STATE OF NEW JERSEY v. PETER J. DITO

NOT FOR PUBLICATION WITHOUT THE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-2699-16T3


STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

PETER J. DITO,

     Defendant-Respondent.
__________________________________________

              Argued November 14, 2017 – Decided January 11, 2018

              Before Judges Yannotti and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Municipal Appeal
              No. 16-40.

              Annmarie Cozzi, Senior Assistant Prosecutor,
              argued the cause for appellant (Gurbir S.
              Grewal, Bergen County Prosecutor, attorney;
              Annmarie Cozzi and Elizabeth R. Rebein,
              Assistant Prosecutor, of counsel and on the
              briefs).

              E. Gregory M. Cannarozzi argued the cause for
              respondent (Law Office of E. Gregory M.
              Cannarozzi, attorney; E. Gregory M. Cannarozzi
              and Jordan D. Yuelys, of counsel and on the
              brief).

PER CURIAM
      The State of New Jersey appeals from an order entered by the

Law Division on January 23, 2017, which dismissed a summons

charging defendant Peter J. Dito with refusing to submit to a

breath test to measure the alcohol level of his blood because the

summons cited 
N.J.S.A. 39:4-50.2 rather than 
N.J.S.A. 39:4-50.4a.

We reverse.

      On December 13, 2015, an officer of the Oradell Police

Department (OPD) issued to defendant Summons No. 0244-E15-002005

for driving while intoxicated (DWI), contrary to 
N.J.S.A. 39:4-

50, and Summons No. 0244-E15-002007 for refusing to submit to a

breath test, contrary to 
N.J.S.A. 39:4-50.2. Defendant moved to

dismiss    the   refusal    charge    on       the   ground   that    the    summons

referenced 
N.J.S.A. 39:4-50.2 rather than 
N.J.S.A. 39:4-50.4a.

      On   April   21,     2016,    the        municipal   court     judge    denied

defendant's motion. Defendant then pled guilty to both charges,

reserving the right to appeal the court's denial of his motion to

dismiss the refusal charge. Defendant provided a factual basis for

the pleas. He admitted that on December 13, 2015, at approximately

7:36 p.m., he operated a vehicle while under the influence of

alcohol, after drinking wine with his dinner.

      Defendant stated that he was stopped by an officer of the

OPD, who asked him to perform certain physical tests, after which

the   officer    placed    him     under       arrest   for   DWI.    The    officer

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transported defendant to Oradell's police headquarters. There, the

officer read the Attorney General's standard statement for motor

vehicle   operators,   pursuant   to   
N.J.S.A.   39:4-50.2(e),     which

informed defendant that the law required him to submit samples of

his breath "for the purpose of testing to determine alcohol

content." The statement indicated that if defendant refused to

provide the breath samples, "you will be issued a separate summons

for the refusal" and the "court may find you guilty of both refusal

and [DWI]."

     The statement also informed defendant of the penalties that

the court could impose if he is found guilty of refusal, which

include a license revocation for up to twenty years, a fine of up

to $2000, installation of an ignition interlock, and referral to

an Intoxicated Driver Resource Center (IDRC). In addition, the

statement indicated that defendant did not have a right to have

an attorney, physician, or other person present for the purpose

of taking the breath test.

     Defendant told the municipal court judge that the officer

asked him to provide breath samples and he refused. After defendant

stated that he wanted a lawyer, the officer then read an additional

paragraph from the Attorney General's standard statement:

           Your answer is not acceptable. The law
           requires that you submit samples of your
           breath for breath testing. If you do not

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           answer, or answer with anything other than
           "yes," I will charge you with refusal. Now, I
           ask you again, will you submit to breath
           testing?

Defendant responded, "No, I need advice" and "I don't know what

to do."

     The   municipal   court   judge   accepted   defendant's   plea   and

sentenced defendant on both charges. For the refusal charged in

Summons No. 0244-E15-002007, the judge sentenced defendant to a

$306 fine, $33 in court costs, a $100 Drunk Driving Enforcement

Fund surcharge, twelve hours in an IDRC, and a seven-month license

suspension. For the DWI charged in Summons No. 0244-E15-002005,

the judge sentenced defendant to a fine of $256, $33 in court

costs, a $50 fee for the Violent Crimes Compensation Board, a $125

DWI surcharge, a $75 Safe Neighborhood Fund assessment, a $100

Drunk Driving Enforcement Fund surcharge, twelve hours in an IDRC,

and a three-month license suspension, to run concurrent with the

license suspension imposed for the refusal.

