Opinion
DOCKET NO. A-1120-13T2
04-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERIC MENZZOPANE, Defendant-Appellant.
Luke C. Kurzawa argued the cause for appellant (Reisig & Associates, LLC, attorneys; Matthew R. Reisig and James P. Brady, on the brief). Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and St. John. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 13-35. Luke C. Kurzawa argued the cause for appellant (Reisig & Associates, LLC, attorneys; Matthew R. Reisig and James P. Brady, on the brief). Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief). PER CURIAM
Defendant Eric Menzzopane appeals from two Law Division orders: an October 17, 2013 order, following trial de novo, denying a request to vacate his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a) and an October 31, 2013 order dismissing his motion to amend or alter the factual findings of the court. On appeal to this court, defendant maintains his breath test results were inadmissible because police failed to properly observe him for exactly twenty minutes prior to administering the Alcotest and the presence of a second machine in the room tainted the results obtained from the machine used to test him. Defendant also alleges due process violations resulted from the summary denial, without oral argument, of his motion to amend the Law Division's findings. More specifically, he asserts:
POINT I
THE LAW DIVISION ERRED IN THE SAME MANNER AS THE MUNICIPAL COURT AND ALSO BY FAILING TO EVEN CONSIDER DEFENDANT'S MOTION FOR AMENDMENT PURSUANT TO [RULE] 1:7-4
POINT II
THE ALLEGED ALCOTEST BREATH TEST RESULT IN THE WITHIN MATTER SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE DUE TO THE FACT THAT THE PRESENCE OF THE SECOND ALCOTEST MACHINE RUNNING IN THE SAME ROOM AS THE MACHINE USED TO TEST DEFENDANT. THE PRESENCE OF THE SECOND MACHINE TAINTS THE RELIABILITY OF THE TEST RESULT RENDERED BY THE MACHINE USED TO TEST THE DEFENDANT OR, AT A MINIMUM, GIVES THE APPEARANCE THAT THE RESULT IS NOT RELIABLE.
POINT III
THE ALLEGED ALCOTEST BREATH TEST RESULT IN THE WITHIN MATTER SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE DUE TO THE FACT THAT THE STATE FAILED TO DEMONSTRATE THAT THE
ALCOTEST OPERATOR FOLLOWED PROPER PROCEDURE IN ADMINISTERING THE ALCOTEST TO THE DEFENDANT BY ADHERENCE TO THE TWENTY[-] MINUTE OBSERVATION PERIOD.
We find these arguments untenable and unfounded. We affirm.
The facts leading to defendant's arrest are not disputed. On August 4, 2012, at approximately 4:22 a.m., State Police Trooper Kartik Birudaraju conducted a motor vehicle stop in Upper Freehold Township and arrested defendant under suspicion of DWI and other charges. Defendant disputed the admissibility of the Alcotest results, which evinced defendant's blood alcohol concentration (BAC) of .17 percent. Following an evidentiary hearing pursuant to N.J.R.E. 104, conducted by Municipal Court Judge Bonnie Goldman, the test results were admitted into evidence. Thereafter, defendant entered a conditional guilty plea to DWI, and the remaining charges were dismissed. Judge Goldman ordered defendant's driver's privileges suspended for seven months, the use of an ignition interlock device for a subsequent six months, twelve hours of participation in the intoxicated driver program, and imposed $664 fines and assessments.
In addition to police charging defendant with DWI, defendant was issued tickets for driving with a suspended license, N.J.S.A. 39:3-40; failure to maintain lanes, N.J.S.A. 39:4-88(b); and reckless driving, N.J.S.A. 39:4-96.
"[An] Alcotest measures the amount of alcohol present in a person's breath as an indirect measure of the amount of alcohol present in the person's blood." State v. Carrero, 428 N.J. Super. 495, 505 (App. Div. 2012) (citation omitted).
"When the . . . admissibility of evidence . . . is subject to a condition, and the fulfillment of the condition is in issue, that issue is to be determined by the judge." N.J.R.E. 104(a).
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On appeal to the Law Division, defendant argued Trooper Birudaraju's observation prior to administering the Alcotest, was flawed because he could not readily account for approximately seven minutes of the period following arrest, but before the Alcotest was actually started. Defendant maintains the Alcotest results were inadmissible because the test was not administered immediately following a twenty-minute observation period, as required by State v. Chun, 194 N.J. 54, 79, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008)).
Defendant additionally challenged the accuracy of the Alcotest results because the machine on which defendant was tested was located in a room where a second Alcotest machine was plugged in, but not in use. Defendant asserted radio frequency interference (RFI) emitted from the second machine altered the readings of the machine.
