STATE OF NEW JERSEY v. LOUIS ROZZO

NOT FOR PUBLICATION WITHOUT THE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.

LOUIS ROZZO,

Defendant-Appellant.

________________________________

August 16, 2016

Argued November 30, 2015 Decided

Before Judges Simonelli and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 5024.

Peter M. O'Mara argued the cause for appellant (The O'Mara Law Firm, attorneys; Mr. O'Mara, of counsel and on the brief).

Christopher W. Hsieh, Chief Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hsieh, on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Louis Rozzo was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50. On appeal, defendant argues that the Alcotest result was inadmissible and there was insufficient evidence of guilt based upon observation. After reviewing the record in light of the contentions advanced on appeal and applicable law, we affirm.

We glean the following facts from the record. At approximately 12:39 a.m. on August 21, 2011, North Haledon Police Officer Michael Cedar was driving a marked patrol vehicle when he observed defendant's vehicle driving north on Belmont Avenue crossing over a double yellow line into Cedar's lane of traffic and coming close to his vehicle before swerving back into its lane. After Cedar turned around to follow defendant's vehicle, he observed the vehicle swerve across the double yellow line a second time, and proceeded to stop the vehicle. When Cedar asked for defendant's credentials, he smelled an odor of alcohol on defendant's breath. Defendant initially denied he had been drinking but then admitted to drinking at a party. Cedar further observed defendant's "watery" eyes and "slow, slurred, deliberate manner" of speech.

Cedar then asked defendant to exit his vehicle to perform field sobriety tests. With respect to the horizontal gaze nystagmus test, defendant had nystagmus and maximum deviation in both eyes. On the walk-and-turn test, defendant began before Cedar completed the instructions and repeatedly failed to touch his heel to his toe. Defendant failed to perform the test after being given a second opportunity. During the one-leg stand test, defendant failed to keep his arms at his side, swayed back and forth, and was only able to count to seventeen in the thirty seconds he performed the test. Based on the observations of defendant and his unsatisfactory performance on the field sobriety tests, Cedar placed defendant under arrest and put him in the rear of the patrol car to be transported to police headquarters for a breath test.

At police headquarters, Cedar administered three Alcotests. The first test was aborted due to mouth alcohol. The second test was not within the acceptable tolerance range. Cedar testified that the required twenty-minute waiting period of continuous observation of defendant before the third test began commenced when the second test ended at 2:01 a.m. The third test began at 2:24 a.m. and ended at 2:32 a.m., and resulted in a blood-alcohol concentration (BAC) of .09 percent. The results of the second test were printed at 2:18 a.m. from a computer that was located in a different room from where the Alcotest was performed. According to Cedar, he continuously observed defendant for a twenty-minute period prior to each test by looking at his watch, with Captain Todd Darby carrying out the requisite solution changes on the Alcotest machine after each test. Defendant was subsequently charged with DWI and failure to keep right, N.J.S.A. 39:4-82.

The municipal court judge found defendant guilty of DWI based solely upon the .09 percent BAC reading. Defendant was also found guilty of failure to keep right. The judge determined that Cedar was credible including his testimony that he continuously watched defendant for the required twenty minutes before administering the third and final Alcotest. On the other hand, the municipal court judge found that the "field sobriety tests[] were borderline. [The State] didn't show [defendant] was under the influence. I could have very well found him not guilty just based on the field sobriety tests. And if it was just the field sobriety tests, I probably would find him not guilty." As this was defendant's second DWI conviction, the judge imposed a two-year driver's license suspension,1 an ignition interlock device for one year after restoration of his driving privileges, forty-eight hours in the Intoxicated Driver Resource Center program, and other mandatory fines, costs and penalties. The failure to stay right was merged with the DWI. Defendant's sentence was stayed pending appeal.

Upon a trial de novo on the record, the Law Division judge found defendant guilty anew. In his oral decision, he also noted that Cedar's testimony was credible. In accordance with State v. Sisti, 209 N.J. Super. 148, 151 (App. Div. 1986), the judge examined the proofs of guilt with and without the Alcotest test result. Citing State v. Chun, 194 N.J.54, 135, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008),
he ruled that the State showed by clear and convincing evidence that the Alcotest machine was in working order, was inspected according to procedure, and the test was administered according to official procedure.

The judge rejected defendant's argument that Cedar did not continuously observe him for the required twenty minutes before the third Alcotest to retrieve the second test results at 2:18 a.m. as evidenced by the computer printout. Like the municipal court judge, the Law Division judge found credible Cedar's testimony that he continuously observed defendant for twenty minutes before each test, and someone else could have printed the second test results at 2:18 a.m. The judge agreed with the municipal court's analysis that someone besides Cedar may have printed out the second failed test noting that Darby also participated in the testing. Thus, the judge found that the .09 percent BAC reading was admissible against defendant and conclusive of guilt.

