Opinion
DOCKET NO. A-3220-11T4
04-03-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN A. BERTOLINI, Defendant-Appellant.
Richard M. Sasso, attorney for appellant. Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Koblitz.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 17-10-P.
Richard M. Sasso, attorney for appellant.
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a trial de novo in the Law Division, defendant John A. Bertolini was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; and failure to observe traffic signals, N.J.S.A. 39:4-81. Defendant was sentenced to a seven-month driver's license suspension and ordered to participate in the Intoxicated Driver Resource Center program for a period of twelve hours. The court also imposed the appropriate fines, costs, and surcharges. We affirm.
On March 2, 2012, this court stayed defendant's driver's license suspension pending this appeal.
We derive the following facts from the record. At approximately 12:32 a.m. on October 4, 2008, Officer Robert Ferreiro of the Warren Township Police Department (WTPD) was driving his patrol car on Liberty Corner Road directly behind defendant's car. He saw defendant drive from the right lane to the far left lane and make a left turn with his right turn signal activated. He followed defendant and stopped him. The recording device in the patrol car recorded the stop, but "the tape ran out" as the officer exited and approached defendant's car.
Officer Ferreiro asked for defendant's credentials. Defendant only provided his driver's license and insurance card at that time. In response to the officer's questions, defendant said it was 12:00 a.m. and he had consumed two beers. While they were conversing, Officer Ferreiro detected the odor of alcohol emanating from inside defendant's car. The officer also saw that defendant's eyes were watery and bloodshot, his hand movements were slow, his face was flushed, his speech was slurred and very slow, and he was speaking very low.
Officer Ferreiro decided to conduct standardized field sobriety tests, and asked defendant to exit and walk to the front of defendant's car. As defendant exited, he staggered, leaned for balance, and put his hand on his car for support. Officer Ferreiro grabbed defendant to keep him from falling, and the two continued to the front of defendant's car. Upon arriving there, defendant swayed and leaned for balance. The officer believed defendant was under the influence of alcohol.
Officer Ferriero conducted the alphabet test. Defendant slurred throughout the test and did not properly recite the alphabet. Officer Ferreiro then conducted the horizontal gaze nystagmus (HGN) test. Defendant displayed nystagmus in both of his eyes, leading the officer to conclude that defendant was more than likely under the influence of alcohol.
Following the HGN test, Officer Ferreiro conducted the walk-and-turn test. Defendant could not maintain his balance while listening to instructions, began the test before instructed to begin, did not touch heel-to-toe, stepped off the line he was instructed to walk, and used his arms for balance. The officer then conducted the one-leg stand test. Defendant swayed while trying to balance, used his arms for balance, hopped on one foot, and put his foot down three times. Throughout the testing, Officer Ferreiro detected the odor of an alcoholic beverage coming from defendant's breath. He concluded that defendant was intoxicated, arrested him, and transported him to police headquarters. During the transport, Officer Ferreiro detected the odor of alcohol in his patrol car. He walked defendant into police headquarters, placed him in the processing room, handcuffed him to a bench, and administered defendant his Miranda rights.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Officer Ferreiro testified that even without the results of the field sobriety tests, he could form an opinion that defendant was intoxicated at the time of the arrest based on what he had observed before the tests.
Officer Robert Clapp, a certified Alcotest operator, administered the Alcotest to defendant. The results were printed on an Alcohol Influence Report (AIR). The AIR revealed defendant had a blood alcohol content (BAC) of 0.16 percent.
The municipal court judge found defendant guilty of DWI. Following a trial de novo, the Law Division judge denied defendant's appeal, and found defendant guilty of DWI. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I THE CASE SHOULD BE DISMISSED BECAUSE OF THE FAILURE TO COMPLETE THE VIDEO[]TAPE.
POINT II THE ALCOTEST RESULTS WERE INADMISS[I]BLE.
POINT III THE PSYCHOPHYSICALS CANNOT BE GIVEN ANY WEIGHT TO SUPPORT A CONVICTION.