Following the October 17, 2013 trial de novo on the municipal court record, Judge Anthony J. Mellaci, Jr. independently reviewed the evidence and found the Alcotest results were admissible and accurate. Judge Mellaci credited Trooper Birudaraju's Rule 104 hearing testimony regarding defendant's arrest, his period of observation, and the administration of the Alcotest, which included:
[The State:] Okay. That period of time, did [defendant] have anything to eat.
[Trooper Birudaraju:] No.
Q: Drink?
A: No.
Q: Smoke?
A: No.
Q: Did he place anything into his mouth?
A: No.
Q: Did anything come out of his mouth during that period of time?
A: No.
Q: Did he burp or regurgitate?
A: No.
Q: In fact, did you check his oral cavity at any point?
A: I did.
Q: When was that?
A: Prior to securing him, excuse me, immediately after securing him to the bench, I had him open his mouth with his tongue up.
Q: Okay. And was there anything present in the oral cavity?Judge Mellaci found no impediment to the test results because the observation period exceeded twenty minutes, crediting Trooper Birudaraju's testimony that he provided continuous observation and his assurance no foreign substances were introduced into defendant's mouth prior to administering the breath test.
A: No.
Judge Mellaci also found no factual support for the argument RFI altered the accuracy of the test results rendered by the machine testing defendant. The record showed defendant failed to offer expert testimony supporting such a theory. Further, Judge Mellaci noted "'ample support [existed] for . . . finding that the Alcotest is well-shielded from the impact of any potential RFI that might otherwise affect a reported result or limit our confidence in the accuracy of the test results,'" citing Carrero, supra, 428 N.J. Super. at 509 (quoting Chun, supra, 194 N.J. at 89). Judge Mellaci imposed the same sentence as the municipal court, which was stayed for ten days pending appeal to this court.
On October 28, 2013, defendant filed a motion to amend the Law Division's findings of fact, pursuant to Rule 1:7-4(b), arguing the presence of the second Alcotest machine affected the reliability of defendant's test results because of electromagnetic interference (EMI). Defendant contended the conventional telephone cord connecting the modem to the internet of each Alcotest machine was "unshielded and as such . . . [became] an antenna to transmit EMI produced by the Alcotest . . . and . . . receive[] EMI produced by another Alcotest." The Law Division summarily dismissed the motion, without oral argument.
On November 4, 2013, defendant filed this appeal. Defendant's sentence was stayed by the Law Division, pending this court's review.
A municipal court conviction is first reviewed by the Superior Court de novo. R. 3:23-8(a). The Law Division independently issues findings of facts and conclusions of law based on the record, as developed by the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)); see also State v. Ross, 189 N.J. Super. 67, 75 (App. Div.) (stating the Law Division performs "an independent fact-finding function in respect of defendant's guilt or innocence"), certif. denied, 95 N.J. 197 (1983). Our review of the Law Division decision is limited to "whether there was sufficient credible evidence in the record to have led to the judge's findings." Avena, supra, 281 N.J. Super. at 333. See also State v. Locurto, 157 N.J. 463, 474 (1999) (stating the Appellate Division "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").
Defendant suggests Judge Mellaci not only abused his discretion, but also ignored defendant's due process rights by dismissing his post-trial motion to amend the court's factual findings. He suggests the basis of the judge's decision was not sufficiently explained and the motion was dismissed without the benefit of oral argument. These arguments have no merit.
Parties may request a court to alter or amend its findings of fact or reconsider its conclusions of law, pursuant to Rule 1:7-4(b). See Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 1:7-4 (2015) ("This rule expressly permits a motion for reconsideration or rehearing to be filed under this rule or [Rule] 4:49-2 . . . following entry of the order or judgment."). Parties moving to amend or alter findings of fact must "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions that counsel believes the court has overlooked or on which it has erred." R. 1:7-4(b). "'[As] a matter within the sound discretion of the [c]ourt,'" reconsideration should only "'be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
In this matter, defendant argues his motion was not considered. We disagree. After the trial de novo concluded, defendant attempted to introduce new factual allegations along with a different theory to challenge the accuracy of the Alcotest. As a general proposition, EMI may be emitted from an Alcotest machine. See State v. Chun (Special Master's Report), No. 58,879, 2007 N.J. LEXIS 39, at *63 (Feb. 13, 2007) ("RFI refers to interference which enters the instrument from the outside whereas electromagnetic interference (EMI) refers to interference which the instrument generates. . . . Both RFI and EMI are subsets of electromagnetic compatibility . . . ."). Although the effect of RFI on the Alcotest instrument's components and its ability to impair the accuracy of its results has been rejected by the Court, Chun, supra, 194 N.J. at 89, the existence and effect on testing results by EMI purportedly emitted by a second machine has not been so established and, therefore, does not fall within the ambit of subjects warranting judicial notice. See N.J.R.E. 201(b) (stating a court may take judicial notice of facts of "generalized knowledge . . . so universally known that they cannot reasonably be the subject of dispute"). Such a theory can only be proven by expert testimony, see State v. Kelly, 97 N.J. 178, 209 (1984) ("The primary justification for permitting expert testimony is that the average [fact-finder] is relatively helpless in dealing with a subject that is not a matter of common knowledge."), yet neither the municipal court nor the Law Division record contains evidence supporting this claim.
