STATE OF NEW JERSEY v. CHARLES A. PAPP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4598-04T34598-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES A. PAPP,

Defendant-Appellant.

__________________________________

 

Submitted March 29, 2006 - Decided July 28, 2006

Before Judges Wecker and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Middlesex

County, Indictment No. 92-2004.

Levow & Costello, attorneys for appellant

(Evan M. Levow, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis

Rosenbach, Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant Charles A. Papp appeals his conviction for driving while intoxicated ("DWI"), in violation of N.J.S.A. 39:4-50; refusing to take the breathalyzer test, in violation of N.J.S.A. 39:4-50.2; and driving while in possession of an unsealed alcoholic-beverage container, in violation of N.J.S.A. 39:4-51b. Defendant was first convicted of these offenses after a trial in the Sayreville Municipal Court. The municipal court suspended defendant's driving privileges in this State for an aggregate period of nine months, and imposed the mandatory fines and penalties, including participation in the Intoxicated Drivers Resource Center.

The matter came before the Superior Court on defendant's application. After conducting a de novo review of the record developed before the municipal court, the court convicted defendant of the same offenses, and imposed the same sentence. The court stayed the execution of the sentence pending appeal.

We gather the following facts from the evidence presented at the trial. On February 28, 2004, at around 4:40 p.m., Sayreville police officer John Morris responded to Washington Road near the intersection of Green Valley Way, where defendant's car had struck a bicyclist. After several minutes, Morris approached defendant and instructed him to move his car to the shoulder. As defendant was getting into his car, Morris noticed "a large puddle laying on the ground right outside the driver's door." The puddle contained a dark colored liquid with an odor of alcohol.

Morris also noticed that defendant had difficulty starting the car and trying to park. "[Defendant] was actually driving forward and backward, forward and backward and wound up eventually parking . . . approximately, 75 feet to 100 feet down the road." As he approached the vehicle, Morris observed defendant "moving things" in the car. At one point, he saw defendant "take two 7U[P] soda bottles from the front area of the car and [try] to hide them underneath the front passenger seat from the back." When he spoke to defendant as he left his car, Morris "smelled an odor of alcohol emanating from [defendant's] mouth." Morris also retrieved the two 7UP bottles from defendant's car, and noticed that the seal on the bottles had been broken. The two bottles contained a brown colored liquid that "definitely [] smell[ed] of an alcoholic beverage."

Sayreville Patrolman David Sivilli arrived at the scene of the accident sometime after Morris. As he spoke with defendant, Sivilli detected an odor of alcohol on defendant's breath. In response to Sivilli's question, defendant indicated that he had consumed "a couple of beers." Sivilli noted that defendant's eyes were "watery" and "bloodshot." "His face was a little flushed. He was very mussed[, and] [h]is clothes were a little disheveled." Defendant also "kept swaying back and forth a little bit." Sivilli gave the following description of what occurred next:

Q. So what did you ask him to do?

A. I explained to him what I was going to do [that] I was going to do a one leg stand and a nine step walk and turn.

Q. Okay.

A. I asked him if he had any physical ailments that would prevent him from doing it and he said no.

Q. So, what happened then?

A. I explained how to do it [] keeping his arms down. For the one leg stand, to hold one leg up, count to 1,001 until I told him to stop.

He put his arms up to hold himself steady and he went to, maybe, 1,001 and put his foot down.

Q. Did he follow your direction?

A. No, he did not follow [my] direction at all.

Q. Then, what did you do?

A. Then, I attempted to do the nine step walk and turn. I explained to him how to do it. Asked him if he had any ailments that would not allow him to do it. He said no. And he wasn't able to do that.

Q. So, what happened next?

A. At that point, I placed him under arrest for suspicion of drunk driving.

Defendant was transported to the police station where Sivilli read to him the standard statement advising him of his obligation to submit to the breathalyzer test, and of the legal consequences if he refused. N.J.S.A. 39:4-50.2(e). According to Sivilli, defendant refused to submit to the test. Sivilli then read to defendant the "additional instructions" required when a person refuses to submit to the test. Sivilli testified that after this supplemental statement was read to defendant, he reaffirmed his refusal to submit to the test.

Defendant testified in his own defense. With respect to the charge of having an unsealed bottle containing an alcoholic beverage, defendant testified that he filled the empty soda bottles with beer leftover from a social function. He then placed the bottles "in [a] paper [bag] behind the driver's seat, where they wouldn't roll around and shake up and, maybe, leak."

Defendant denied being under the influence of alcohol, offered a medical explanation refuting the allegation that he had bloodshot eyes and indicated that he told the police he could not perform some of the physical sobriety tests because of his knee. When questioned by his attorney during direct examination, defendant gave the following testimony with respect to the events at the police station that led to the charge of refusing to submit to the breathalyzer test:

Q. Now, do you recall, you told us about things being read to you, correct?

A. Yes.

Q. And I showed you at some point, and you have seen it in discovery, what we have been referring to as Paragraph 36 or the standard statement or the implied consent statement. Is that right?

