STATE OF NEW JERSEY v. KEVIN D'ANTONIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN D'ANTONIO,

Defendant-Appellant.

_______________________________________________

June 23, 2014

Before Judges Messano and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 5011.

Brian J. Neary argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel and on the brief).

Marc A. Festa, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Festa, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Kevin D'Antonio was found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and speeding, N.J.S.A. 39:4-98. It was defendant's third DWI conviction, and the judge imposed the following sentence: 180 days in jail, ninety of which could be served in an inpatient drug and alcohol program; a ten-year license suspension; installation of an ignition interlock device; and various fines and penalties.

Testimony in the municipal court revealed that Totowa police officer Nicolas Varcadipane was on patrol shortly after midnight on August 16, 2011, when he observed a vehicle traveling at a high rate of speed in a thirty-five miles per hour zone. Varcadipane's radar device registered the vehicle's speed as sixty-one miles per hour. The officer pulled behind the car, activated his lights and siren and the car pulled to the side of Union Boulevard without incident.

Defendant was the driver and only occupant. As defendant lowered the window halfway, Varcadipane "smelled a strong odor of alcohol coming from the vehicle . . . and . . . defendant's breath . . . ." Defendant's face was "flushed," and "[h]is eyes were watery and bloodshot." Varcadipane saw a brown bag on the passenger seat and asked defendant what it contained; he replied, "[a] six-pack of beer." Defendant told the officer he drank one beer at an Applebee's restaurant in North Bergen at approximately 10:30 p.m.

Varcadipane ordered defendant to exit the car, noticing that he swayed and staggered while walking. Defendant unsuccessfully performed three field sobriety tests, but indicated that he had "an injury . . . affecting his ability to perform" one of the tests. Varcadipane placed defendant under arrest and transported him to police headquarters where an Alcotest was administered. No other witnesses were called by either side.

Defendant moved to suppress "all results of [p]sycho-physical tests" administered to him based upon an alleged lack of probable cause to stop defendant's vehicle or arrest him for DWI. The judge denied defendant's motion, as well as his motion to suppress statements made to Varcadipane at the scene. However, citing our opinion in State v. Maricic, 417 N.J. Super. 280 (App. Div. 2010), the municipal court judge granted defendant's motion to suppress the results of the Alcotest based upon the State's failure to supply all the "digital downloads" from the machine in discovery.1

The judge found Varcadipane's testimony to be "credible regarding his observations of . . . defendant, admission of alcohol consumption, the smell of alcohol, evidence of bloodshot, watery and glassy eyes, and a flushed face." He found defendant guilty beyond a reasonable doubt of both DWI and speeding, and stayed sentence pending appeal to the Law Division.

Before the Law Division judge, defendant argued that the police lacked probable cause to stop and arrest him for DWI, the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of DWI, and his statements to police should have been suppressed because his Miranda2 rights were violated. The judge initially reserved her decision.

When the parties returned a second day, the judge placed her oral decision on the record. Recounting the relevant testimony, she concluded that Varcadipane "ha[d] probable cause to pull the vehicle over" based upon its excessive speed. The judge also found that once the car was stopped, the officer made observations that provided probable cause to "ask . . . defendant to . . . exit the car and perform the field sobriety tests." The judge concluded that Varcadipane's observations, together with defendant's performance of the field sobriety tests, provided probable cause to arrest him for DWI. After considering all the evidence in the record, the judge found defendant guilty beyond a reasonable doubt and imposed the sentences referenced earlier.3 The judge stayed the custodial portion of defendant's sentence pending this appeal.

Before us, defendant presents the following arguments:

Point I

THE COURT BELOW ERRED IN FINDING THAT THE POLICE HAD PROBABLE CAUSE TO ARREST DEFENDANT FOR SUSPECTED DWI.

Point II

THE COURT BELOW ERRED IN CONCLUDING THAT SUFFICIENT EVIDENCE WAS PLACED ON THE RECORD TO SUPPORT A CONVICTION FOR DRIVING WHILE INTOXICATED; AS SUCH, DEFENDANT'S CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE.

