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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3476-17T3






                   Submitted January 21, 2020 – Decided February 5, 2020

                   Before Judges Ostrer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Municipal Appeal No. 6158.

                   Robert Pentangelo, attorney for appellant.

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Patrick F. Breen, Assistant
                   Prosecutor, of counsel and on the brief).


          Ibanga Archibong appeals from his convictions for operating a motor

vehicle while under the influence of intoxicating liquor (DUI),  N.J.S.A. 39:4-
50, and refusal to submit to a chemical test,  N.J.S.A. 39:4-50.4a, following a

trial de novo in the Law Division. He contends the State failed to sustain its

burden of proof. We discern "'sufficient credible evidence . . . in the record' to

support the trial court's findings." State v. Robertson,  228 N.J. 138, 148 (2017)

(quoting State v. Johnson,  42 N.J. 146, 162 (1964)). And, we are particularly

loath to disturb concurrent findings of two courts. See State v. Locurto,  157 N.J. 463, 474 (1999). Therefore, we affirm.

      In support of the DUI conviction, the Law Division credited the arresting

State trooper, the sole trial witness, who described defendant's erratic driving,

physical characteristics, and field-sobriety-test performance. Defendant failed

to maintain his lane by repeatedly driving on the fog line between his lane and

the shoulder to his left, and crossing the skip line between his lane and the one

to his right. Once stopped, defendant demonstrated sluggish movements; his

eyes were watery and bloodshot; and the trooper detected the smell of alcoholic

beverages. Defendant performed poorly on the walk-and-turn test and the one-

leg-stand test, and he admitted consuming one beer.

      The trial court was not obliged to accept defendant's attempt to ascribe

"innocent connotations" to his actions – for example, his eyes were watery and

bloodshot because he was tired. Cf. State v. Citarella,  154 N.J. 272, 279-81

(1998) (stating that an officer is not required to accept "purely innocent

connotations . . . to a person's actions" if the actions are also "'consistent with

guilt'") (quoting State v. Arthur,  149 N.J. 1, 11 (1997)). The totality of the

State's evidence was sufficient to support the finding that defendant was driving

under the influence; he suffered a "substantial deterioration or diminution of

[his] mental faculties or physical capabilities," which "so affect[ed] [his]

judgment or control . . . as to make it improper for him to drive on the highway."

State v. Tamburro,  68 N.J. 414, 421 (1975). See also State v. Bealor,  187 N.J.
 574, 590 (2006); State v. Cryan,  363 N.J. Super. 442, 456 (App. Div. 2003);

State v. Morris,  262 N.J. Super. 413, 421 (App. Div. 1993).1

      In support of the refusal conviction, the trooper testified that in advance

of administering the Alcotest chemical breath test, he performed all the

prerequisite routines, and defendant consented to take the test. Nonetheless,

defendant failed to produce sufficient air in three opportunities. Defendant does

not challenge the State's proofs of the first three elements of the refusal

violation. See State v. Marquez,  202 N.J. 485, 502 (2010) (explaining that, to

sustain a conviction, the State must prove (1) probable cause to believe a

  Defendant's refusal was additional circumstantial evidence supporting his
conviction, see State v. Stever,  107 N.J. 543, 559 (1987), although the Law
Division did not rely on it for that purpose.
defendant was driving under the influence; (2) the defendant was arrested for

doing so; (3) the officer asked the defendant to take the chemical breath test,

and informed the defendant of the consequences if he or she refused; and (4) the

defendant refused). He challenges the finding that he refused. But, it is of no

moment that defendant blew some small, inadequate amount of air into the

mouthpiece. He also blew air around the mouthpiece while puffing out his

cheeks, to exaggerate his effort.    As defendant provided no evidence of a

relevant physical disability, see State v. Monaco,  444 N.J. Super. 539, 551 (App.

Div. 2016), the trial court justifiably concluded that the State met its burden.

See, e.g., State v. Schmidt,  206 N.J. 71, 87 (2011) (affirming refusal conviction

in case of defendant's "unexplained and repeated failures to provide the

necessary breath amounts to produce valid test results").

      To the extent not addressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).



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