STATE OF NEW JERSEY v. DANIEL AGUIRRE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3892-05T53792-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL AGUIRRE,

Defendant-Appellant.

__________________________________________________________

 

Submitted December 5, 2006 - Decided December 21, 2006

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, MA-4593.

Paul Fernandez & Associates, attorneys for

appellant (Mr. Fernandez, on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Jane E. Hendry, Senior

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction for driving while intoxicated, N.J.S.A. 39:4-50. We affirm.

Defendant pled guilty in municipal court, preserving his right to test on appeal the validity of the search and seizure that preceded his arrest. The Law Division judge considered the validity of the search and seizure de novo, and upheld it with one minor exception that is of no moment. Defendant appeals based on the following arguments:

POINT I

THE MOTION OF THE DEFENDANT TO SUPPRESS THE TESTIMONY OF THE OFFICER SHOULD HAVE BEEN GRANTED, AND THE COMPLAINT FILED AGAINST THE DEFENDANT CHARGING THE VIOLATION OF N.J.S.A. 39:4-50 DISMISSED.

A. The officer had no reasonable basis to question this defendant's physical condition.

B. The Court below should have excluded the officer's testimony based on surprise.

C. The exclusion of the "Power Aid" container and its contents by the Superior Court requires that the Court exclude the DWI tests and breathalyzer results, as they were based upon an improper search.

Having carefully considered the record and arguments of counsel, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). In addition, we affirm substantially for the reasons expressed by Judge DeLuccia in his thorough and well-reasoned oral opinion of February 3, 2006.

 
Affirmed.

(continued)

(continued)

2

A-3792-05T5

December 21, 2006