STATE OF NEW JERSEY v. VINCENT DIARCHANGEL

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NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3976-17T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

VINCENT DIARCHANGEL,

           Defendant-Appellant.


                    Argued March 27, 2019 – Decided June 12, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Municipal Appeal No. 17-04.

                    John Menzel argued the cause for appellant.

                    Roberta Di Biase, Supervising Assistant Prosecutor,
                    argued the cause for respondent (Bradley D. Billhimer,
                    Ocean County Prosecutor, attorney; Samuel J.
                    Marzarella, Deputy Executive Assistant Prosecutor, of
                    counsel; Roberta Di Biase, on the brief).

PER CURIAM
      Defendant Vincent DiArchangel appeals from a March 27, 2018 Law

Division decision convicting him of driving while intoxicated (DWI),  N.J.S.A.

39:4-50, after a trial de novo. See R. 3:23-8(a)(2). We affirm.

      Defendant initially entered a conditional guilty plea to DWI, reserving his

right to appeal the municipal court judge's admission into evidence of the

alcohol influence report and accompanying worksheet, finding his blood alcohol

content (BAC) was 0.15 percent. The municipal court judge admitted the report

after testimony from the New Jersey State Trooper who administered the

breathalyzer test on the night of the stop. Defendant contested the admission of

the report, contending the State did not adequately authenticate "core

foundational documents." The municipal court found that the State established

the requisite twenty-minute observational period before the test was

administered, a finding defendant also challenged on appeal. See State v. Chun,

 194 N.J. 54, 79 (2008).

      This was defendant's third DWI conviction—which was treated as a

second, resulting in the imposition of a two-year loss of license, installation of

an alcohol ignition interlock device thereafter, forty-eight hours in the

Intoxicated Drivers Resource Center (IDRC) in lieu of jail time, plus thirty days

of community service along with appropriate fines and penalties.              The


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prosecutor dismissed charges of speeding and reckless driving. Defendant's

sentence was stayed by consent pending appeal to the Law Division, and then

stayed again at the Law Division level by the trial judge.

        The facts underlying the DWI conviction are as follows. Defendant was

observed on February 20, 2016, operating a motor vehicle at speeds in excess of

ninety miles per hour on the Garden State Parkway. When stopped, the trooper

immediately suspected that defendant was under the influence, and performed

sobriety field tests. Defendant smelled of alcohol, his eyes were bloodshot and

watery, his speech slurred, his gait slow and fumbling, and he swayed with knees

bent.

        After defendant's unsuccessful attempts at the completion of those tests,

the trooper drove him to the Galloway State Police barracks, where the state

police breathalyzer machine was not operating. At 12:39 a.m., the trooper and

defendant proceeded the three miles from the troop station to the Galloway

Township Municipal Police Department. They arrived at 12:43 a.m., the time a

dispatcher at 12:55 a.m. logged in as a "delayed note" on the computer aided

dispatch (CAD) report. The dispatcher noted the arrival time in non-military

language.




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      The trooper placed his phone, weapon, and other electronic devices in a

gun locker, and entered the room in which breathalyzer tests were administered.

At 1:09 a.m., he performed the first calibrated or control test. At 1:11 a.m.,

defendant breathed into the alcotest machine. On a signal from the machine,

defendant blew into it a second time. The result of defendant's breathalyzer was

a BAC of 0.15 percent.

      Defendant raises the following points on appeal:

            I.   Because the State Failed to Establish that
            Defendant Was Observed Continuously for [Twenty]
            Minutes Before He Submitted Breath Samples, This
            Court Should Exclude the Breath Test Result and
            Remand This Case for Trial.

            II.  Because the State Failed to Authenticate Certain
            Core Foundational Documents Necessary for
            Admission of the Breath Test Result, This Court Should
            Exclude These Documents and the Breath Test Result
            and Remand This Case for Trial.

                                        I.

      When a municipal court decision is appealed, the court "conduct[s] a trial

de novo on the record below." R. 3:23-8(a)(2). The Law Division judge makes

his or her "own findings of fact and conclusions of law [while] defer[ring] to the

municipal court's credibility findings." State v. Robertson,  228 N.J. 138, 147

(2017).


