STATE OF NEW JERSEY v. HOWARD BONGIORNO

NOT FOR PUBLICATION WITHOUT THE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.

HOWARD BONGIORNO,

Defendant-Appellant.

___________________________

June 16, 2014

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-19-13.

Louis G. DeAngelis, attorney for appellant.

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

PER CURIAM

Following a trial de novo in the Law Division, defendant Howard Bongiorno was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, based upon an excessive blood alcohol concentration (BAC) shown by Alcotest readings. Defendant was also convicted of following another vehicle more closely than is reasonable and prudent (tailgating), N.J.S.A. 39:4-89. The court sentenced defendant to a three-month driver's license suspension, ordered him to participate in twelve hours of community service, and imposed the appropriate fines, costs, and surcharges.

On appeal, defendant raises the following contentions:

I. The State Failed to Prove that the Defendant Operated His Vehicle Under the Influence of Alcohol Contrary to the Subjective Prong of the Statute.

II. The State Failed to Prove that the Defendant Operated His Vehicle Under the Influence of Alcohol Contrary to the Per Se Prong of the Statute.

III. The State Failed to Prove that the Defendant Tailgated the Vehicle in Front of His Vehicle.

We decline to address defendant's first contention. Defendant was found not guilty of DWI under the subjective prong of N.J.S.A. 39:4-50, and the State did not challenge that determination. We affirm as to defendant's second and third contentions.

We derive the following facts from the record. At 1:15 a.m. on March 16, 2012, Palisades Interstate Parkway Police Officer Joseph Lanfrank saw defendant's vehicle traveling northbound on the Palisades Interstate Parkway at approximately fifty-five miles per hour one car length behind another vehicle. The officer concluded that defendant was following the vehicle too closely based on his training, experience, and knowledge of the Motor Vehicle Commission guidelines that one car length for every ten miles per hour of travel is a safe distance between two vehicles traveling on a dry roadway. Officer Lanfrank followed the two vehicles for approximately one-quarter mile at approximately fifty-five miles per hour, and saw defendant continue tailgating the other vehicle. The officer followed defendant off an exit ramp, and twice saw defendant's driver's side tires drift completely over the center solid double line. He stopped defendant after defendant turned left at a stoplight.

Because defendant was found not guilty under the subjective prong of N.J.S.A. 39:4-50, we need not discuss what happened on the roadway. Rather, we focus on what happened at police headquarters.

Officer Lanfrank testified that upon arriving at police headquarters, he placed defendant on a bench, read to him the standard statement form about providing a breath sample, and then walked him to the processing room, which was next to the room containing the Alcotest machine. After defendant agreed to submit breath samples, he observed defendant continuously for twenty minutes at a distance of approximately three feet. During that time, he: did not leave the room; observed defendant carefully; looked into defendant's mouth and determined there was nothing that would compromise the reliability of the Alcotest; and did not see defendant regurgitate, spit up, or consume anything. Upon completion of the observation period, he escorted defendant to the next room where Sergeant Kley Peralta was waiting to administer the Alcotest. Although Officer Lanfrank testified that no one else was in the room during the observation period, the evidence indicated that Sergeant Peralta read the Miranda1 form to defendant during that time.

Sergeant Peralta testified that when he arrived at police headquarters, defendant was sitting on a bench while Officer Lanfrank conducted his twenty-minute observation. After Officer Lanfrank advised that the observation period concluded, Sergeant Peralta escorted defendant from the bench to the room containing the Alcotest machine and administered the Alcotest to defendant. The Alcohol Influence Report (AIR) indicated that defendant had a BAC of .083 percent, .08 percent, .082 percent, and .08 percent. Sergeant Peralta did not recall having read the Miranda form to defendant and believed that Officer Lanfrank did so.

Defendant objected to the admission of the AIR, arguing that based on the officers' conflicting testimony about the location of and who was present during the observation period, the State failed to clearly and convincingly prove he was continuously observed for twenty uninterrupted minutes prior to administration of the Alcotest as required by State v. Chun, 194 N.J. 54, 145, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). Defendant concluded that without the AIR report, he could not be convicted of a per se violation of N.J.S.A. 39:4-50.

The municipal court found that Officer Lanfrank's testimony was credible, and determined there was a sufficient basis to admit the AIR. The judge found defendant guilty of a per se violation of N.J.S.A. 39:4-50, and guilty of tailgating.

On appeal to the Law Division, defendant again challenged the admission of the AIR. Following a de novo review, the Law Division judge determined that Officer Lanfrank's testimony was credible and clearly and convincingly evidenced compliance with the twenty-minute observation period. The judge found the AIR was properly admitted, and defendant was guilty of a per se violation of N.J.S.A. 39:4-50, and guilty of tailgating. The judge imposed the same sentence imposed by the municipal court judge.

On appeal, defendant again challenges the admission of the AIR. He also contends the State failed to prove he tailgated. We disagree with these contentions.

Review of a trial court's ruling on the admissibility of evidence is "'subject to limited appellate scrutiny."' State v. Buckley, 216 N.J. 249, 260 (2013) (quoting State v. Buda, 195 N.J. 278, 294 (2008)). "We afford considerable deference to a trial court's findings based on the testimony of witnesses." Ibid. We will not reverse a trial court's evidentiary ruling absent an abuse-of-discretion. Buda, supra, 195 N.J. at 294.

In addition, we defer to the trial court's factual findings that are supported by competent, credible evidence. State v. Locurto, 157 N.J. 463, 474 (1999). The rule of deference is more compelling where, such as here, the municipal and Law Division judges made concurrent findings. Ibid. "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. Applying the above standards, we discern no reason to disturb the rulings made in this case.

Our Supreme Court has held that as a pre-condition for admissibility of Alcotest results, the State must establish by clear and convincing evidence that: (1) the Alcotest was in working order and inspected prior to the procedure in question; (2) the operator was certified; and (3) the operator administered the test according to official procedure. Chun, supra, 194 N.J. at 134; State v. Ugrovics, 410 N.J. Super. 482, 489-90 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010). The third Chun factor, which defendant challenges, requires the Alcotest operator to "wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol," and "observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the startof the testing sequence." Chun, supra, 194 N.J. at 79. The operator must begin counting the twenty-minuteperiod anew"if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth." Ibid.

Any qualified witness may observe the defendant; it need not only be the Alcotest operator. Ugrovics, supra, 410 N.J. Super. at 485. "The observation may be conducted through non-visual as well as visual means, so long as the observer is able to detect whether the driver has ingested or regurgitated something that would confound the Alcotest results." State v. Carrero, 428 N.J. Super. 495, 513 (App. Div. 2012).

The record in this case clearly and convincingly establishes that Officer Lanfrank observed defendant continuously for twenty uninterrupted minutes before Sergeant Peralta conducted the Alcotest, and that Officer Lanfrank was able to detect whether defendant ingested or regurgitated something that would confound the Alcotest results. Accordingly, the AIR was properly admitted into evidence, and defendant was properly found guilty of a per se violation of N.J.S.A. 39:4-50.

We reject defendant's contention that the State failed to prove he tailgated. N.J.S.A. 39:4-89 provides that "[t]he driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of the preceding vehicle and the traffic upon, and condition of, the highway." In our view, it is unreasonable, imprudent, and dangerous to follow one car length behind another vehicle while traveling at approximately fifty-five miles per hour on a dry roadway, as defendant did in this case.

Affirmed.

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