STATE OF NEW JERSEY v. DANTE GRECO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4802-06T54802-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANTE R. GRECO,

Defendant-Appellant.

________________________________

 

Submitted December 17, 2007- Decided

Before Judges Lintner and Sabatino.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen County,

BMA 004-15-06.

Rem Zeller Law Group, attorneys for appellant (Joseph P. Rem, Jr. and Scott Gorman, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Charles Cho, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Dr. Dante Greco, appeals from his de novo conviction for refusal to submit to a breathalyzer, N.J.S.A. 39:4-50.4a. We affirm. We repeat the pertinent facts developed in the Municipal Court trial spanning three days.

While on patrol at approximately 10:29 p.m., Officer Derek Smith of the Maywood Police Department noticed defendant's white Mercury traveling eastbound on West Pleasant Avenue. Smith began following the Mercury. Within a short time, Smith observed defendant swerve his vehicle twice, nearly hitting the concrete barrier. Smith then saw defendant come to a stop at a red light at Maywood Avenue, straddling the straight and left turn lanes. When the light changed, defendant hesitated approximately ten seconds before moving forward.

Between the intersections of Maywood and Elm Street, defendant stopped his vehicle twice for no apparent reason. At the stop sign intersection at Elm Street, Smith observed defendant proceed into Elm without coming to a complete stop, instead stopping his vehicle after it entered the intersection. Smith then activated his siren and signaled defendant to stop.

At the open driver's side window, Smith detected a strong odor of alcohol emanating from defendant. According to Smith, defendant's eyes appeared bloodshot and watery, his eyelids droopy, and his face was flushed. Defendant also appeared sleepy to Smith. Smith twice asked defendant for his driver's license and registration. After several minutes, defendant located his driver's license but handed Smith a registration for a different vehicle.

Officers John Lynch and Wuhrl arrived at the scene. Smith requested defendant to step out of the vehicle. As defendant exited, Smith noticed that defendant had to pull himself up using the door handle. Once defendant was outside, Smith noticed that defendant swayed from side to side and needed to lean on the front of the Mercury for support.

Smith then asked defendant to perform three field sobriety tests. Before doing so, Smith inquired whether defendant had any conditions that might affect his performance. Defendant responded that he had a neurological disorder that made it hard for him to see things at night. Defendant was unable to recite the alphabet from A to X as requested by Smith. Defendant was unable to successfully perform the Rhomberg test, which required him to stand with his feet together, hands at his side, while he closed his eyes and tilted his head back. He also failed to complete the walk-and-turn test by which defendant was instructed to place his right foot in front of his left, walk heel-to-toe for nine steps in a straight line, then turn, and take nine steps back. Lynch confirmed that defendant was unable to finish the alphabet and his speech was slurred. Lynch had to catch defendant to keep him from falling to the ground while attempting to walk heel-to-toe.

Believing that defendant was under the influence of alcohol, Smith arrested defendant, gave him his Miranda warnings, placed him in the patrol car, and transported him to headquarters. At headquarters, Smith, a licensed breathalyzer operator, turned on the breathalyzer machine and read defendant the Miranda warning statement. Defendant responded that he understood and initialed each right but refused to sign the statement. Smith filled out the time as 10:51 p.m., after looking at his watch.

After completing the Department's Alcohol Influence Report Form, verifying that the Breathalyzer was ready, and reading the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle (Standard Statement), Smith asked defendant to provide a sample of his breath. Defendant responded by saying that he wanted water. Smith advised defendant that he could not give him water at that time but would give him water after the test was completed. Smith entered defendant's response on the Standard Statement form and read the supplemental portion of the Standard Statement to him. Again, when asked to give a sample, defendant responded, "I want water."

Defendant called several witnesses to testify on his behalf. Nancy Dorer, defendant's secretary, Dr. Michael Torsiello, a colleague, who dined with defendant after attending a seminar that day, and Dr. Joel F. Lehrer, defendant's physician, testified to defendant's normally unstable gait. Lehrer testified that defendant had suffered for more than six years from a neurological disorder caused by an abnormal brain stem, resulting in an abnormal gait and imbalance. However, Lehrer conceded on cross-examination that defendant's neurological disorder would not have caused him to slur his speech. Lieutenant Raymond J. Cramer, a retired Clifton Police officer, testified that defendant had previously had difficulty walking from one point to another over the past several years.

Testifying on his own behalf, defendant stated that he was never asked to take a breathalyzer test and denied having any problem reciting the alphabet as requested. He acknowledged telling Smith, after being stopped, that he had a couple of glasses of wine with dinner. He indicated that he has "plusoric face," meaning that his face is normally red, and that the cataract surgeries he has had on his left eye make his eye appear bloodshot and watery.

