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State v. Cucinotta


July 19, 2007


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

Per curiam.


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:




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 described defendant's demeanor as "fighting." Defendant admitted that he had consumed three beers.

The officer asked defendant to perform three field tests to determine whether defendant was intoxicated. When Officer Davis asked defendant to recite the alphabet starting with the letter "f", he "mumbled" until he reached the letter "f," and then began reciting the alphabet as requested.

Defendant was unable to properly perform the "one-leg stance test." According to Davis, defendant "failed to keep his leg off the ground and if it wasn't for putting his leg back on the ground he probably would have [fallen] over." Davis said defendant performed that test twice, and was unable to do it properly either time. Defendant did, however, successfully perform the "walk and turn" test.

The State also presented the testimony of Patrolman Brian Grady, who had been called to the scene to administer the Horizontal Gaze Nystagmus (HGN) test, which monitors eye movement in response to a stimulus to determine intoxication. He testified that defendant "failed a total of four out of six elements of the HGN test."

The defense called Herbert Leckie, a former member of the New Jersey State Police, who testified that the HGN test was not administered properly and the results were invalid. He asserted that the administering officer failed to check defendant's pupil size; did not hold the stimulus a proper distance from defendant's eyes; and failed to hold the stimulus for a sufficient length of time to achieve a proper result. Leckie also testified that Davis did not properly administer the oneleg stand test; he did not properly time the test, which compromised "the degree of reliability of that test."

We begin with defendant's first argument, that the stop of his vehicle was unconstitutional. That argument is without merit.

The police may stop a motor vehicle based on a reasonable and articulable suspicion that an occupant of the vehicle has committed a crime or motor vehicle violation. State v. Carty, 170 N.J. 632, 639-40 (2002), modified by 174 N.J. 351 (2002); State v. Locurto, 157 N.J. 463, 470 (1999). Here, the facts fully support the conclusion that Officer Davis had a reasonable and articulable suspicion to stop defendant's vehicle. The temporary Pennsylvania tag that defendant had affixed to the rear window of his vehicle had expired. The tag was invalid and defendant acknowledged as much to Officer Davis. Simply because the car's registration was valid does not mean that the officer did not have a reasonable suspicion to stop the vehicle in the first place.

Next, we turn to defendant's argument that there was no probable cause to arrest him. That argument too is without merit.

Probable cause to make an arrest "exists where a police officer has a well founded suspicion or belief of guilt." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991). The "yard stick" to make an arrest for driving under the influence of alcohol "is whether the arresting officer had reasonable grounds to believe that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50]." Ibid. (internal quotations omitted).

Here, sufficient credible evidence exists to support the Law Division's conclusion that the police officer had probable cause to believe that defendant was operating his vehicle under the influence of alcohol. Davis approached defendant's vehicle from the passenger side; from that position, he smelled alcohol emanating from the car. Defendant was the only occupant. When defendant stepped out of the car, he was combative, the officer observed that his eyes were bloodshot and watery, and defendant admitted to having consumed three alcoholic drinks earlier that evening. The State's witnesses testified that defendant was unable to properly perform the one-legged stand test, and failed four out of six elements of the HGN test. Even if we do not consider the field sobriety tests and the HGN tests, Davis's observations of defendant and the smell of alcohol on defendant's breath were sufficient to provide Davis with a well-founded suspicion that defendant was operating his vehicle while under the influence of alcohol.

That takes us to defendant's final argument, that the State failed to prove beyond a reasonable doubt that defendant refused to provide breath samples. We disagree.

At the scene, the police read defendant his Miranda*fn1 rights. After defendant was arrested and taken to the police station, he was reread his Miranda rights, and the officer explained to him the appropriate breathalyzer instructions. Defendant declined to take the breathalyzer test, and wrote that he was "pleading the Fifth" on a form the officer had asked him to sign, indicating he understood his rights as read. Both the municipal court judge and the Law Division judge watched the videotape of the colloquy between the officer and defendant.

To secure a conviction under the refusal statute, the State must prove: "that (1) the arresting officer had probable cause to believe that defendant had been operating a vehicle while under the influence of alcohol; (2) defendant was arrested for driving while intoxicated; and (3) defendant refused to submit to a breathalyzer test." State v. Wright, 107 N.J. 488, 490 (1987). The standard of proof for refusal to take a breathalyzer test is beyond a reasonable doubt. State v. Cummings, 184 N.J. 84, 95 (2005).

Here, the trial proofs have satisfied that test. As we have indicated, the arresting officer had probable cause to believe that defendant had been operating a vehicle while under the influence of alcohol, and the officer arrested defendant for driving while intoxicated. Defendant refused to take the breathalyzer test - he wrote on the form that he was "taking the Fifth." That evidence is sufficient to show beyond a reasonable doubt that defendant violated the statute. See State v. Widmaier, 157 N.J. 475, 488 (1999) ("'anything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the breathalyzer test constitutes a refusal to do so'" (quoting State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div.) (quoting State v. Corrado, 184 N.J. Super. 561, 569 (App. Div. 1982)), certif. denied, 126 N.J. 323 (1991))).

Affirmed. We vacate the stay of defendant's sentence.

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