STATE OF NEW JERSEY v. LUCIA POLITO

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1175-16T2

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

LUCIA POLITO,

          Defendant-Appellant.
_______________________________

              Argued April 26, 2018 – Decided May 4, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Municipal Appeal
              No. 2016-01.

              Samuel Louis Sachs argued the cause for
              appellant (Samuel Louis Sachs, LLC, attorneys;
              Samuel Louis Sachs, of counsel; Lauren E.
              Scardella, on the brief).

              Monica A. Martini, Assistant Prosecutor,
              argued the cause for respondent (Angelo J.
              Onofri, Mercer County Prosecutor, attorney;
              Alycia    I.   Pollice-Beyrouty,    Assistant
              Prosecutor, of counsel and on the brief).

PER CURIAM
     Following a trial de novo in the Law Division, defendant

Lucia Polito was convicted of driving while intoxicated (DWI),


N.J.S.A. 39:4-50(a).      Because this was defendant's second DWI

conviction, the judge sentenced her to a two-year driver's license

suspension; ninety days in jail, with eighty-eight days suspended

and the remaining two days to be served in the Intoxicated Driver

Resource Center (IDRC) program; and thirty days of community

service.     The judge also imposed appropriate fines, costs, and

surcharges, and ordered defendant to install an ignition interlock

device for one year after completion of her suspension. We affirm.

     The procedural history and facts of this case are set forth

at length in the Law Division judge's opinion and need not be

repeated here in the same level of detail.     On December 5, 2014,

Officer Luis Navas stopped defendant's car because of a traffic

violation.    While speaking to defendant, the officer detected the

odor of alcohol on her breath.   Defendant's eyes were droopy, red,

and watery, and her speech was slow and slurred.

     Officer Navas had defendant perform a series of standard

field sobriety tests, including recitation of the alphabet and

counting backwards.      Defendant had difficulty performing both

tasks.     During defendant's first attempt at the "walk-and-turn

test," the officer observed that defendant's "steps were not heel-

to-toe."     She then turned incorrectly on the second attempt, and

                                  2                         A-1175-16T2
failed to follow the officer's direction to keep her hands at her

sides.    Officer   Navas   ended   the   "one-leg   stand"   test     after

defendant "swayed and put her foot down, complaining of pain in

her right knee."

     The officer arrested defendant for DWI and took her to the

police station.     While observing all of the required protocols,

Officer Navas performed two chemical breath tests on defendant

using the Alcotest machine.         Defendant's blood alcohol content

(BAC) measured 0.13% on both tests, well above the 0.08% BAC legal

limit.   See 
N.J.S.A. 39:4-50(a).

     After considering all of the evidence submitted during the

trial, the municipal court judge determined that Officer Navas was

credible and, based upon his observations of defendant's condition

and the results of the Alcotest, found defendant guilty of DWI

beyond a reasonable doubt.      Following a trial de novo, the Law

Division judge rendered a detailed written opinion and likewise

concluded that defendant drove her vehicle while intoxicated in

violation of 
N.J.S.A. 39:4-50(a).1        This appeal followed.

     On appeal, defendant raises the following contentions:




1
   After the judge who conducted the trial de novo transferred to
another vicinage, a different Law Division judge granted
defendant's motion for a stay of her sentence pending appeal.

                                     3                               A-1175-16T2
          POINT I

          THE LAW DIVISION ERRED IN NOT MAKING FINDINGS
          OF FACT WITH REGARD TO DEFENDANT'S EXPERTS
          DURING THE DE NOVO REVIEW OF DEFENDANT'S
          CONVICTION.

          POINT II

          ALLOWING THE STATE TO REOPEN ITS CASE-IN-CHIEF
          TO ADMIT ["]WORKSHEET A["] WAS A MISTAKEN
          EXERCISE OF DISCRETION.

          POINT III

          THERE WAS NOT SUFFICIENT CREDIBLE EVIDENCE IN
          THE RECORD FOR THE LAW DIVISION TO CONCLUDE
          THAT THE STATE HAD PROVEN A PER SE CASE OF
          INTOXICATION.

