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State v. Cucinotta

July 19, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH M. CUCINOTTA, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, A-29-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 3, 2007

Before Judges Axelrad and Winkelstein.

Defendant, Joseph Cucinotta, was charged with four traffic offenses: driving while intoxicated, N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a; reckless driving, N.J.S.A. 39:4-96; and driving an unregistered vehicle, N.J.S.A. 39:3-4. Following a trial de novo in the Law Division, he appeals from his conviction for refusal to take a breathalyzer test. He was acquitted of the remaining charges. The court imposed the appropriate fines, costs, and a surcharge; ordered defendant to attend the Intoxicated Driver's Resource Center; and suspended his driving privileges for seven months. The court stayed the sentence pending appeal.

On appeal, defendant raises the following issues:

POINT I. THE STOP OF THE DEFENDANT WAS UNCONSTITUTIONAL.

POINT II. THERE WAS NOT PROBABLE CAUSE TO ARREST MR. CUCINOTTA.

POINT III. THE STATE DID NOT PROVE THAT CUCINOTTA REFUSED TO GIVE BREATH SAMPLES SUBMIT BEYOND A REASONABLE DOUBT.

We affirm defendant's conviction and vacate the stay of his sentence.

Defendant was tried on May 5, 2006, in the Mantua Township Municipal Court. The court simultaneously heard the trial testimony and the testimony pertaining to the suppression motion.

The charges arose out of a traffic stop that occurred on February 17, 2006, at approximately 1:20 a.m. Mantua police officer Jason Davis was on patrol on Route 55 when he observed that the vehicle defendant was driving had a temporary Pennsylvania license tag that had expired. Officer Davis stopped the vehicle and called in the license plate number to his command center to check the status of the car and the registrant. He was informed that the car's registration was valid.

When Davis approached the passenger side of the vehicle and asked defendant for his documents, he could smell the odor of alcohol. Defendant confirmed that his temporary license tag had expired.

Davis then asked defendant to step out of the car. He testified that defendant was "somewhat irate" about getting out of the vehicle. He further testified that defendant's eyes were bloodshot and glassy, his face was pale, and he had an odor of alcohol emanating from his breath. Defendant was "shouting and rambling" and his speech was "whiny and stuttering." The officer ...


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