July 30, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEXANDER VALENTINO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, 2006-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2007
Before Judges Wefing, C.S. Fisher and Yanotti.
Defendant was convicted of driving while intoxicated, N.J.S.A. 39:4-50, following a trial de novo in the Law Division, and he has appealed. Having reviewed the record in light of the contentions advanced on appeal, we affirm.
Police Officer John Beasley of the Stratford Police Department was on routine patrol in the early morning hours of March 20, 2005, when he observed a car on Warwick Road being driven by defendant cross the double yellow line and nearly hit a pedestrian crossing sign as it swerved back. Officer Beasley signaled the car to pull over, and it did so without incident. When he approached the car and spoke to defendant through the open window, he detected a very strong odor of alcohol. Defendant's eyes appeared watery and bloodshot. When asked to produce identification, defendant presented his driver's license and registration but could not locate a current insurance identification card. Defendant's movements while searching for these documents appeared slow but not fumbling. The officer asked defendant if he had consumed any alcoholic beverages, and defendant responded that he had four beers. Defendant told the officer that he was coming from his mother's house in Runnemede.
Concerned that defendant might be intoxicated, Officer Beasley asked him to step out of the car. As defendant did so, he held onto the inside of the car for support and balance. Officer Beasley administered the horizontal gaze nystagmus test, the one-legged stand test and the walk-and-turn test. Officer Beasley's testimony detailed defendant's unsatisfactory performance on these tests.
Officer Beasley told defendant that he was being placed under arrest for driving while intoxicated. The officer testified that at that point defendant pleaded for the officer to give him a break because a conviction would represent his third conviction for driving while intoxicated.
Officer Beasley placed defendant in his patrol car and transported him to headquarters where, after advising defendant of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), he administered a Breathalyzer test. He took three samples. The reading on the first was .07. Officer Beasley testified that defendant had not given a full breath sample and that he told defendant that if he did so again, he would charge defendant with refusing to take the test. N.J.S.A. 39:4-50.4(a). Defendant's next two samples both yielded readings of .10.
At trial, defendant testified that he had been working in his home from approximately 5:00 p.m. until approximately 11:30 p.m., applying stripping solutions to the floors in his living room and kitchen. He said he worked without any protective gear such as a face mask or gloves and that the windows in the rooms were closed.
His brother-in-law, who was helping him get the house in order, also testified. He said he had worked with defendant on the floors for approximately one-half hour but that the chemicals bothered him. For the balance of the evening, he worked straightening the basement and the garage. The two men left together.
Defendant then went to his brother's house, where the two watched a movie and had one beer apiece. Defendant then invited his brother to see the work he was doing at his house, and the two drove there. Defendant's brother brought two bottles of beer with him, and they each drank one at defendant's house. Defendant resumed his stripping work. His brother left, and defendant decided to visit an after-hours establishment, Balloons. As he drove past, he decided not to enter because the people standing outside appeared considerably younger than he. It was at that point that Officer Beasley signaled defendant to pull over. Defendant testified that when he told Officer Beasley that he had four beers, he clarified his statement by saying that he and his brother had each had two beers.
Defendant's brother and brother-in-law both testified for defendant, as did two character witnesses. Defendant also presented two expert witnesses, Thomas Innocente, an expert in the Breathalyzer, and Marvin Kaminski, Ph.D., a board-certified toxicologist. Dr. Kaminski testified as an expert on the adverse effects of chemicals on the body.
Mr. Innocente said that Officer Beasley's testimony was inconsistent. If the officer had considered the first breath sample insufficient, he should not have tested it. The fact that he tested it indicated that Beasley saw no problem with the manner in which defendant produced that sample. He also testified that the Breathalyzer machine is unable to distinguish between ethanol alcohol in the body as the result of consuming alcoholic beverages and alcohol such as methanol that can be absorbed into the body through the use of chemical products like those defendant had been using on his floors. Dr. Kaminski testified about the absorption of alcohol that would take place during floor stripping and about the different ratios of such alcohol and ethanol alcohol contained in alcoholic beverages.
Defendant raises three points on appeal:
POINT ONE: THE DEFENDANT WAS NOT SUBJECT TO A MANDATORY JAIL SENTENCE PURSUANT TO STATE V. LUTHE
POINT TWO: THE COURT DID NOT ADHERE TO THE PROPER STANDARD OF REVIEW POINT THREE: THE STATE FAILED TO PROVE THAT DEFENDANT WAS INTOXICATED BEYOND A REASONABLE DOUBT
In 2004, the Legislature amended N.J.S.A. 39:4-50(a)(1) to provide that anyone convicted for the third time of driving while intoxicated "shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient program approved by the Intoxicated Driver Resource Center . . . ." At the conclusion of the proceedings in municipal court, the municipal court judge sentenced defendant to serve that 180-day period by spending 150 days in the Camden County Jail house arrest program, followed by 30 days in the Sheriff's Labor Assistance Program. The State did not object to that sentence.
By the time defendant's appeal was heard in the Law Division, however, this court had decided State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006), in which we decided that a sentencing judge lacks the discretion to permit a defendant to serve the 180-day sentence in that fashion. We concluded that the statute was clear, and the Legislature intended to make incarceration for the full 180 days mandatory. When the Superior Court judge found defendant guilty of driving while intoxicated after the trial de novo, he amended defendant's sentence to 180 days in the county jail.
We reject defendant's argument that this represented an improper increase in his sentence on appeal. Rather, the sentence imposed by the municipal court judge was illegal, and an illegal sentence may be corrected at any time. State v. Chambers, 377 N.J. Super. 365, 369 (App. Div. 2005); State v. Ercolano, 335 N.J. Super. 236, 243 (App. Div. 2000), certif. denied, 167 N.J. 635 (2001).
We also reject defendant's contention that the Law Division judge who presided over the trial de novo in Superior Court applied the incorrect standard of review. The function of a Law Division judge hearing a trial de novo after municipal court proceedings is to determine the case completely anew, based upon that municipal court record, giving due but not necessarily controlling regard to the credibility determinations made by the municipal court judge. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000).
A trial de novo by definition requires the trier of fact to make his own findings of fact. He need, furthermore, give only due, although not necessarily controlling, regard to the opportunity of the municipal court judge to judge the credibility of the witnesses. His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function in respect of defendant's guilt or innocence. [State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983).]
Our review of this record demonstrates to us that the Superior Court judge properly performed his task on the trial de novo.
In his third argument, defendant contends that the prosecution did not prove beyond a reasonable doubt that he drove while intoxicated, in violation of N.J.S.A. 39:4-50. He points to the testimony about his use of chemical solvents and contends that the alcohol he absorbed through that use accounted for his performance on the psychophysical tests administered by Officer Beasley.
It was, however, up to the trier of fact to determine what weight, if any, to attribute to that testimony. That testimony was in no sense determinative of the outcome. Here, the Law Division judge set forth in his opinion the weaknesses he perceived in that expert testimony. As an appellate court, we may not disregard the judge's assessment of the testimony. In sum, the record contained more than sufficient evidence to sustain a determination that defendant was guilty under N.J.S.A. 39:4-50.
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