          POINT IV

          BASED ON OFFICER NAVAS'S OBSERVATIONS, THERE
          WAS NOT SUFFICIENT CREDIBLE EVIDENCE IN THE
          RECORD FOR THE LAW DIVISION TO CONCLUDE THAT
          THE STATE HAD PROVEN THE DEFENDANT'S GUILT
          BEYOND A REASONABLE DOUBT.

     When the Law Division conducts a trial de novo on the record

developed in the municipal court, our appellate review is limited.

State v. Clarksburg Inn, 
375 N.J. Super. 624, 639 (App. Div. 2005).

          The Law Division judge was bound to give "due,
          although not necessarily controlling, regard
          to the opportunity of a [municipal court
          judge] to judge the credibility of the
          witnesses." . . . Our review is limited to
          determining whether there is sufficient
          credible evidence present in the record to
          support the findings of the Law Division
          judge, not the municipal court.



                                4                           A-1175-16T2
           [Ibid. (alteration in original) (quoting State
           v. Johnson, 
42 N.J. 146, 157 (1964)).]

      Because the Law Division judge is not in a position to judge

the credibility of witnesses, he or she should defer to the

credibility findings of the municipal court judge.        Ibid. (citing

State v. Locurto, 
157 N.J. 463, 474 (1999).       Furthermore, when the

Law Division agrees with the municipal court, the two-court rule

must be considered.      "Under the two-court rule, appellate courts

ordinarily should not undertake to alter concurrent findings of

fact and credibility determinations made by two lower courts absent

a very obvious and exceptional showing of error."        State v. Reece,


222 N.J. 154, 166 (quoting Locurto, 
157 N.J. at 474).

      Applying   these   principles,   we   conclude   that    defendant's

arguments are without sufficient merit to warrant discussion in a

written opinion.    R. 2:11-3(e)(2).        The Law Division's thorough

analysis of all of the issues was comprehensive and correct, and

we are satisfied there was sufficient credible evidence in the

record to support his findings and conclusions.               We therefore

affirm defendant's DWI conviction substantially for the reasons

expressed by the Law Division judge.         We add only the following

brief comments concerning the argument defendant raises in Point

II.




                                   5                               A-1175-16T2
     After the State rested its case, defendant made a motion to

suppress    the   results   of   the   Alcotest   because    the   State   had

neglected to introduce a "Tolerance Worksheet," also known as

"Worksheet A," during its case in chief.2         The State argued it was

not required to introduce the worksheet, and the municipal court

judge stated he was denying the motion because he "want[ed] to

review the documents."         Later in the trial, however, the State

asked for permission to re-open its case so it could introduce the

worksheet.    After the judge granted the application, Officer Navas

authenticated the document, and defendant had the opportunity to

cross-examine him before it was admitted in evidence.

     Contrary     to   defendant's     contention,     there    was   nothing

untoward about the admission of the worksheet.           The Supreme Court

has long held that a judge has the discretion to reopen a case

after one or both of the parties rest.            State v. Wolf, 
44 N.J.
 176, 191 (1965) (holding that "when the ends of justice will be

served by a reopening, it ought to be done").                While the State

should     have   introduced     the   document   in   its     case-in-chief,

defendant suffered absolutely no prejudice by its late admission.


2
   "Worksheet A" must be submitted by the State where the Alcohol
Influence Report (AIR) is offered into evidence and there are two
reported test samples. State v. Chun, 
194 N.J. 54, 150 (2008).
It contains a series of mathematical calculations used to determine
"[w]hether [the] [t]wo [b]reath [s]amples are in [t]olerance
[u]nder [a]cce[p]table [t]olerance [s]tandard[s]." Id. at 155.

                                       6                              A-1175-16T2
Defendant had ample opportunity to rebut the evidence presented

in the worksheet and, at oral argument before us, did not dispute

the mathematical accuracy of the information contained in it.

    Affirmed.   The stay pending appeal is vacated.




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