STATE OF NEW JERSEY v. SAVERIO F. RESCIGNO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2694-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAVERIO F. RESCIGNO,

Defendant-Appellant.

_______________________________________________________

February 11, 2013

Submitted February 5, 2013 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 43-11.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel; Mr. Levow and Michael V. Troso, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50, in Medford on April 11, 2011. The investigating police officer had observed defendant driving on Tuckerton Road "well below the speed limit" and followed him as he made a left turn onto Jackson Road. After a short while, the officer observed defendant cross the center line "several times," causing the officer to activate her overhead lights and direct defendant to stop.

After approaching defendant's vehicle, the officer detected the smell of alcohol. Defendant's speech was slurred, he had bloodshot eyes and a flushed face, and he fumbled with his credentials, eventually producing only an insurance card and registration. The officer had defendant perform certain field tests; defendant was "unable to raise one leg without loss of balance" and also had trouble following directions and performing the straight-line walk. As a result, defendant was arrested.

The arresting officer testified at trial that, while transporting defendant, the odor of alcohol "emanate[ed] through" the vehicle. Another officer testified that, while at the police station, defendant had watery blood shot eyes, fumbling slow hands, and swayed while standing. This officer further testified that defendant was rambling, boisterous, and his speech was slow and slurred.

Defendant first refused to take the Alcotest. After being read the additional warnings required once there is an initial refusal, defendant agreed to submit to the test. However, he twice failed to produce a breath sample of sufficient volume and the officer discontinued any further attempts.

Defendant was charged with DWI, as well as refusal to submit to a breath test, N.J.S.A. 39:4-50.2, and various moving violations. At the conclusion of a municipal trial, defendant was found guilty of all charges and sentenced to 180 days in jail, a ten-year-and-seven-month loss of driving privileges and various monetary fines, penalties and surcharges. Defendant appealed, and after conducting a de novo review, Judge Thomas Kelly found defendant guilty as charged and imposed the same sentence.

Defendant appeals, arguing in a single point:

APPELLANT'S CONVICTION UNDER N.J.S.A. 39:4-50 WAS AGAINST THE WEIGHT OF THE EVIDENCE AND NOT ESTABLISHED BEYOND A REASONABLE DOUBT.

We find insufficient merit in this argument to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth by Judge Kelly in his thorough oral decision.