The Municipal Court judge found that "Smith had a reasonable and articulable suspicion for the initial motor vehicle stop" and "probable cause to arrest [defendant] based upon . . . Smith and . . . Lynch's observation of the field sobriety and other tests administered at the scene." The judge found Smith to be a credible witness regarding the reason for the traffic stop and subsequent arrest, but concluded that "the level of proof or the finding of probable cause does not rise to the level of proof beyond a reasonable doubt that the defendant was in fact driving while intoxicated." The judge found that the request to submit to the Breathalyzer was made within a reasonable time following defendant's arrest and defendant was presented with the Standard Statement. Citing State v. Widmaier, 157 N.J. 475, 488 (1999), the judge found that defendant's failure to state an unequivocal yes to the officer's request, after being informed of the consequences of the refusal, amounted to a refusal.

On appeal de novo, the Law Division judge, in a letter opinion, recited the relevant facts, deferred to the trial judge's determination finding Smith's testimony credible, and found there was probable cause to arrest defendant for driving while intoxicated. He also found defendant guilty of refusing to submit to a breathalyzer test after being advised of the consequences of refusal.

On appeal, defendant raises the following contentions:

I. THE LAW DIVISION ERRED IN FINDING DR. GRECO GUILTY OF REFUSING TO SUBMIT TO A BREATHALYZER TEST BECAUSE THE ARRESTING OFFICERS FAILED TO ASK DR. GRECO TO [SUBMIT] TO A BREATHALYZER TEST.

II. ASSUMING, ARGUENDO, THAT DR. GRECO WAS ASKED TO SUBMIT TO A BREATHALYZER TEST, THE LAW DIVISION ERRED IN FINDING DR. GRECO GUILTY OF REFUSAL BECAUSE THE ARRESTING OFFICERS LACKED REASONABLE GROUNDS FOR BELIEVING THAT DR. GRECO HAD DRIVEN HIS VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL.

Defendant argues that the record is devoid of sufficient support to find that defendant refused a breathalyzer test because Smith had to rely on his report to refresh his recollection. He also asserts that, even if the proof was sufficient to establish that defendant refused to submit to the breathalyzer, Smith lacked probable cause to arrest because his concern for defendant driving was "implausible" based upon Dr. Torsiello's testimony that defendant demonstrated no difficulty when he drove Torsiello back to his office prior to the stop. Defendant maintains that his neurological disorder militated against a finding that there was probable cause for the arrest, as did his testimony that he performed the alphabet test as requested.

As an appellate tribunal, our standard of review is to determine whether there was sufficient credible evidence in the record to uphold the Law Division findings. State v. Johnson, 42 N.J. 146, 162 (1964). "[I]t [is] improper for us to engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Essentially, defendant asks us to make just such a determination prohibited by Locurto. Contrary to defendant's contention, the Law Division judge appropriately deferred to the credibility findings of the municipal court judge. Id. at 472-74. In doing so, the judge made it clear that he relied on his own independent findings of fact as to the presence of probable cause to justify defendant's arrest, as well as defendant's guilt of refusing to submit a breath sample, after reviewing the evidence in the Municipal Court record. Johnson, supra, 42 N.J. at 157; State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). Defendant's factual and legal contentions lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

Defendant was also convicted of careless driving, N.J.S.A. 39:4-97; failure to stop at a stop sign, N.J.S.A. 39:4-144; failure to maintain a lane, N.J.S.A. 39:4-88; and failure to exhibit a valid registration card, N.J.S.A. 39:3-29. He was acquitted of driving while intoxicated, N.J.S.A. 39:4-50. Defendant only appeals from his conviction of refusal to submit to a breathalyzer. Defendant's suspension was stayed pending this appeal.

Officer Wuhrl's first name is not provided in the record.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Smith would not let defendant fill out the time. Moreover, there was a discrepancy in the testimony and the forms as to the time of the stop, arrest, refusal, and release of defendant to the custody of his secretary. Defendant, his secretary, Nancy Dorer, and Dr. Michael J. Torsiello claim that the events took place between 9:30 and 10:30 p.m. Further, Dorer claims that she received defendant's telephone call to come and pick him up at headquarters at 10:10 p.m. However, the police report and Smith's subsequent trial testimony indicate that the stop did not occur until approximately 10:30 p.m., and that the forms were not completed until just before 11:00 p.m.

(continued)

(continued)

9

A-4802-06T5

January 11, 2008