STATE OF NEW JERSEY v. GUISEPPE A. CUOZZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0587-08T40587-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GUISEPPE A. CUOZZO,

Defendant-Appellant.

__________________________________

 

Submitted September 9, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4732.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Kevin Leckerman, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Special Deputy Attorney General, Acting Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Guiseppe Cuozzo appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). We affirm.

I.

We glean the following facts from the record.

On December 29, 2006, Cuozzo was working with a friend priming an apartment for painting. He testified that they started painting at 4 p.m. and finished painting at around 8 p.m. Cuozzo stated that while painting, they kept the windows of the apartment almost completely closed because it was cold outside. Because the primer being used was oil based and was sprayed onto the walls, Cuozzo testified that the whole apartment was covered with a haze and that the only breathing apparatus he used was the "collar of [his] shirt" which he used to cover his face part of the time.

After finishing the priming, Cuozzo went to his mother's house to have dinner. Cuozzo testified that he was at his mother's house for approximately two hours and that he did not have anything alcoholic to drink during that period.

At around 12:30 a.m. on December 30, 2006, Cuozzo went to a night club in Paterson. He admitted to drinking two light beers while at the club. He stated that he left the club at approximately 2:30 a.m., driving his 1994 Volkswagen Gulf which had tinted windows. Cuozzo testified that he drove approximately one block before he noticed a police car behind him. After sitting behind Cuozzo at a red light, the officer pulled Cuozzo over. Cuozzo stated that once he had pulled over and stopped, he removed his seatbelt so that he could get his identification out of his back pocket.

Paterson Police Officer Bamond testified that he was stopped behind Cuozzo's car at a traffic light when he observed "a large screen" in Cuozzo's car which he believed to be a television monitor. He also noted that the driver was not wearing a seatbelt. Bamond testified that he pulled Cuozzo over both because he was not wearing a seatbelt and also because of the suspected television monitor.

According to both Bamond and Cuozzo, after Bamond approached Cuozzo's car, they discussed the monitor and it was explained that it was a navigation device. Cuozzo testified that Bamond then asked where he was coming from and if he had anything to drink that evening. He said that he answered honestly, at which time he was asked to get out of his car. Bamond testified that he requested Cuozzo's driving credentials and while Cuozzo was complying with this request, Bamond noted "the slur in his voice, the [odor] of the alcoholic beverage that was coming from him, and his slow motions retrieving his paperwork" and concluded that Cuozzo had been drinking. Bamond stated that it was after he made these observations that he asked Cuozzo if he had been drinking.

Cuozzo exited his vehicle at Bamond's request to perform a field sobriety test. After the test was completed, Cuozzo objected that the sidewalk on which he was walking was uneven. Bamond conducted a second field sobriety test on a more even surface in an alleyway. According to Bamond, he "disregarded the [initial] tests."

Bamond testified that he asked Cuozzo to perform three tests: the heel-to-toe test; the sway test; and the one-leg stand test. During the heel-to-toe test, Cuozzo did "not place his heel to his toe," he did not "pivot," as he had been instructed by Bamond to do, and he took more steps then requested. Bamond then explained the sway test to Couzzo, stating: "with his arms at his side, and his head titled back, [he was] to close his eyes and count from one to thirty, using the 1001, 1002 method to thirty." Bamond testified that while performing this test, Cuozzo's "body made wide, circular spiral motions." During the one-leg stand test, Cuozzo was to stand with his arms at his side, hold one leg slightly above the ground, and count to thirty. Twice during this test he had to put his foot down. After the field sobriety test, Bamond "made the determination that the defendant had consumed more alcohol than allowed to operate his motor vehicle." Bamond called for a patrol car to transport Cuozzo to police headquarters. He stated that the patrol car arrived within a few minutes and that he followed the car back to headquarters.

Once at headquarters, Cuozzo was read the standard rights form which he signed waiving his Miranda rights. Cuozzo then voluntarily submitted to the breathalyzer test. Bamond administered the breathalyzer test and testified at trial to the process used to prepare the machine between each test. The first breathalyzer test measured a blood alcohol content (BAC) of .11 percent. A second breathalyzer test was conducted nine minutes later and similarly returned a BAC of .11 percent.

Cuozzo was given a ticket for driving under the influence, N.J.S.A. 39:4-50(a). The matter was tried before a municipal court judge on September 17 and December 3, 2007. Cuozzo and Bamond testified recounting the above facts. The defense called two experts at trial: Herbert Luckey, an expert in field sobriety testing; and Dr. Gary Lage, an expert in toxicology and pharmacology.

Luckey testified that the heel-to-toe test and the one-leg stand test were "not administered appropriately according to the guidelines established by . . . the National Highway and Safety Administration." According to Luckey, the one-leg stand test should not be terminated until the individual places his foot down on the ground three times. He also opined that the sway test "is not one of the standardized field sobriety tests and does not have any degree of reliability assigned to it."

