STATE OF NEW JERSEY v. ROBERT PRYER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT PRYER,

Defendant-Appellant.

______________________________

September 3, 2015

 

Submitted July 21, 2015 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 14-006.

Chiarolanza & De Angelis, attorneys for appellant (Louis A. Chiarolanza, of counsel and on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Following a trial in the municipal court and trial de novo on the municipal court record in the Law Division, defendant Robert Pryer was convicted of driving while intoxicated, N.J.S.A. 39:4-50, and sentenced as a third-time offender to pay a $1006 fine, $33 in court costs, a $50 VCCB assessment, a $200 DUI surcharge, and a $75 SNSF assessment. In addition, the judge revoked defendant's driver's license for ten years, required him to serve 180 days in the county jail, ninety of which could be served in an in-patient program, ordered him to spend forty-eight hours at the Intoxicated Driver's Resource Center, and required him to install an ignition interlock device for a period of two years post restoration. He appeals. While plowing a customer's driveway one snowy evening, defendant backed his truck into a brick pillar, toppling it into the road. Defendant apologized to the homeowner and promised to take care of the damage. The homeowner, however, noted defendant was slurring his words and called the police to report the accident.

A police officer dispatched to the scene passed a pick-up truck traveling in the opposite direction that matched the homeowner's description of defendant's truck. After seeing the bricks in the road, the officer turned to follow the direction the truck had taken. He found the truck parked in a driveway. The fresh tire tracks and warm engine led the officer to knock at defendant's door, which was inside a screened porch. A woman answered and advised the officer in response to his question that defendant had just arrived.

Defendant, smelling of alcohol, came to the door in a pair of sweatpants and socks. The officer testified defendant's face was flushed and he was slurring his words. He admitted hitting the pillar, and that he had agreed to take care of the damage. The officer asked defendant if he had been drinking. Defendant responded that he had a beer earlier in the evening. The officer testified he asked defendant if he wanted to change his clothes because it was cold out. Defendant said, "okay" and turned to go back inside. The officer explained that he and the patrolman who had recently arrived needed to accompany defendant inside for officer safety. Defendant said, "okay" and the three went inside while defendant changed.

When they returned to the screened porch, the patrolman asked defendant to perform limited field sobriety tests. When defendant could not perform the one-leg stand, the officers arrested him and drove him to the police station. Once there, defendant agreed to provide a breath sample. When the first sample was not within acceptable tolerances, the officer observed defendant for another twenty minutes and obtained a second sample. The State produced a video of the first administration of the test, but not the second. The senior officer testified that he was not responsible for maintaining the video system at police headquarters and was not aware of whether there was a tape of the second observation period. Defendant's blood alcohol content was measured at .18 according to the Alcotest.

Defendant's neighbor, the woman who answered the door at his house, testified on his behalf. According to her, defendant had asked her on the day of his arrest to buy him a bottle of B&B and leave it inside a bench on his porch, which she did. Later that evening, she was at defendant's house taking care of his children, when she heard defendant's daughter call out, "Daddy's home." Ten or fifteen minutes later, she heard defendant come inside and go upstairs. Ten or fifteen minutes after that, the police knocked at the door. After defendant was arrested, she sealed up the bottle and carried it home with her. It was marked and identified at the municipal trial.

Defendant confirmed that he had asked his neighbor to buy the B&B and leave it on his porch. He admitted backing into the brick pillar and knocking it into the roadway. He explained that he tried to get it out of the road, but it was too heavy to move. He spoke to the homeowner and told him he would take care of the damage. He then drove home and had two big glasses of the B&B out on the porch while he smoked a couple of cigarettes. He then went upstairs to change his clothes to go to bed. Defendant testified that while he had known the officer who appeared at his door for about ten years and had a friendly relationship with him, he did not consent to the officers coming into his home.

Defendant's expert testified that a new Alcotest machine should have been used after the first sample was below tolerances, and the results were unreliable because the officer administering the test neglected to note which temperature probe was used.

Having heard the testimony, both Judge Bride in the municipal court and Judge Gilson in the Law Division found the officers had lawfully entered defendant's home, denying his motion to suppress,1 and found defendant guilty beyond a reasonable doubt based on the results of the Alcotest but not on the observations of the officer conducting the limited field sobriety tests.

Defendant raises the following issues for our consideration

POINT I

THE APPELLANT'S FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES WAS VIOLATED WHEN THE OFFICERS ENTERED ONTO THE APPELLANT'S PROPERTY AND INTO HIS HOME WITHOUT A VALID SEARCH WARRANT.

POINT II

THE APPELLANT'S QUASI-CRIMINAL RIGHT TO FUNDAMENTAL FAIRNESS WAS DENIED WHEN THE TRIAL COURT PLACED THE BURDEN ON THE APPELLANT TO PROVE THE EXISTENCE OF THE SECOND VIDEOTAPE OF THE ALCOTEST ADMINISTRATION.

POINT III

THE APPELLANT'S DWI CONVICTION SHOULD BE REVERSED BECAUSE THE STATE DID NOT MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT THE ALCOTEST WAS FUNCTIONING PROPERLY AND WHETHER THE OFFICER FOLLOWED PROPER PROCEDURE IN THE OPERATION OF THE ALCOTEST.

POINT IV

THE APPELLANT'S POST-OPERATION CONSUMPTION OF ALCOHOL WOULD HAVE PROVIDED AN INACCURATE READING AS TO THE APPELLANT'S BLOOD ALCOHOL CONCENTRATION AT THE TIME HE WAS OPERATING HIS MOTOR VEHICLE AND THEREFORE THE READINGS SHOULD HAVE BEEN EXCLUDED.

Having carefully reviewed the record, the applicable law, and having considered the arguments of counsel, we affirm defendant's conviction substantially for the reasons expressed by Judge Gilson in his written opinion of August 5, 2014. We have nothing to add to his thorough and thoughtful analysis of the issues.

Affirmed.

1 Judge Gilson noted that it was unclear exactly what evidence defendant was attempting to suppress as the officers did not search defendant's home or seize any evidence there; nor did they make any observations of any evidential value to use against defendant at trial.