STATE OF NEW JERSEY v. LAURO CRAVO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4620-05T24620-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAURO CRAVO,

Defendant-Appellant.

_________________________________________

 

Submitted December 20, 2006 - Decided

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. MA-4602.

Greggory M. Marootian, attorney for appellant.

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven Brizek, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lauro Cravo appeals, after a trial de novo, his conviction in the Law Division for driving while intoxicated (DWI). We affirm.

According to the evidence presented in Municipal Court, on May 20, 2005, around 10:00 p.m., Officer Jeffrey Pasquariello was patrolling Lackawana Avenue in the Borough of Totowa when he observed a vehicle parked against the curb, perpendicular to the roadway. The car's engine was running. A male, later identified as defendant, was asleep behind the wheel. After several attempts to arouse defendant by knocking on the driver's side door, defendant finally awoke. He opened the window, at which time the officer noted that defendant appeared dazed and unaware of his whereabouts. In addition, the officer observed vomit on defendant's clothing and that defendant's eyes were watery and his face pale.

In response to Pasquariello's initial request for credentials, defendant produced credit cards. The officer again requested defendant's credentials, at which time defendant produced a female driver's license. Pasquariello directed defendant to exit the vehicle. In doing so, defendant still appeared unaware of his surroundings. He did not know from where he had come or where he was going. The officer detected an odor of alcohol but was uncertain whether it emanated from defendant or from the car. Believing it was unsafe to conduct further evaluation at the scene, Pasquariello took defendant into custody and transported him to police headquarters.

At headquarters, the officer detected the odor coming from defendant's breath. Defendant was cooperative and admitted that he had been drinking since 4:30 p.m., but did not know how many drinks he had consumed. Defendant denied being under the care of a doctor or being on medication. He exhibited difficulty walking in a straight line, walking heel-to-toe, and touching his nose with his index fingers. He swayed and needed to lean or sit on something for stability. Defendant was charged with driving while under the influence, contrary to the provisions of N.J.S.A. 39:4-50.

Defendant pled not guilty to the charge, and trial proceeded in Totowa Municipal Court where the Municipal Court judge found there was probable cause to arrest defendant for driving while under the influence. The judge discounted the breathalyzer results "primarily for the fact that the procedure violated Romano [v. Kimmelman, 96 N.J. 66 (1984)], and that there were radio transmissions in the same room as the test was administered . . . ." The court, however, was satisfied beyond a reasonable doubt that the combination of the officer's physical observations at the scene and the defendant's responses to sobriety tests conducted at police headquarters established that defendant operated his vehicle while under the influence of alcohol. The court imposed a three-month loss of driving privileges, as well as appropriate fines and penalties. Defendant appealed the conviction to the Law Division where, following a trial de novo, defendant was again convicted of the charge.

On this appeal, defendant makes the same arguments he made in the trial de novo in the Law Division:

POINT I

THERE WAS NOT PROBABLE CAUSE FOR CRAVO'S ARREST.

POINT II

THERE WAS NOT SUFFICIENT EVIDENCE UPON WHICH THE COURT BELOW COULD HAVE REASONABLY CONCLUDED THAT CRAVO WAS UNDER THE INFLUENCE BEYOND A REASONABLE DOUBT.

POINT III

ABSENT AN OPINION BY THE OFFICER(S), A FINDING THAT THE DEFENDANT WAS "UNDER THE INFLUENCE" CANNOT BE SUPPORTED.

Based upon our review of the record, we are satisfied that the findings of the Law Division judge are amply supported by sufficient credible evidence in the record as a whole, and we have no occasion to interfere with those findings. See State v. Locurto, 157 N.J. 463, 472-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). We add only the following.

Defendant contends the arresting officer did not reach an opinion that defendant was intoxicated until the breathalyzer test was administered and therefore took defendant into custody with less than probable cause to believe defendant operated his vehicle under the influence.

