STATE OF NEW JERSEY v. DILIP P. JOSEPH

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1956-05T31956-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DILIP P. JOSEPH,

Defendant-Appellant.

_______________________________

 

 
Argued November 29, 2006 - Remanded Telephonically Reargued April 26, 2007 - Decided

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. 05-015.

Stephanie Ann Mitterhoff argued the cause for appellant (Bramnick, Rodriguez, Mitterhoff, Grabas & Woodruff, attorneys; Jon M. Bramnick, of counsel; Ms. Mitterhoff, on the brief).

LaJuan Tucker, Assistant Prosecutor, argued the cause for respondent (Michael M. Rubbinaccio, Morris County Prosecutor, attorney; Joseph P. Connor, Jr., Assistant Prosecutor, on the brief.

PER CURIAM

This DWI matter returns to us following a remand to the Law Division, as directed by our opinion dated December 29, 2006. In that opinion we affirmed the Law Division's evidentiary ruling that had declared admissible the Breathalyzer proofs presented by the State at defendant's trial. However, we remanded the matter because the Law Division judge had not made explicit in his oral opinion whether he found the State's proofs established, beyond a reasonable doubt, defendant's guilt of violating N.J.S.A. 39:4-50. We retained jurisdiction in anticipation of the completion of the remand.

After receiving our remand order, the Law Division judge invited counsel to present further argument on the remaining issues if they wished to do so. Counsel declined that offer.

Subsequently, on February 1, 2007, the judge issued a letter opinion that reinstated his original ruling, with one modification. In that opinion, the judge determined that the State's proofs had indeed established, beyond a reasonable doubt, defendant's guilt of a violation of the "lower-tier" for first-time DWI offenses by having a blood-alcohol concentration (BAC) of at least 0.08%. See N.J.S.A. 39:4-50(a)(1)(i). However, the judge also found that the State had not established beyond a reasonable doubt defendant's guilt of the higher-tier DWI offense for a BAC of 0.10% or higher. See N.J.S.A. 39:4-50(a)(1)(ii). The judge reached that decision after giving further consideration to the testimony of defendant's chemical expert, Dr. Gerald DeMenna. As the judge noted, Dr. DeMenna had opined that the margin of error in defendant's sample, measured at 0.11% BAC, could be as high as ten percent or more, and thus yield a true result below 0.10%. The judge also canvassed the other proofs, including the arresting officer's observations of defendant and the testimony of defendant and his companion that evening. Accordingly, the Law Division amended the judgment to reflect a conviction of the lower-tier offense.

On reargument before us, defense counsel contends that the Law Division's decision on remand signifies an implicit finding of reasonable doubt that the Breathalyzer used to test defendant's breath was not in working order. We impute no such finding.

Defense counsel essentially advocates an "all-or-nothing" approach to the expert testimony, contending that the judge was obligated to either accept Dr. Demenna's opinions in their entirety or reject them in their entirety. That is not so. The factfinder is entitled to accept an expert's opinions in part and to reject them in part. See Carey v. Lovett, 132 N.J. 44, 64 (1993); see also Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002). Here, the judge was sufficiently impressed by Dr. DeMenna's testimony as to the potential for error in a BAC reading over 0.10%, but was not so persuaded as to have a reasonable doubt concerning a BAC above the 0.08% lower-tier benchmark.

Given our limited standard of review of factual findings, we are satisfied that the decision on remand is supported by ample credible evidence. State v. Locurto, 157 N.J. 463, 471-72 (1999). Consequently, we affirm defendant's conviction, as modified, of a lower-tier violation under N.J.S.A. 39:4-50a(1)(ii). We also affirm the Law Division's three-month suspension of defendant's driving privileges, the two six-hour detainments of defendant at an Intoxicated Driver Resource Center, and the associated fines, assessments, surcharges and court costs imposed. Defendant shall surrender to the Long Hill Township Municipal Court no later than May 21, 2007 to commence the execution of his sentence.

Affirmed.

 

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4

A-1956-05T3

December 21, 2006

May 7, 2007