January 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL A. COPPOLA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4634.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2008
Before Judges Winkelstein and Yannotti.
Defendant Michael A. Coppola was charged with driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50(a), refusal to submit to a Breathalyzer test, N.J.S.A. 39:4-50.4a; failure to exhibit a vehicle registration certificate, N.J.S.A. 39:3-29; failure to maintain motor vehicle insurance coverage, N.J.S.A. 39:6B-2; and careless driving, N.J.S.A. 39:4-97. The municipal court judge dismissed the vehicle registration and insurance charges; merged the reckless driving charge; found defendant guilty on the DWI and refusal charges; and imposed certain sentences.
Defendant appealed to the Law Division. Judge Ernest M. Caposela filed a written opinion and entered an order on March 29, 2007, finding defendant guilty on the DWI and refusal charges and imposing a ten-year suspension of defendant's driving privileges; 180 days of incarceration; a DWI surcharge of $200; a fine of $800; appropriate assessments; and court costs. This appeal followed. For the reasons that follow, we affirm.
At the trial in the municipal court, the State presented evidence from Officer Mark Bekier (Bekier) of the Clifton Police Department (CPD). Bekier testified that on May 14, 2005, he was on duty at approximately 2:46 a.m. when he observed a vehicle stopped in the lane of traffic on Clifton Avenue near Paulson Avenue. The vehicle was facing east and was stopped at a green light. Bekier said that when the light turned red, the vehicle proceeded through the intersection and continued on Clifton Avenue at a very slow rate of speed.
Bekier testified that the vehicle crossed the double yellow line on the road several times. Bekier followed the vehicle about five blocks. He said that it was traveling about five or ten miles per hour. Eventually, the vehicle came to a stop. The front passenger side of the vehicle was up on the sidewalk. Officer Zapola arrived on the scene, as a back up. Bekier observed the driver exit his car. Bekier identified defendant as the driver of the vehicle.
Bekier testified that defendant "was unable to keep [his] balance and he was stumbling." According to Bekier, defendant was using the vehicle to maintain his balance. Bekier said that, when he approached, he could smell a strong odor of an alcoholic beverage. Bekier also said that defendant was slurring his speech and he spoke in a very low tone. Bekier stated that, in his opinion, defendant was heavily intoxicated.
Officer John Smith (Smith) of the CPD also testified. Smith was on duty at 2:46 a.m. on May 14, 2005. He was detailed to the scene as a back up to Officer Zapola. Smith stated that defendant smelled of alcohol and he was shouting profanities at Bekier and Zapola. Smith observed Zapola's attempt to administer a one-legged stand test. Smith explained that the test requires an individual to raise either of his feet about six inches off the ground, with his hands at his side, and hold the foot in the air for about thirty seconds.
Smith testified that he did not hear Zapola's instructions to defendant but he saw defendant attempt to perform the test. He stated that defendant was "staggering and trying to keep his balance, holding onto the car while holding his foot in the air." Smith asserted that, at this point, defendant was arrested and defendant was taken to police headquarters. Smith stated that based on his experience, it was his opinion that defendant was extremely intoxicated.
In addition, Officer Ulikowski (Ulikowski) of the CPD testified that on May 14, 2005, he was called to police headquarters to operate the Breathalyzer machine. Ulikowski said that he was about five feet away from defendant. Ulikowski smelled the odor of an alcoholic beverage. He said that defendant's eyes were red, his speech was "slightly slurred," and he was "pretty cocky and combative." The officer stated that defendant was seated on a stool next to the Breathalyzer machine, and Zapola read defendant the statements on a standard form, which contained the requirements for providing a breath sample after a DWI arrest. Defendant was asked, "Now will you submit to samples of your breath?" Defendant responded affirmatively.
Ulikowski said that he began to operate the machine to begin the first test. He stated that, at the beginning of the "analysis phase" of the test, he inserts a mouthpiece into the breath tube. Ulikowski gave defendant instructions on how to blow into the machine, and defendant responded by stating, "I'm not doing that." The officer said to defendant, "[Y]ou're not gong to blow into the machine?" According to Ulikowski, defendant replied "with something along the lines of I'm not blowing into the fucking machine[.]" Zapola again asked defendant whether he would "submit to giving samples of [his] breath?" Defendant's response was no. On cross examination, Ulikowski stated that he attempted to administer the Breathalyzer test at 3:50 a.m.