On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division—not the municipal court. Id. at 162. However, as in the Law Division, we are not in as good of a position as the municipal court judge to determine credibility and should, therefore, refrain from making new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
I.
Defendant filed a motion to dismiss, contending, as he does here in Point I, that the State violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) by failing to produce a videotape of the entire stop. He argued he had "passed" all of the field sobriety tests, and thus, the videotape would have contained potentially exculpatory evidence had it continued to operate. The Law Division judge found Officer Ferreiro's testimony was "forthright, credible and worthy of belief[,]" and thus determined it was speculative that the videotape would have contained potentially exculpatory evidence. The judge denied the motion, concluding that defendant failed to show bad faith or that the videotape contained exculpatory evidence.
Relying on published and unpublished lower court opinions, defendant also argued, as he does on appeal, that the charges should be dismissed because WTPD regulations and procedures required Officer Ferreiro to record the stop, and his failure to do so deprived defendant of exculpatory evidence. Lower court opinions do not constitute precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3. We, thus, reject this argument. In addition, we decline to address defendant's argument, raised for the first time on appeal, that an excessive delay in the proceedings violated his due process rights. This issue is not jurisdictional nor does it substantially implicate the public interest. State v. Robinson, 200 N.J. 1, 20 (2009). In any event, the argument lacks merit. Defendant never asserted his right to a speedy trial, and failed to show any prejudice. State v. Berezansky, 386 N.J. Super. 84, 99 (App. Div. 2006).
We review a judge's decision on a motion to dismiss under an abuse-of-discretion standard. State v. Hogan, 144 N.J. 216, 229 (1996); State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010). We will not overturn the judge's decision unless the judge "clearly abused" his or her discretion. Hogan, supra, 144 N.J. at 229; State v. Salter, 425 N.J. Super. 504, 513-14 (App. Div. 2012). Applying this standard, we discern no reason to disturb the Law Division's judge's denial of defendant's motion to dismiss.
Where there has been suppression, loss or destruction of physical evidence in a criminal case, the court must consider three factors in determining if a due process violation occurred: "(1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense; and (3) whether defendant was prejudiced by the loss or destruction of the evidence." State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.) (citations omitted), certif. denied, 101 N.J. 335 (1985).
The defendant bears the burden of proving bad faith. Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S. Ct. 1200, 1202, 157 L. Ed. 2d 1060, 1066 (2004). To establish bad faith, we have held that
there must be a finding of intention inconsistent with fair play and therefore inconsistent with due process, or an egregious carelessness or prosecutorial excess tantamount to suppression. In the absence of these conditions, the right of the public to its day in court in the prosecution of properly found indictments should be forfeited only if otherwise there would be manifest and harmful prejudice to defendant.We have also suggested that "bad faith" might apply to loss or destruction of evidence that occurred: "in a calculated effort to circumvent the disclosure requirements," as in Brady, supra,; when there was an "allegation of official animus towards" the defendant; or when there was "a conscious effort to suppress exculpatory evidence." State v. Serret, 198 N.J. Super. 21, 26 (App. Div. 1984) (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2533, 81 L. Ed. 2d 413, 421-22 (1984)), certif. denied, 101 N.J. 217 (1985).
[State v. Clark, 347 N.J. Super. 497, 508-09 (App. Div. 2002) (citations omitted).]
The second Hollander factor requires a showing that "the evidence suppressed, lost or destroyed was sufficiently material to the defense." Hollander, supra, 201 N.J. Super. at 479. To be material, the "evidence must both possess an exculpatory value that was apparent before [it] was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, supra, 467 U.S. at 489, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422; Hollander, supra, 201 N.J. Super. at 479-80. Thus, the defendant must show that the evidence withheld is material exculpatory evidence. State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009). "Alternatively, if the defendant cannot establish that the now lost evidence had apparent exculpatory value and can show only that the evidence was potentially useful or exculpatory, then the defendant can show a due process violation by establishing that the evidence was destroyed in bad faith." Id. at 03 (citations and internal quotation marks omitted).