Point III

THE COURT BELOW ERRED IN FAILING TO SUPPRESS DEFENDANT'S STATEMENT[S], AS THEY WERE OBTAINED IN VIOLATION OF HIS MIRANDA RIGHTS.

We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by the Law Division judge. We add only the following comments.

In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). This "rule of deference is more compelling" when both the municipal court and the Law Division "have entered concurrent judgments on purely factual issues." Id. at 474. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. (citation omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." State v. Belliard, 415 N.J. Super. 51, 78 (App. Div. 2010) (alteration in original) (quotation omitted), certif. denied, 205 N.J. 81 (2011).

Defendant argues that Varcadipane lacked probable cause to arrest him for DWI because defendant was not operating the car erratically, cooperated fully with the officer, had an excuse for not performing the field sobriety tests appropriately and generally exhibited no outward appearance of being intoxicated. We disagree.

To justify an arrest, "there must be probable cause to believe that [an offense] has been committed and that the person sought to be arrested committed the offense." State v. Chippero, 201 N.J. 14, 28 (2009) (quotation omitted). "Although it is difficult to define the concept with precision, probable cause requires 'more than a mere suspicion of guilt' but less evidence than is needed to convict at trial." State v. Brown, 205 N.J. 133, 144 (2011) (quoting State v. Basil, 202 N.J. 570, 585 (2010)).

"[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) (alterations in original) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). "[A] showing of probable cause to arrest for DWI only require[s] proof by a fair preponderance of the evidence." Karins v. City of Atlantic City, 152 N.J. 532, 559 (1998) (citations omitted).

Unsafe operation of the vehicle is not a necessary prerequisite to proving a violation of N.J.S.A. 39:4-50. As the Court has explained, "The obvious intention of the Legislature was to prescribe a general condition, short of intoxication, as a result of which every motor vehicle operator has to be said to be so affected in judgment or control as to make it improper for him to drive on the highways." Johnson, supra, 42 N.J. at 165. "[I]t is not essential to sustain the charge that the particular operator could not safely drive a car . . . . [P]roof that he could operate with safety will not, in and of itself, absolve him." Ibid. (citation omitted). That defendant in this case was speeding, but otherwise not driving in an erratic manner, is not dispositive of whether there was probable cause to arrest him.

Nor is the lack of any loud or disruptive actions by defendant dispositive. In State v. Cryan, 363 N.J. Super. 442, 445 (App. Div. 2003), we affirmed the defendant's DWI conviction even though "there was nothing in [his] demeanor, i.e., his speech, gait, level of cooperation, that was consistent with intoxication." In short, considering the totality of the circumstances, Basil, supra, 202 N.J. at 585, Vercadipane possessed ample probable cause to arrest defendant for DWI.

Defendant's claim that the Law Division's finding of guilt beyond a reasonable doubt was against the weight of the evidence lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). We defer to the factual findings made by the judge, and they were sufficient to prove defendant guilty of DWI beyond a reasonable doubt.

Lastly, we reject defendant's contention that his admission to having drank one beer earlier in the evening should have been suppressed because he was effectively in custody and had not been provided with his Miranda warnings.4 We have previously held that on-the-scene, factual questioning during a motor vehicle stop does not trigger the need to issue Miranda warnings. See State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005) (holding that "Miranda d[oes] not apply to preliminary questions asked [of the motor vehicle operator] by the officer").

Affirmed. The stay previously entered by the Law Division is vacated. Defendant is ordered to surrender himself forthwith to the Law Division judge for imposition of the custodial portion of his sentence.

1 In Maricic, supra, however, we only remanded the matter so the defendant could obtain through discovery the digital downloads of the historical results of a particular Alcotest machine. Id. at 288. We did not suppress the results of the test. Ibid.

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

3 The judge also found defendant guilty of speeding. That finding and the sentence imposed are not before us.

4 We note that the Law Division judge specifically did not consider defendant's other statement to Vercadipane, i.e., that the paper bag on the passenger's seat contained a six-pack of beer.