Our review of factual findings of a judge sitting without a jury is narrowly circumscribed. We defer to a lower court's credibility determinations that are founded on the ability to assess demeanor. State v. Locurto, supra, 157 N.J. at 474. Our task is to determine whether the findings could reasonably have been reached based on sufficient credible evidence in the record. Johnson, supra, 42 N.J. at 162. Our task is complete once we are satisfied that the findings of fact meet this criterion. Ibid.

Here, Officer Pasquariello testified that when defendant opened the driver's side window, he did "smell the odor of an alcoholic beverage, but nothing was concluded until I was back at the headquarters." He also testified that while at the scene, he asked defendant several questions, to which defendant was not really responsive, and that he "kept asking if [defendant] was injured, where [defendant] was coming, where he was going, and [defendant] kind of really didn't -- so [he] figured [he'd] get [defendant] off the roadway for his safety and [the officer's] safety and do everything else back at headquarters." In addition, Pasquariello observed vomit on defendant and detected an odor of alcohol either from the interior of the car or from defendant. Finally, defendant twice failed to produce proper credentials when requested. From these facts, both the Law Division judge and the Municipal Court judge found there was probable cause to arrest defendant for driving under the influence without the performance of any roadside tests which, for safety reasons, the officer elected to conduct at the headquarters.

Further, even if, at the scene, the officer did not have probable cause to believe that defendant had operated his motor vehicle under the influence, we are satisfied that Pasquariello had a reasonable and articulable suspicion that defendant drove while intoxicated sufficient to continue his investigation, for safety reasons, at police headquarters. Locurto, supra, 157 N.J. at 470.

We also affirm the Law Division judge's finding that the State presented sufficient evidence to establish beyond a reasonable doubt that defendant operated a motor vehicle while intoxicated. Driving while intoxicated may be proved by either (1) proof of a defendant's physical condition or (2) proof of a defendant's blood alcohol level. State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). Because the breathalyzer test results were not considered in this case, the determination as to whether defendant was guilty of driving while intoxicated beyond a reasonable doubt is limited to proof of defendant's physical condition. A police officer is permitted to give his lay opinion as to whether a defendant is under the influence of alcohol. Irelan, supra, 375 N.J. Super. at 106-07; State v. Weber, 220 N.J. Super. 420, 423 (App. Div. 1987). Additionally, the trial court may rely on direct and circumstantial evidence to determine whether the elements of the offense are met. State v. Emery, 27 N.J. 348, 356 (1958).

N.J.S.A. 39:4-50 "does not require as a prerequisite to conviction that the accused be absolutely 'drunk,' in the sense of being sodden with alcohol." Id. at 355. We recently found a police officer's observations of a motorist moments after she drove into a parking lot, including signs of intoxication and an admission of consumption of alcohol, sufficient to support a conviction for operating a motor vehicle under the influence. State v. Ebert, 377 N.J. Super. 1, 4-5, 10-11 (App. Div. 2005).

Defendant argues that the sobriety tests were compromised by the poor test instructions from the arresting officer. In finding that the State met its burden of proof beyond a reasonable doubt, the Law Division judge acknowledged "sloppy test-giving." He deferred, however, to the credibility determinations of the Municipal Court judge, who found the arresting officer's testimony credible as to both his observations and conversation with defendant. These findings, coupled with the sobriety tests performed at the station, excluding the finger-to-nose test and the breathalyzer, led the judge to conclude the State established, beyond a reasonable doubt, defendant's operation of his motor vehicle while under the influence.

We must defer to the trial court's findings on credibility because the trial courts are in a better position to observe the character and demeanor of witnesses. Id. at 8. Further, deference is especially compelling where the "Municipal Court and the Superior Court 'have entered concurrent judgments on purely factual issues,' . . . [and an appellate court should] not disturb those findings 'absent a very obvious and exceptional showing of error.'" Ibid. (quoting Locurto, supra, 157 N.J. at 474).

Affirmed.

 

The Supreme Court held inadmissible breathalyzer test results affected by radio frequency interference.

(continued)

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A-4620-05T2

 

February 7, 2007