Lage testified that the two products used by Cuozzo on December 29, 2006, to prime the apartment both contained "volatile organic chemicals." By spraying these products, "a large quantity" of these volatile chemicals would be put into the air. He testified that:

An individual breathing without a chemical respirator is going to inhale those volatile substances. They're going to travel throughout the body. They're going to be metabolized within the body. . . . [T]hey're going to be stored within the body fat. They'll be metabolized and they'll be excreted over a period of probably 24 hours or more, because of the fact that they take awhile for the body to get rid of. And they'll be excreted both in the urine, as well as into the exhaled air.

Lage testified that chemicals Cuozzo would have inhaled could cause "dizziness [and a] lack of coordination." Additionally, he stated that the "pharmacological or toxicological effects [of the chemicals] would be indistinguishable" from ethyl alcohol. According to Lage, the breathalyzer machine used was "very old" and unable to "differentiate between ethyl alcohol and other volatile organics."

On January 28, 2008, the municipal court judge found that the State had proven its case beyond a reasonable doubt and that Cuozzo had been operating a motor vehicle while intoxicated. He made his findings on the basis of the breathalyzer test results only, having determined that the results of the field sobriety test were not conclusive. Cuozzo was sentenced the same day to two days at a substance-abuse, in-patient treatment center, a two-year license suspension, and all applicable fines.

Cuozzo appealed to the Law Division, which considered the matter de novo and reached the same decision as the municipal judge, imposing the same sentence. The Law Division stayed the sentence pending this appeal.

II.

On appeal, Cuozzo raises the following issues:

POINT I: THE POLICE DID NOT HAVE REASONABLE AND ARTICULABLE SUSPICION TO STOP GUISEPPE CUOZZO'S VEHICLE.

POINT II: THE COURT ERRED IN CONSIDERING THE BREATH RESULTS BECAUSE THE STATE FAILED TO SHOW THAT THE BREATHALYZER OPERATOR TESTED BREATH SAMPLES WITHIN A REASONABLE TIME AFTER ARREST, THAT THE MACHINE WAS IN PROPER WORKING ORDER, AND THAT A PROPER 20 MINUTE OBSERVATION PERIOD OF MR. CUOZZO WAS CONDUCTED.

POINT III: THE COURT ERRED WHEN ADMITTING THE BREATHALYZER READINGS BECAUSE THE UNREBUTTED TESTIMONY OF DR. LAGE ESTABLISHED REASONABLE DOUBT AS TO THE BREATH TESTING RESULTS.

POINT IV: THE COURT ERRED IN CONVICTING MR. CUOZZO BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MR. CUOZZO VIOLATED N.J.S.A. 3[9]:4-50.

Appeals from a municipal court to the Law Division are de novo. R. 3:23-8. The trial judge must decide the case anew on the municipal court record, "giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge is also obliged to "make his own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). The Law Division judge's function is not an "appellate function governed by the substantial evidence rule, but rather an independent fact-finding function." Ibid.

The scope of our review is limited. We only determine whether the findings made by the trial court "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. We generally defer to decisions as to the admissibility of evidence made by the trial court. State v. Burr, 195 N.J. 119, 127 (2008) (citing State v. Jenewicz, 193 N.J. 440, 456 (2008) (applying an abuse of discretion standard of review)). Although we afford no deference to the trial court's interpretation of the law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we do not reverse unless we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162.

Our review of the record confirms that there was a sufficient factual basis for the trial judge's determination that Bamond had legally sufficient grounds to stop Cuozzo. Although the judge mentions "probable cause," all that is required for a "'lawful stop of an automobile [is a] reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed.'" State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009) (quoting State v. Carty, 170 N.J. 632, 639-640, modified by 174 N.J. 351 (2002)). After the observations made while Cuozzo was obtaining his driving credentials and his admission that he had been drinking, Bamond had a legal basis to administer a field sobriety test. Based upon those tests, he then had probable cause to detain Cuozzo and administer a breathalyzer test. That there were contrary facts in the record does not undercut the judge's factfinding.

"'Probable cause' for an arrest exists where a police officer has a well-founded suspicion or belief of guilt. That suspicion or belief may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion." State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985). "[T]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer 'had reasonable grounds to believe' that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50]." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)) (alterations in original) (internal quotations omitted).

A heavy odor of alcohol and a suspect's admission of drinking can create probable cause for a DWI arrest, even if the suspect successfully completes field sobriety tests. State v. George, 257 N.J. Super. 493, 496-97 (App. Div. 1992). Here, although the judge concluded that the tests administered were not themselves proof of intoxication, he properly held that they provided probable cause for the arrest and subsequent breathalyzer tests.

Consequently, we conclude that there was no deprivation of Cuozzo's constitutional rights with respect to the stop and the arrest. Having reached this determination, the remainder of defendant's arguments on appeal are not of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

Cuozzo contends that, because Lage's testimony was uncontradicted, the trial judge erred by refusing to accept it. A factfinder, however, is always free to accept a portion, all, or none of an expert's testimony based on the other facts of the case. State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005). Lage's opinion was not based upon any testing of the actual conditions under which Cuozzo worked, nor did he seek to replicate the breathalyzer test. His opinion was totally theoretical. Consequently, we find no error in the trial judge's rejection of a defense based on Lage's testimony.

Affirmed.

 

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

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A-0587-08T4

 

September 15, 2009