Here, defendant did not prove bad faith. The videotape "ran out" and did not record anything beyond Officer Ferreiro stopping defendant's car and exiting his patrol car. There is no evidence that Officer Ferreiro intentionally stopped the videotape or that someone intentionally damaged, erased, or altered it. There also is no evidence of egregious carelessness, official animus towards defendant, a calculated effort to circumvent the disclosure requirements, or a conscious effort to suppress exculpatory evidence. Accordingly, the Law Division judge properly denied defendant's motion to dismiss.
II.
A.
Defendant contends in Point II that it was error to admit the Alcotest results into evidence without a proper foundation establishing they were business records, and to permit the State to provide the foundation after the documents were admitted. These contentions lacks merit.
We review a trial court's evidentiary determinations under an abuse-of-discretion standard. State v. Buda, 195 N.J. 278, 294 (2008). An "abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). We discern no abuse of discretion here.
Our Supreme Court has held that as a pre-condition for admissibility of Alcotest results, the State must establish that: (1) the Alcotest was in working order and inspected prior to the procedure in question; (2) the operator was certified; and (3) the operator administered the test according to official procedure. State v. Chun, 194 N.J. 54, 134 (2008), cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).
Defendant did not object to the admission of Officer Clapp's certification card, or dispute that the officer was certified to operate the Alcotest.
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The first Chun factor requires the State to produce and admit the following foundational documents: "(1) the most recent calibration report prior to a defendant's test, with part I--control tests, part II--linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant's test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant's control tests." Id. at 145.
At the trial of this matter on December 15, 2009, the State introduced the above documents, as well as the AIR and the Alcotest calculator. Defendant objected to the admission of the credentials of the coordinator who performed the calibration, the most recent new standard solution report, the certificate of analysis based on the lack of a proper foundation, and the AIR. He argued that Officer Clapp, who had testified about the documents, lacked personal knowledge necessary to authenticate them as business records. The municipal court judge admitted into evidence the most recent calibration report and the credentials of the coordinator who performed the calibration. The trial was adjourned to January 19, 2010.
On December 18, 2009, the State notified defense counsel it would produce Sergeant Matthew Saum, the custodian of the WTPD's Alcotest records, to testify about the documents. At trial, the municipal court judge concluded that dismissal of the charges was too drastic a remedy and permitted Sergeant Saum to testify. The judge admitted into evidence the AIR, the new standard solution report, and the certificate of analysis, subject to Sergeant Saum subsequently authenticating them as business records.
Sergeant Saum testified that the documents were prepared and maintained in the ordinary course of the WTPD's business, and he explained how they were prepared and maintained. The Law Division judge affirmed the municipal court judge's admission of the documents into evidence, finding Sergeant Saum had properly authenticated them as business records.
We find no reason to disturb the documents' admission into evidence. The State had not rested at the time the municipal court judge admitted the documents into evidence, and thus, the State was not precluded from presenting additional testimony about the documents. The State notified defense counsel a month before the trial resumed that Sergeant Saum would testify about the documents. Defendant had ample time to prepare for the testimony; he could have requested an adjournment or further discovery if he believed otherwise. We are satisfied that because Sergeant Saum properly authenticated the documents as business records, the documents were properly admitted into evidence.
B.
Defendant contends that it was error to admit the Alcotest results because Officer Clapp failed to document the start and end of the twenty-minute observation period required by Chun, and failed to visually observe defendant for twenty continuous minutes. These contentions lacks merit as well.
The third Chun factor requires the Alcotest operator to "wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol[,]" and "observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence." Id. at 79. The operator must begin counting the twenty-minute period anew "if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth." Ibid.
Officer Clapp testified that defendant arrived at police headquarters at 12:57 a.m. Officer Ferreiro handcuffed defendant to a bench located two feet from the Alcotest machine in the processing room. Officer Clapp walked into the processing room at approximately 1:00 a.m., secured his weapon, and turned on the Alcotest machine. He looked at his watch, made a mental note of the time, and began timing the twenty-minute observation period. He observed defendant for twenty continuous minutes, and did not see defendant belch or regurgitate. He looked at his watch again to determine that the twenty minutes had ended, and made a mental note of the time. During the observation period, Officer Ferreiro spoke to defendant and administered defendant's Miranda rights. Officer Clapp inputted data into the Alcotest machine in order to properly operate it, read to defendant the standard Alcotest statement, and explained the testing procedure to defendant. Officer Clapp then took an ambient air blank test at 1:26 a.m. Defendant then gave three breath samples. Office Clapp was looking at defendant from 1:00 a.m. to 1:26 a.m., did not change his gaze, and Officer Ferreiro never obscured or blocked Officer Clapp's view of defendant.
There is no authority that requires the Alcotest operator to document the beginning and end of the twenty-minute observation period. In addition, there is no authority requiring constant eye-to-eye contact with the defendant. To the contrary, "[t]he observation may be conducted through non-visual as well as visual means, so long as the observer is able to detect whether the driver has ingested or regurgitated something that would confound the Alcotest results." State v. Carrero, 428 N.J. Super. 495, 513 (App. Div. 2012).
The record confirms that Officer Clapp observed defendant continuously for twenty minutes before conducting the Alcotest, and was able to detect whether defendant ingested or regurgitated something that would confound the Alcotest results. Accordingly, the Alcotest results were properly admitted into evidence.
III.
Defendant argues in Point III that the psychophysical tests should have been given no weight or were invalid because Officer Ferreiro failed to take field notes. Defendant also contends Officer Ferreiro failed to conduct the tests in accordance with the National Highway Traffic Safety Association manual. Defendant cites no authority to support the first contention. We, therefore, reject that contention, and focus on the second contention.
Officer Ferreiro testified he had received training regarding the HGN and field sobriety tests, received an HGN certificate upon successful completion of the HGN course, and conducted several prior DWI investigations. The officer also testified about how he conducted the tests and that even without them, he could form an opinion that defendant was intoxicated at the time of the arrest based on his observations of defendant. The Law Division judge found Officer Ferreiro's testimony as a whole was "forthright, responsive, credible and therefore worthy of belief." The judge concluded that the "totality of circumstances" -- the officer's observations of defendant, defendant's BAC of 0.16 percent and the field sobriety tests -- supported defendant's DWI conviction beyond a reasonable doubt.
In order to convict a defendant of driving while intoxicated, the State need not produce expert testimony. State v. Bealor, 187 N.J. 574, 588 (2006). Rather,
even in the absence of expert proofs of a defendant's blood alcohol concentration, a conviction for driving while under the influence of alcohol will be sustained on proofs of the fact of intoxication — a defendant's demeanor and physical appearance — coupled with proofs as to the cause of intoxication — i.e., the smell of alcohol, an admission of the consumption of alcohol, or a lay opinion of alcohol intoxication.It is well-established that an officer's subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. See State v. Cryan, 363 N.J. Super. 442, 454-55 (App. Div. 2003) (sustaining DWI conviction based on proofs of defendant's bloodshot eyes, hostility and strong odor of alcohol); State v. Cleverly, 348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on the defendant's operation of a motor vehicle without its headlights on and the officer's observation of the odor of alcohol on the defendant's breath, inability to perform field sobriety tests, combativeness, and swaying); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001) (sustaining DWI conviction on officer's subjective observations of the defendant's watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and admission to drinking alcohol earlier in the day); State v. Bryant, 328 N.J. Super. 379, 383 (App. Div. 2000) (holding that the prosecutor could have proceeded on the DWI charge with evidence other than breathalyzer results).
[Id. at 588-89 (citations omitted).]
Officer Ferreiro formed an opinion that defendant was intoxicated before he conducted the field sobriety tests. He did so based on his observations of defendant. We are satisfied that there is sufficient credible evidence present in the record supporting the Law Division judge's findings. We discern no reason to disturb the judge's determination that defendant was guilty of DWI beyond a reasonable doubt.
Defendant's DWI conviction is affirmed, the stay of his driver's license suspension is vacated, and the matter is remanded to the Law Division for sentencing.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION