to do. He actually began to recite the alphabet. The fact that he was unable to complete such a simple [test] of his present mental condition is not attributable to any purported deficiency in the English language. Both the English and Spanish languages have identical 26 letter alphabets. The only difference between the two is one of pronunciation.

Expert testimony offered by the Defense regarding side effects of certain medications might have been relevant if there was any evidence that the Defendant had taken those medications prior to operating the vehicle. In the absence of such evidence, the opinion testimony is irrelevant and of no assistance to the Court.

The State has the burden of proving the Defendant guilty beyond a reasonable doubt and it has done so.

As to the Defendant's sentence, there is no doubt that this Defendant presents[,] as his repetitive violations of this law clearly establishes, a serious likelihood of re[-]involvement. This is his fourth driving under the influence conviction, his third conviction having occurred just one month prior to this offense.

Likewise, this Defendant requires substantial deterrence. None of the previously imposed sentences have to this point been sufficient to deter his behavior. It is obvious that the Defendant either cannot or will not change his behavior. There's nothing I can find in this record that would mitigate the sentence.

As to the consecutive sentence I will impose, I will note that there are no free crimes. Further, the drinking or rather driving without a license and while suspended relate to the Defendant's disregard of the terms of the prior sentence. I also note that neither offense is a lesser included offense to driving under the influence and therefore merger is not required.

. . . .

Defendant raises three issues on appeal:

I. THE STATE FAILED TO PROVE DEFENDANT

GUILTY BEYOND A REASONABLE DOUBT OF DRIVING WHILE INTOXICATED.

II. THE LOWER COURT IMPROPERLY ALLOWED A

STATEMENT OF DEFENDANT INTO EVIDENCE IN VIOLATION OF MIRANDA.

III. THE LOWER COURT'S SENTENCE WAS BASED ON

FINDINGS NOT IN THE RECORD BELOW WHICH PREJUDICED THE DEFENDANT.

The arguments presented in support of these issues have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Based on our review of the record, including the video of the stop and the ride from the site to headquarters, the judge's finding of guilt could reasonably have been reached "on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964); see State v. Locurto, 157 N.J. 463, 470-72 (1999) (applying the Johnson standard in reviewing a judge's determinations on a suppression motion). Moreover, the judge's finding of guilt does not rest on the statement defendant made about consuming whiskey while detained at police headquarters. Finally, defendant's claim that his sentence depends "on findings not in the record" is based on a statement made by the judge of the municipal court, but the Superior Court judge did not rely upon that statement when sentencing defendant on this conviction anew following the trial de novo.

Affirmed.