STATE OF NEW JERSEY v. EDWARD HELMES, JR

NOT FOR PUBLICATION WITHOUT THE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-4499-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

EDWARD HELMES, JR.,

     Defendant-Appellant.
____________________________

              Submitted December 18, 2017 – Decided March 9, 2018

              Before Judges Accurso and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Municipal Appeal
              No. 15-048.

              Pringle Quinn Anzano, PC, attorneys                  for
              appellant (Doris Cheung, on the brief).

              Fredric M. Knapp, Morris County Prosecutor,
              attorney   for  respondent   (Paula  Jordao,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Edward Helmes, Jr., appeals from his conviction

following a trial de novo of driving while intoxicated (DWI),


N.J.S.A. 39:4-50.         He contends the police lacked probable cause
to arrest him for DWI, the police erred improperly administered

the chemical breath test which showed a blood alcohol content

(BAC) of .19%, and the court erred by relying on the blood alcohol

test results.   We affirm.

     Following a motor vehicle stop, defendant was charged in the

East Hanover Municipal Court with DWI, 
N.J.S.A. 39:4-50; making

an improper turn, 
N.J.S.A. 39:4-124; reckless driving, 
N.J.S.A.

39:4-96; and traffic on marked lanes, 
N.J.S.A. 39:4-88.         During

the municipal court trial, the State presented testimony from East

Hanover Patrolmen David Littman and Edward Zakrzewski.      Defendant

testified on his own behalf and presented Joseph Tafuni, who was

qualified as an expert in standard field sobriety testing and the

administration of the Alcotest chemical breath test.

     The municipal court judge found defendant guilty of DWI, but

found defendant not guilty of the remaining offenses based on his

determination   they   were   "part   and   parcel"   of   defendant's

commission of the DWI offense.1   Defendant was sentenced to a two-

year suspension of driving privileges, thirty days of community

service, forty-eight hours at the intoxicated driver's resource



1
   Although it is unnecessary to our determination of defendant's
appeal, we observe that a municipal court judge must make a finding
as to a defendant's guilt on each charge. The court addresses the
issue of merger of offenses only if it finds a defendant guilty
of more than one charge in the first instance.

                                  2                            A-4499-15T1
center, payment of the required statutory fines and penalties, and

the use of an ignition interlock device for a one-year period

following   restoration    of   his    driving   privileges.      Defendant

appealed.

     In the trial de novo before Judge Catherine I. Enright,

defendant   argued   the   police     lacked   probable   cause   to   arrest

defendant for DWI because the field sobriety tests administered

by Officer Littman were inconclusive and the officer failed to

consider defendant's physical limitations affected his ability to

perform the tests.    Defendant asserted that Littman did not read

to defendant the Attorney General Standard Statement concerning

the consequences for refusal to supply a breath sample.                     See


N.J.S.A. 39:4-50.2(e).     Defendant also argued the Alcotest results

lacked normal indicators of reliability and failed to account for

defendant's alleged high fever.        Defendant further contended there

was insufficient evidence showing he was observed by the officers

for the required twenty-minute period prior to the administration

of the breath test, which yielded the .19% BAC upon which the

court based its guilty finding.

     In her comprehensive and well-reasoned written decision,

which includes detailed findings of fact based on the evidence

presented, Judge Enright determined there was probable cause for

defendant's arrest for DWI, Officer Littman read defendant the

                                       3                               A-4499-15T1
Attorney General Standard Statement on refusal, defendant was

observed by the officers for the required twenty-minute period

prior to administration of the chemical breath test, and the breath

test credibly established defendant operated his vehicle with a

BAC of .19%.     See 
N.J.S.A. 39:4-50 (providing that a defendant

commits the offense of DWI by operating a motor vehicle with a BAC

of .08% or higher).      Judge Enright found defendant guilty of DWI

and imposed the same sentence as the municipal court.       This appeal

followed.

     Defendant    presents    the   following   arguments     for    our

consideration:

            POINT I.

            Standard of Review.

            POINT II.

            The Superior Court Erred In Finding That There
            Was Probable Cause for the Arrest of Appellant
            Helmes.

            POINT III.

            The Superior Court Erred in Finding That
            Appellant Helmes Was Read the Attorney General
            Standard Statement.

            POINT IV.

            The Superior Court Erred In Determining That
            Appellant Was Appropriately Observed For A
            Twenty-Minute Observation Period Before The
            Second Alcotest.


                                    4                           A-4499-15T1
           POINT V.

           The Superior Court Erred In Accepting the
           Inadequate and Unreliable Results of the
           Second Alcotest As Credible Evidence.

           POINT VI.

           Under the Cumulative Error Doctrine, Appellant
           Helmes Is Entitled to Reversal Of His DWI
           Conviction.

      In our review of a Law Division decision on a municipal

appeal, we consider "whether the findings made could reasonably

have been reached on sufficient credible evidence present in the

record."   State v. Stas, 
212 N.J. 37, 49 (2012) (citing State v.

Locurto, 
157 N.J. 463, 471 (1999)).             "Unlike the Law Division,

which conducts a trial de novo on the record, Rule 3:32-8(a), we

do not independently assess the evidence." State v. Gibson, 
429 N.J. Super. 456, 463 (App. Div. 2013), rev'd on other grounds, 
219 N.J. 227 (2014) (citing Locurto, 
157 N.J. at 471).                We defer to

the trial judge's findings of fact.        Stas, 
212 N.J. at 49.

      "However, no such deference is owed to the Law Division or

the   municipal   court   with   respect   to    legal   determinations      or

conclusions reached on the basis of the facts."           Ibid.    Our review

of the Law Division's legal determinations or conclusions based

upon the facts is plenary.       Manalapan Realty, LP v. Twp. Comm. of

Manalapan, 
140 N.J. 366, 378 (1995); see also State v. Handy, 206



                                     5                                A-4499-15T
1 N.J.    39,   45   (2011)   (stating   "appellate   review   of     legal

determinations is plenary").

       On appeal, defendant reasserts the arguments he made before

the Law Division.    Having carefully considered the record, we find

the arguments lack sufficient merit to warrant discussion in a

written opinion, R. 2:11-3(e)(2), and affirm substantially for the

reasons in Judge Enright's written decision.

       Affirm.




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