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       On an appeal to our court, we review the record to determine whether there

is "sufficient credible evidence present in the record." State v. Johnson,  42 N.J.
 146, 162 (1964). We "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." State v. Locurto,  157 N.J. 463, 474 (1999)

(citing Midler v. Heinowitz,  10 N.J. 123, 128-29 (1952)). Once satisfied with

the findings and outcome, our "task is complete and [we] should not disturb the

result." Reversal is justified only if the courts' decisions are clearly mistaken

"and so plainly unwarranted that the interests of justice demand intervention and

correction[.]" Johnson,  42 N.J. at 162.

       If a driver is convicted of DWI, he or she "must satisfy an onerous

standard to obtain a stay of a license suspension by the Law Division."

Robertson,  228 N.J. at 153. Such a showing includes demonstrating that there

is a substantial question which warrants a stay, that the safety of the community

will not be threatened or jeopardized by the license suspension stay, and that

defendant will not flee, although the latter consideration is rarely present. Id. at

152.




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                                        II.

      The Law Division judge made substantial findings of fact regarding the

claimed failure to adhere to the Chun twenty-minute observation period. See

 194 N.J. at 79. The judge said that the State's proofs established on the record,

as found by the municipal court judge, that the officer did honor the appropriate

twenty-minute observation period as the notation on the CAD clearly indicated

it was a "delayed entry." Thus, in the opinion of the Law Division judge, the

proofs established compliance with the twenty-minute observational period. We

see nothing in the record that would cause us to question the concurrent findings

of fact and credibility determinations on this subject made by the municipal

court judge and the Law Division judge. Locurto,  157 N.J. at 474. We will

neither disturb the result nor discuss the issue further. The courts' decisions

were not clearly mistaken and the interests of justice do not warrant our

intervention.

                                        III.

      Defendant's next basis for appeal also warrants only brief discussion.

Defendant's contention that the foundational documents for admission of the

breathalyzer test were not adequately authenticated has no merit. The municipal

court judge concluded that the state trooper's inability to identify the individuals


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who had signed the calibration report and the new standard solution report was

inconsequential. He considered all the foundational documents to have been

adequately authenticated, including the operator's qualification card, the most

recent calibration report, the most recent standard solution change report, the

certificate of analysis, the control test, the alcohol influence report, and the

worksheet. The municipal court judge therefore found that the device was in

proper working order, had been inspected pursuant to protocol, the trooper was

certified to administer the test, and the test was administered in accord with

official procedures. The Law Division judge reached the same conclusions on

trial de novo.

      After reviewing the municipal court record, the Law Division judge found

that the standard for admission is "not very high, it's really that the document

purports . . . to be [that] which . . . the proponent says that it is." As a result, he

too found the documents to be admissible.

      In Chun, the Court observed because the breathalyzer machine "is not

'operator-dependent,' . . . the record demonstrates that the operator will play a

relatively lesser role here than has been the case in the past." Chun,  194 N.J. at
 140. The Chun Court noted the enumerated documents supporting the test,

which include those defendant now challenges on appeal, are merely business


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records ordinarily considered reliable. Id. at 142-45. Given the nature of these

documents, that the trooper who administered the breathalyzer test could not

identify signatures, or was unfamiliar with the processes which resulted in a

particular document, were not relevant to the admission of the results. As the

Chun Court found, the breathalyzer machine was one "not subject to influences

from the operator" and therefore, the results require less than was previously the

case. Id. at 140. We see no reason to alter the concurrent findings of fact on

this issue either. Nothing in the record suggests the alcotest results were not

reliable, or the machine was not functioning properly. We do not find the court's

decisions to be clearly mistaken or to demand our intervention and correction.

No error has been demonstrated. Locurto,  157 N.J. at 474.

                                       IV.

      Finally, we note that despite the fact this defendant had been previously

convicted of driving while intoxicated on two other occasions, and that on this

occasion his blood alcohol was .15, the Law Division judge granted a stay of the

license suspension without a showing pursuant to Robertson, and essentially

upon the consent by the State of the issuance of the stay. The stay in the

municipal court was by actual consent of the prosecutor. We remind the court

and counsel to consider the Supreme Court's exhortation in Robertson. A


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showing of a substantial question, and safety to the community, should at least

be considered before such stays are granted.

      Affirmed. The stay of license suspension is vacated.




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