A. [] [Y]es.

Q. Do you recall that being read to you?

A. Well, I recall something being read to me. Whether it was all of that or not, I mean, he did read a bunch of stuff to me. But what it was I couldn't really testify to, exactly.

* * * *

THE COURT: . . . Mr. Papp, do you remember what your answer was to the question by Officer Sivilli about taking the breath test?

THE WITNESS: I believe I said no, I told him I didn't want, I couldn't really deal with it right now. That was the condition I was in. I just was so up tight and distorted and, I mean, I didn't know what was going on.

THE COURT: All right. That is a lengthy kind of opinionated answer. Do you remember specifically what you said to Officer Sivilli?

A. Well, it was probably no.

THE COURT: Probably no, okay. Thank you.

As part of his defense defendant presented the testimony of two witnesses, who were admitted by the municipal court judge as experts qualified to offer opinions in their respective fields of expertise. Bernard Hershenberg, Ph.D. was admitted as an expert witness in the field of psychology. Dr. Hershenberg met with defendant only one time. He was retained to offer an opinion as to the relationship between defendant's involvement in the accident and his subsequent refusal to submit to the breathalyzer test. Based only on defendant's version of the events, Dr. Hershenberg opined that defendant's actions in the police station were consistent with "acute stress disorder."

However, with respect to defendant's refusal to submit to the breathalyzer test, Dr. Hershenberg gave the following testimony:

At the police station, Mr. Papp reported to me that he felt confused about what was going on, specifically, why he was being viewed as a perpetrator rather than as a victim. And he was angry about it.

He really felt that he was not being afforded the courtesy that he deserved under the circumstances. When he was asked to take a breathalyzer test --

[DEFENSE COUNSEL]: Let me ask you to stop there. Is that consistent with an individual that is involved in this type of incident?

A. It is not necessarily consistent with an acute stress disorder. But, it certainly would be consistent with someone who is viewing a situation in one particular way, and then, treated in a manner that is inconsistent with it.

[Emphasis added.]

Herbert Leckie also testified as a defense witness. A former sergeant with the New Jersey State police, Leckie was admitted by the municipal court judge as an expert in the area of field sobriety tests. Based on his review of the record and his in-court observations of the testimony concerning the field sobriety test administered to defendant, Leckie opined that the reliability of the tests had been compromised, because the directions given to defendant were not in compliance with the instruction manual published by the National Highway Traffic Safety Administration.

Against this record, defendant now appeals raising the following arguments:

POINT ONE

THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION UNDER N.J.S.A. 39:4-50.

POINT TWO

PURSUANT TO STATE V. CUMMINGS AND THE FACTS OF THIS CASE, NOTWITHSTANDING PAPP'S DECLINATION TO INITIALLY SUBMIT TO THE BREATH TESTING, DUE TO PAPP'S ACUTE DISTRESS DISORDER, THIS COURT SHOULD FIND HIM NOT GUILTY OF REFUSING TO SUBMIT TO THE BREATH TESTING.

POINT THREE

APPELLANT SHOULD BE FOUND NOT GUILTY OF THE OPEN CONTAINER CHARGES.

We reject these arguments and affirm. We are satisfied that the arguments raised in Points One, Two and Three lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The State presented ample evidence to sustain a conviction for DWI and for having an unsealed bottle containing an alcoholic beverage in a motor vehicle. The record also amply supports the court's findings that defendant drove his car under the influence of alcohol. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Morris, 262 N.J. Super. 413, 421 (App. Div. 1993).

Finally, with respect to the charge of refusing to submit to the breathalyzer test, we are satisfied that the State met its burden of proving defendant's guilt beyond a reasonable doubt. State v. Cummings, 184 N.J. 86, 96 (2005). The record clearly shows that defendant understood the instructions of the police officer, and thereafter intentionally decided to refuse to take the test. His subjective belief that he was not "afforded the courtesy that he deserved under the circumstances" does not absolve him of the legal responsibility for his actions.

Affirmed.

 

Acting on the State's motion, the municipal court dismissed a summons charging defendant with driving an uninsured motor vehicle. Thereafter, the court acquitted defendant of careless driving and driving while drinking an alcoholic beverage.

Defendant testified that he had consumed three ten-ounce cups of beer from 1:30 p.m. to 3:30 p.m. Thus, by his own testimony, defendant consumed the last beer one hour before Morris's arrival at the scene of the accident.

Although the eleven-paragraph document was marked as a trial exhibit and identified by Sivilli as the statement he read to defendant, the document itself was not included as part of the appellate record.

(continued)

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A-4598-04T3

July 28, 2006