STATE OF NEW JERSEY v. ANISSA HARRINGTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1706-06T51706-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANISSA HARRINGTON,

Defendant-Appellant.

_______________________________________

 

Submitted July 31, 2007 - Decided

Before Judge Yannotti and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 06-054.

Peter M. O'Mara, attorney for appellant.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel; Carey Huff, Legal Assistant, on the brief).

PER CURIAM

Defendant Anissa Harrington appeals from a judgment entered by Judge Anthony J. Mellaci, Jr., on October 13, 2006, finding her guilty of driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, and imposing the following sentence: thirty days of community service; forty-eight hours at an Intoxicated Driver Resource Center (IDRC); a two-year suspension of her driving privileges and vehicle registration; a $506 fine; a DWI surcharge in the amount of $200; certain fees; and court costs of $33. For the reasons that follow, we affirm.

Defendant was arrested on October 8, 2005, and charged with DWI, N.J.S.A. 39:4-50; refusal to take a breathalyzer test, N.J.S.A. 39:4-50.2; reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A. 39:4-97; leaving the scene of an accident, N.J.S.A. 39:4-129; and failure to report an accident, N.J.S.A. 39:4-130. The matter was tried in the Keyport municipal court on May 11, 2006.

At the trial, Joseph Pinto (Pinto) testified that on October 8, 2005, he heard a crash while he was at his residence on Broad Street in Keyport. Pinto looked around and observed that a silver Acura had stuck a green pickup truck which was parked on the street. Pinto said that after the impact, the silver Acura proceeded a short distance up the road. Pinto went to see if the driver of the Acura was "all right." The driver exited the vehicle and walked around to the passenger side to check on a tire. Pinto asked the driver if she was "okay" and she gave him "a blank stare." Pinto left to phone the police and the driver "took off."

Pinto identified defendant as the driver of the silver Acura. He said that when he approached her after the accident, defendant appeared to be in a daze and "seemed kind of incoherent." Pinto said that he asked defendant several times if she was "okay." The first time, defendant gave Pinto a "blank stare." The second time, defendant said something but Pinto "had no idea what she was saying." Pinto testified that the owner of the green pickup came out of the house. The police arrived and Pinto was taken to Union Beach. There, defendant was brought out on the front porch of her home and the police asked him to identify her. Pinto told the officers that defendant was the driver of the silver Acura.

Officer Deborah Trembley (Trembley) of the Union Beach Police Department (UBPD) testified that she had experience in the detection and apprehension of drivers under the influence of alcohol. Trembley was on duty on October 8, 2005, when she received a call from the Keyport Police Department (KPD). Trembley was asked to check a location on Aumack Avenue and determine whether the resident was there with a silver Acura. Trembley was told that the vehicle had been involved in an accident in Keyport.

Trembley testified that she went to the residence and knocked on the door. A woman answered and, according to Trembley, she "was highly intoxicated." Trembley entered the house. She asked the woman if she was Anissa Harrington and owned the silver Acura. The woman replied that she was and said, "Let me put my dog away." The woman did not return. Trembley noticed that the woman had exited the back door.

Trembley went to the front door of the home and found the woman on the front lawn. Trembley asked the woman if she had forgotten that a police officer was in the house and she did not respond. The woman took Trembley to the garage but the car was not there. The woman then said that the car was located at Union Liquors in Hazlet, across the highway, where she worked. Trembley identified defendant as the woman she spoke to on October 8, 2005.

Trembley was asked to explain the basis for her assertion that defendant was intoxicated when she came to the door. Trembley said that her observation was based upon
the odor of alcohol coming from defendant, as well as the fact that defendant had been swaying and grasping for support. Trembley asserted that after she entered the house, she observed defendant grasp a chair. Trembley testified that defendant was unstable the entire time she was with her at the house.

Trembley asked defendant what time she had gotten home and defendant replied that she had arrived home at 7:30. Trembley said that she had to remind defendant that it was only 7:10. Defendant stated that she had gotten off of work at 5:30, and then said 6:00. Trembley asked defendant how much she had to drink that day, and according to Trembley, defendant "first said one, then she said two, then she said three." Defendant told Trembley that she drank when she got off of work. At that point, Officer Michael Ferm (Ferm) of the KPD arrived, continued the investigation, and arrested defendant.

Ferm testified that he had been employed by the KPD as a police officer for seventeen and one-half years. He had been trained in the detection and apprehension of persons under the influence of alcohol. Ferm said that in his years on the police force, he had stopped and arrested hundreds of persons for driving under the influence of alcohol. Ferm testified that he reported to the scene of the accident on October 8, 2005, and Pinto gave him the license plate number for the silver Acura. Ferm learned that the vehicle was registered to defendant. The UBPD was contacted and Ferm was informed that the owner of the vehicle was at her residence in Union Beach. Ferm went to defendant's residence, and spoke with defendant.

Ferm stated that he observed that defendant was intoxicated. He based his observation on defendant's demeanor. Ferm asserted that he "could smell the alcohol on her" and defendant "was walking around the kitchen area [of her house] stumbling, leaning, grabbing on to the counter for balance and support." Officers from the KPD brought Pinto to defendant's home and Pinto identified defendant as the driver of the silver Acura. Ferm arrested defendant, and transported her to Keyport police headquarters, where Ferm asked her to perform certain field sobriety tests.

At this point in the trial, defendant moved to dismiss the charges on the ground that Ferm did not have probable cause to arrest her for DWI. The judge denied the motion, noting that, although they differed as to some details, Trembley and Ferm had provided testimony that was essentially consistent. According to the judge, the observations of the officers, who both had experience dealing with intoxicated persons, established that Ferm had probable cause to arrest defendant for DWI.

The trial continued and Ferm testified that defendant could not perform the single leg-raising test or a test to determine whether she could stand without swaying. Ferm asked defendant to walk heel to toe, with hands at her side. Defendant refused. Ferm then asked defendant to take the breathalyzer test. According to Ferm, the result of the first sample was .19%. Ferm asked defendant to provide a second sample but she did not provide enough air to enable him to obtain a result. Ferm asserted that defendant had not attempted to give a good faith sample. Ferm warned defendant at least three times that if she did not make a valid attempt to provide a sample, he would charge her with refusal to take the test. Ferm said that defendant did not comply with his request and he charged her with refusal.

The municipal court judge found defendant guilty of refusing to take the breathalyzer test and DWI. Defendant was found not guilty of the other charges. The judge noted that this was defendant's second DWI conviction. The judge imposed the following sentence on the DWI conviction: a two-year suspension of defendant's driving privileges and vehicle registration; forty-eight hours at the IDRC; thirty days of community service; a $506 fine; a $200 DWI surcharge; additional fines; and $33 in costs. The judge also sentenced defendant for the refusal conviction.

Defendant filed a de novo appeal to the Law Division. The appeal was heard on October 13, 2006, and Judge Mellaci placed his decision on the record that day. The judge found defendant not guilty of refusal, but guilty of DWI. The judge determined that Officer Ferm had authority under N.J.S.A. 39:5-25 to arrest defendant in Union Beach without a warrant even though he did not witness the offense. The judge found that in the circumstances, Ferm was not required to obtain a warrant for defendant's detention. The judge also determined that Ferm had probable cause to arrest defendant and defendant was guilty of DWI beyond a reasonable doubt. The judge noted that the testimony of both Ferm and Trembley was "highly credible." The judge imposed the same sentence that had been imposed by the municipal court judge, but stated that the hours at the IDRC would be consecutive. The judge entered an order dated October 13, 2006, in conformance with his decision.

Defendant raises the following points for our consideration:

POINT I:

THE EVIDENCE SUBMITTED TO THE LAW DIVISION WAS NOT SUFFICIENT TO SUPPORT A FINDING THAT THE POLICE HAD JURISDICTIONAL AUTHORITY FOR THE ARREST AND FOLLOWED PROPER PROCEDURE IN MAKING THE ARREST IN A FOREIGN JURISDICTION.

POINT II:

THE EVIDENCE SUBMITTED TO THE LAW DIVISION WAS NOT SUFFICIENT TO SUPPORT A FINDING OF PROBABLE CAUSE FOR [THE] ARREST OF MS. HARRINGTON AND INSUFFICIENT TO SUPPORT A FINDING OF GUILT REGARDING THE DRIVING UNDER THE INFLUENCE CHARGE.

 
In our view, defendant's arguments are entirely without merit. We therefore affirm substantially for the reasons stated by Judge Mellaci in the thorough and comprehensive decision that he placed on the record October 13, 2006.

Affirmed.

(continued)

(continued)

8

A-1706-06T5

August 9, 2007