Judge Mellaci found no basis to amend his findings and conclusions because no probative, competent evidence as to the issue was presented. Absent proof to the contrary, the judge properly relied upon the Court's analysis of the RFI issue as reported in Chun's Special Master's report, which concluded "[t]he New Jersey process and procedure of administration of evidential breath tests provides adequate protection against both radio-frequency and electro[]magnetic interference." Chun, supra, 2007 N.J. LEXIS 39, at *279. See also Carrero, supra, 428 N.J. Super. at 510 (stating the Supreme Court in Chun "unambiguously" adopted the special master's conclusion "the Alcotest is 'well-shielded' against electronic interference"). We determine the judge did not act "in an arbitrary, capricious, or unreasonable manner" in dismissing defendant's motion. D'Atria, supra, 242 N.J. Super. at 401. "[M]otion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the [c]ourt must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration." Id. at 401-02.
Relying on a theory that his Alcotest results were "clearly compromised" by the existence of a second Alcotest unit located in the same room, emitting EMI and negating an accurate reading, defendant next requests a reversal and remand because the test failed to comply with Chun's guidelines. See Chun, supra, 194 N.J. at 134. He offers numerous factual assertions without providing any factual basis for his assertions. The argument lacks merit as it was never raised, supported by expert testimony, or tested at trial. R. 2:11-3(e)(2).
Defendant's final challenge argues the judge erroneously admitted the Alcotest results because police "failed to observe [him] for the required twenty[-]minute period immediately preceding [his] breath test." Defendant maintains Trooper Birudaraju's testimony failed to account for the seven-minute-period from the time he ended his twenty-minute observation until he commences operation of the Alcotest unit. Thus, the observation period did not immediately precede the breath test as required. We are not persuaded.
The Court mandated that prior to the administration of an Alcotest, police "must wait twenty minutes . . . to avoid overestimated readings due to residual effects of mouth alcohol." Chun, supra, 194 N.J. at 79.
The [Alcotest] software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must 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. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.The State bears the burden of proving compliance by clear and convincing evidence. State v. Campbell, 436 N.J. Super. 264, 270 (App. Div.), certif. denied, 220 N.J. 208 (2014). "[T]he operator's principal role is to ensure that the procedures leading to the actual taking of the test have been strictly followed." State v. Ugrovics, 410 N.J. Super. 482, 490 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010). Nevertheless, "[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." Carrero, supra, 428 N.J. Super. at 513 (citing State v. Filson, 409 N.J. Super. 246, 258-61 (Law Div. 2009)).
[Ibid.]
In this matter, Trooper Birudaraju could not recite his actions during this seven-minute period with exactitude. However, he explained after he cleared defendant's mouth for any objects or liquids, defendant remained within his constant observation for the entire period before commencing the Alcotest. During this time, defendant did not inhale, ingest, burp, regurgitate, or place anything in his mouth. The trooper was subject to rigorous cross-examination and unwaveringly attested to retaining "full vision" of defendant "to make sure . . . his hands [we]ren't moving" as defendant was not cuffed, and the trooper was certain defendant "didn't move his hands up to his face or his mouth. He was told [to] keep his hands where I can see [them], keep his hands down to his side[,] which he did."
Upon review of the record, we find no evidence to suggest an event occurred within the additional seven-minute-period to contaminate the breath test results or otherwise impact their reliability. See Filson, supra, 409 N.J. Super. at 261. Nor do we conclude adding seven minutes to the observation period defied the procedural requirements set forth in Chun. The judge credited Trooper Birudaraju's testimony, which supported the judge's finding that the State proved compliance by clear and convincing evidence. We defer to these credibility determinations. Accordingly, the Alcotest results were properly admitted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION