STATE OF NEW JERSEY v. SCOTT M. MCCAFFERY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3745-05T53745-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOTT M. MCCAFFERY,

Defendant-Appellant.

______________________________________________________________

 

Submitted February 27, 2007 - Decided March 15, 2007

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, Municipal Appeal

No. 4581.

John Vincent Saykanic, attorney for appellant.

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh,

Senior Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

This is defendant's third conviction for driving while intoxicated, N.J.S.A. 39:4-50. On this occasion, he was found guilty in the Totowa Municipal Court and then appealed to the Law Division for a trial de novo. After considering the municipal court transcript and arguments of counsel, Judge Subryan issued a written opinion re-adjudicating defendant's guilt. Defendant appeals, and we affirm.

Defendant argues first that the laboratory report, which indicated a blood alcohol reading of 0.23, was improperly admitted into evidence. In that regard, he notes that the municipal court judge relied solely on the reading for his adjudication of guilt. But we are not reviewing the decision of the municipal court judge. We are reviewing the judgment entered by Judge Subryan.

Although Judge Subryan agreed with the lower court's reliance on the 0.23 reading, he also found that the subjective observations of the witnesses showed beyond a reasonable doubt that defendant was intoxicated. Defendant's brief contains neither a point heading, nor an argument, attacking this alternative basis for the judgment. That is hardly surprising since the record fully supports Judge Subryan's findings. As he noted, one witness observed defendant stumbling, and the police officer testified that defendant's eyes were watery and bloodshot, his speech was slurred, his breath smelled of alcohol, and he admitted drinking that afternoon.

Defendant's other argument is that Judge Subryan erred in rejecting the defense of necessity. In support of that defense, defendant offered evidence indicating that a very large man had pressed against him in a threatening way as he sat drinking in a crowded bar. Defendant testified that he left the bar because he was afraid the man would attack him. He then entered his truck and locked the doors. The man followed him outside and pounded on the body and windshield of defendant's truck. Defendant tried without success to call his girlfriend on his cell phone. Fearing that his windshield might be broken or that he might be hurt, he drove off with the man in pursuit. Shortly thereafter, he caused the four-car accident which brought the police to the scene.

Judge Subryan accepted that evidence as true but found that it failed to establish the defense of necessity. He noted that the defendant had ample opportunity to summon help while in the bar and that he could have called the police while seated in his truck. Therefore, he found that the State proved that defendant had a reasonable opportunity to avoid injury "without resorting to driving while intoxicated." As Judge Subryan further noted, this case is entirely distinguishable from the case on which defendant relied, State v. Romano, 355 N.J. Super. 21 (App. Div. 2002).

Thus, in short, we affirm defendant's conviction substantially for the reasons expressed by Judge Subryan in his thorough and well-reasoned written opinion.

Affirmed.

 

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A-3745-05T5

March 15, 2007