     Thereafter, defendant filed an appeal to the Law Division and

argued that the municipal court judge erred by denying his motion

to dismiss the refusal charge. The Law Division judge considered

the appeal, and on January 9, 2017, placed an oral decision on the

record.




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       The judge found that defendant's summons for refusal to submit

the breath test had incorrectly cited 
N.J.S.A. 39:4-50.2. The

judge stated that because the summons should have cited 
N.J.S.A.

39:4-50.4a. The judge concluded that the error was fatal because

it failed to inform defendant of the nature of the charge against

him.

       The judge entered an order dated January 23, 2017, which

dismissed    Summons   No.   0244-E15-002007,   and   re-affirmed   the

sentence that the municipal court judge had imposed on Summons No.

0244-E15-002005. The State's appeal followed.

       On appeal, the State argues that the Law Division judge erred

by dismissing the summons because it cited 
N.J.S.A. 39:4-50.2,

rather than 
N.J.S.A. 39:4-50.4a. The State contends the summons

provided defendant with adequate notice of the charge and the

penalties he faced if found guilty of refusal.

       In response, defendant argues that the Law Division judge

correctly decided to dismiss the refusal charge. He argues that

because the summons cited 
N.J.S.A. 39:4-50.2 rather than 
N.J.S.A.

39:4-50.4a, he was deprived of his constitutional right to due

process. Defendant contends he was not properly apprised of the

penalties for refusal or given the opportunity to defend himself.

       When reviewing a decision on a municipal appeal to the Law

Division, we defer to the trial court's fact finding if "the

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findings made could reasonably have been reached on sufficient

credible evidence present in the record." State v. Kuropchak, 
221 N.J. 368, 382-83 (2015) (quoting State v. Johnson, 
42 N.J. 146,

162 (1964)). However, we owe no deference to the trial court's

decision on an issue of law "and the consequences that flow from

established facts[,]" which we review de novo. State v. Hubbard,


222 N.J. 249, 263 (2015).

     We begin our consideration of the appeal with the language

of the relevant statutes. 
N.J.S.A. 39:4-50.2 provides in pertinent

part that:

          [a]ny person who operates a motor vehicle on
          any public road, street or highway . . . shall
          be deemed to have given his consent to the
          taking of samples of his breath for the
          purpose of making chemical tests to determine
          the content of alcohol in his blood; provided,
          however, that the taking of samples is made .
          . . at the request of a police officer who has
          reasonable grounds to believe that such person
          has been operating a motor vehicle in
          violation of the provisions of [N.J.S.A.]
          39:4-50 . . . . No chemical test . . . may be
          made or taken forcibly against physical
          resistance thereto by the defendant. The
          police officer shall, however, inform the
          person arrested of the consequences of
          refusing to submit to such test in accordance
          with section 2 [N.J.S.A. 39:4-50.4a] of this
          amendatory and supplementary act. A standard
          statement,     prepared    by     the    chief
          administrator, shall be read by the police
          officer to the person under arrest.




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     In addition, 
N.J.S.A. 39:4-50.4a provides that "the municipal

court shall revoke the right to operate a motor vehicle of any

operator who, after being arrested for [DWI] . . . refuse[d] to

submit to a [chemical test] provided for in section 2 of . . .

[N.J.S.A. 39:4-50.2] when requested to do so." In determining

whether a person is guilty of refusal,

          [t]he municipal court shall determine . . .
          whether the arresting officer had probable
          cause to believe that the person had been
          driving or was in actual physical control of
          a motor vehicle . . . while the person was
          under the influence of intoxicating liquor or
          a narcotic, hallucinogenic, or habit-inducing
          drug or marijuana; whether the person was
          placed under arrest . . . and whether he
          refused to submit to the test upon request of
          the officer; and if these elements of the
          violation are not established, no violation
          shall issue.

          [Ibid.]

     In State v. Marquez, the Court stated that "[t]o identify all

of the elements of a refusal offense, we must look at the plain

language of both statutes because although they appear in different

sections, they are plainly interrelated." 
202 N.J. 485, 501 (2010).