Relying upon the holding in State v. Kashi, 180 N.J.45, 48-49 (2004), that N.J.S.A.39:4-50 is a unified offense which permits a defendant to be found guilty on an alternative basis, the Law Division judge disagreed with the municipal court that there was insufficient observational evidence of defendant's guilt of DWI. The judge reasoned that, given the finding of Cedar's credibility, there was sufficient evidence of guilt based on his field observations of defendant: driving across the double yellow lines twice, odor of alcohol, admission to drinking, slurred speech, and performance on the field sobriety tests. The judge explained that he did not view the field sobriety tests on a basis of "pass or fail," but rather, they are an indication of defendant's impairment. He concluded that defendant's "driving ability was impaired because of the consumption of alcohol to the extent that the operation of his vehicle was a danger to himself and to other vehicles on the highway." The judge imposed the same sentence the municipal court imposed, but denied defendant's request to stay his sentence pending appeal.2

Before us, defendant argues

POINT I

THE ALCOTEST RESULTS ARE INADMISSIBLE, THEREBY WARRANTING ACQUITTAL.

POINT II

THERE WAS NOT SUFFICIENT EVIDENCE TO PROVE [DEFENDANT] GUILTY BEYOND A REASONABLE DOUBT BASED ON THE OBSERVATIONS.

We begin with a review of the applicable legal principles that guide our analysis. In addition, our review of the trial court's factual findings is limited to whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). Unlike the Law Division, we do not independently assess the evidence. State v. Locurto, 157 N.J. 463, 471 (1999). The rule of deference is more compelling where, such as here, the municipal and Law Division judges made concurrent findings. 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. (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). We owe no deference to the trial judge's legal conclusions. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).

It is unlawful for a person to "operate[] a motor vehicle while under the influence of intoxicating liquor . . . ." N.J.S.A. 39:4-50(a). "The statute does not require as a prerequisite to conviction that the accused be absolutely 'drunk' in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988) (quoting State v. Emery, 27 N.J. 348, 355 (1958)), certif. denied, 114 N.J. 473 (1989). Put another way, under the influence means "a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit-producing drugs." State v. Tamburro, 68 N.J. 414, 421 (1975). The goal of the statute "is safety on the highway[s]". Id. at 422.

"Competency to operate a motor vehicle safely is the critical question." Ibid. On the other hand, the State need not prove that "the particular operator could not safely drive a car [.]" Johnson, supra, 42 N.J. at 165. Indeed, "proof that he could operate with safety will not, in and of itself, absolve him." Ibid. (citing State v. Rodgers, 91 N.J.L. 212, 215, 217 (E. & A. 1917). However, "proof of the erratic manner or result of his driving is admissible as evidence of the existence of the statutory condition." Ibid.

Observation by the arresting police officers or failure of the defendant to perform adequately on balance and coordination tests may be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI." State v. Liberatore, 293 N.J. Super.580, 589 (Law Div.) (citing State v. Slinger, 281 N.J. Super538, 543 (App. Div. 1995)), aff'd, 293 N.J. Super.535, 536 (App. Div. 1996). Intoxication may be proven by evidence of a defendant's physical condition. State v. Kashi, 360 N.J. Super. 538, 543, 545 (App. Div. 2003), aff'd, 180 N.J. 45, 49 (2004). A combination of numerous factors is more than enough to support the conclusion that defendant was driving under the influence of alcohol beyond a reasonable doubt. See State v. Morris, 262 N.J. Super. 413, 416, 421 (App. Div. 1993) (upholding a DWI conviction and finding that slurred speech, disheveled appearance, bloodshot eyes, alcoholic odor on the breath and abrasive demeanor were evidence of the defendant's intoxication).

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. (citing State v. Elders, 192 N.J. 224, 244 (2007)). We will not reverse a trial court's evidentiary ruling absent an abuse-of-discretion. Buda, supra, 195 N.J. at 294-95.

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 had been "inspected according to procedure"; (2) "the operator was certified"; and (3) the operator administered the test "according to official procedure." Chun, supra, 194 N.J. at 134; see also State v. Ugrovics, 410 N.J. Super. 482, 489-90 (App. Div. 2009) (examining the application of Chun with respect to the twenty-minute waiting period required before collecting another breath sample in administering the Alcotest), 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 start of the testing sequence." Chun, supra, 194 N.J. at 79. The operator must "begin counting the twenty-minute period anew" in the event "the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth[.]" Ibid.

Applying the above standards, we are satisfied that the Law Division thoroughly reviewed the record and there is sufficient credible evidence that defendant was guilty of DWI. We discern no reason to disturb the ruling to admit the third Alcotest result of .09 percent BAC. The determination was supported by the finding that Cedar gave credible testimony that he observed defendant continuously for twenty minutes before conducting the third Alcotest, and that the computer printout obtained for the second Alcotest during the third test's waiting period did not demonstrate that Cedar failed to properly observe defendant. Accordingly, defendant was properly found guilty of a per se violation of DWI based upon the Alcotest result.

Furthermore, notwithstanding the municipal court's finding, we are satisfied with the Law Division's decision that, relying upon Cedar's credible testimony, his observations of defendant together with defendant's failed performance of the field sobriety tests sufficiently support the DWI conviction.

Affirmed.

1 The municipal court transcript indicates that the judge ordered a "ten-year" license suspension. However, it is clear that the judge either misspoke or there was an error in the preparation of the transcript because defendant's suspension period was two years.

2 We also denied defendant's motion to stay pending appeal.