The Court stated that because 
N.J.S.A. 39:4-50.2 and 
N.J.S.A.

39:4-50.4a "cross-reference one another internally" and "rely on

each other substantively[,]" the statutes "must therefore be read

together." Id. at 502. The Court noted that:



                                7                           A-2699-16T3
            [a] careful reading of the two statutes
            reveals four essential elements to sustain a
            refusal conviction: (1) the arresting officer
            had probable cause to believe that defendant
            had been driving or was in actual physical
            control of a motor vehicle while under the
            influence of alcohol or drugs; (2) defendant
            was arrested for driving while intoxicated;
            (3) the officer requested defendant to submit
            to a chemical breath test and informed
            defendant of the consequences of refusing to
            do so; and (4) defendant thereafter refused
            to submit to the test.

            [Id. at 503 (citing 
N.J.S.A. 39:4-50.2(e),
            39:4-50.4a(a); State v. Wright, 
107 N.J. 488,
            490 (1987)).]

     The Marquez Court held that reading the standard statement

is a necessary element of a refusal conviction, and rejected the

contention that the procedural safeguards of 
N.J.S.A. 39:4-50.2

are not a substantive element of the refusal offense. Id. at 506.

The Court stated that "[t]he fact that motorists are deemed to

have implied their consent, pursuant to [N.J.S.A. 39:4-50.2], does

not alter that conclusion." Ibid. The Court held that 
N.J.S.A.

39:4-50.2   and   
N.J.S.A.   39:4-50.4a   "impose   an   obligation    on

officers to inform drivers of the consequences of refusal." Ibid.

     We note that in State v. Cummings, the Court held that a

conviction of refusal requires proof beyond a reasonable doubt.


184 N.J. 84, 89 (2005). In Cummings, the Court observed that


N.J.S.A. 39:4-50.4a is the "exact statutory provision applicable

to breathalyzer refusal cases," and that "care should be taken to

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list . . . 
N.J.S.A. 39:4-50.4a in the summons charging refusal."

Id. at 90 n.1.

       The Cummings Court did not, however, hold that dismissal is

required when the summons cites 
N.J.S.A. 39:4-50.2 rather than


N.J.S.A. 39:4-50.4a. Ibid. (finding "no prejudice resulting from

it"). Indeed, such a conclusion would be inconsistent with the

Court's later decision in Marquez, where the Court held that the

elements of the refusal offense are drawn from both 
N.J.S.A. 39:4-

50.2 and 
N.J.S.A. 39:4-50.4a. Marquez, 
202 N.J. at 502.

       Thus, in this case, the trial court erred by finding that the

summons issued was fatally flawed because it failed to cite


N.J.S.A. 39:4-50.4a. Since the elements of refusal are found in

both 
N.J.S.A. 39:4-50.2 and 
N.J.S.A. 39:4-50.4a, the citation of

only the former statute does not require dismissal of the summons.

Dismissal of the charges under these circumstances would exalt

form   over   substance,   an   approach   our   courts   have   "properly

rejected." State v. Fisher, 
180 N.J. 462, 472 (2004).

       Furthermore, the trial court erred by finding that defendant

was prejudiced and denied due process because he was charged under


N.J.S.A. 39:4-50.2 rather than 
N.J.S.A. 39:4-50.4a. Here, the

record shows that the officer read defendant the Attorney General's

standard statement, thereby informing defendant that if he failed

to submit to the breath test, he would be charged with refusal.

                                    9                              A-2699-16T3
       The standard statement further informed defendant of the

penalties that the court could impose if he is found guilty of

refusal. Moreover, after defendant indicated he wanted to speak

with   an   attorney,   the   officer     read   defendant      the    additional

paragraph from the standard statement, which indicated that his

answer was not acceptable.

       Therefore, defendant was fully informed of the charge and the

penalties that could be imposed if he refused to provide the breath

samples. Defendant's claim that he could not defend himself against

the charge has absolutely no support in the record and does not

warrant further comment. R. 2:11-3(e)(2).

       Reversed and remanded for entry of a judgment reinstating

defendant's    conviction     and   sentence     on   Summons    No.    0244-E15-

002007. We vacate any stay of the sentence previously imposed. We

do not retain jurisdiction.




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