Defendant presented testimony from his father, Eugene Coppola (Coppola). He said that defendant works with him in his business, Metal Light Incorporated. According to Coppola, on the evening of May 12, 2005, defendant spent the night in his home. The next day, Coppola woke defendant at around 5:00 a.m. or 5:15 a.m. They went to Saugerties, New York to look at a machine. They returned to Mahwah around 12:30 p.m. or 12:45 p.m. They had lunch and defendant left the premises around 2:00 p.m. Coppola stated that did not see his son until the early morning hours of May 14, 2005. He testified that he had no knowledge of whether defendant had anything to drink in the meantime.
Coppola said that defendant is allergic to "grass or dust." He stated that defendant takes medication for this allergy, which affects him from sometime in April through early June. Coppola asserted that defendant's allergy causes him to have a "runny nose, . . . bloodshot eyes, sniffles, sneezing and [to be] lethargic." Coppola said that when went to Saugerties with defendant, the allergies were "even worse" because they were "in farm country."
The municipal court judge placed his decision on the record on June 14, 2006. The judge found that the officers had reasonable grounds to believe that defendant was operating his vehicle in violation of N.J.S.A. 39:4-50, and the attempt to administer the Breathalyzer test was in accordance with the applicable statute. The judge noted that one officer observed that defendant was driving very erratically and his vehicle crossed over the double yellow line on the road three times, while traveling at a slow rate of speed. The judge also noted that the officers detected the smell of an alcoholic beverage on defendant, he was combative, and had balance problems. In addition, the judge found that, although defendant initially agreed to submit a breath sample, "[c]learly there was a refusal" to submit to the Breathalyzer test.
The judge also found that defendant was operating his vehicle while intoxicated. The judge found the testimony of the three officers to be credible. The judge added that, while defendant's father was credible as to his assertion that defendant had an allergy condition, the judge did not believe that defendant's allergy caused him to appear intoxicated. The judge found that defendant was intoxicated. He concluded that the State had proven beyond a reasonable doubt that defendant's "physical and mental capabilities were deleteriously affected by the alcohol he consumed and it was improper for [defendant] to be driving on the night in question."
In sentencing defendant, the judge noted that this was defendant's fourth DWI offense. The judge imposed a ten-year suspension of defendant's driving privileges; 180 days in the county jail; a fine of $800; a $200 DWI surcharge; various assessments; and court costs.
Defendant appealed to the Law Division, which heard the matter on March 29, 2007. Judge Caposela filed a written opinion in which he concluded that the State had proven beyond a reasonable doubt that defendant had been driving while intoxicated. The judge agreed with the municipal court judge's finding that the police officers who testified at trial were credible. The judge found that the officers' testimony established that in the early morning hours of May 14, 2005, defendant had been operating his vehicle while under the influence of intoxicating liquor. Judge Caposela also found that the State had proven beyond a reasonable doubt that defendant refused to submit to the Breathalyzer test. The judge imposed the sentences noted previously.
On this appeal, defendant raises the following contentions:
AS THE STATE FAILED TO PRODUCE OFFICER [ZAPOLA], THE ARRESTING OFFICER AND OFFICER WHO CONDUCTED THE FIELD SOBRIETY TESTS UPON DEFENDANT, THE STATE FAILED TO SUSTAIN ITS BURDEN OF PROBABLE CAUSE TO CONDUCT THE BREATHALYZER.
THE SUPERIOR COURT ERRED IN FINDING THAT THE STATE PROVED ITS CASE BEYOND A REASONABLE DOUBT.
We have carefully reviewed the record in light of the arguments advanced on appeal and the applicable law. We are convinced that defendant's arguments are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm defendant's conviction and the sentences imposed substantially for the reasons stated by Judge Caposela in his thorough and comprehensive written opinion. We add the following brief comments.
Our role in reviewing a judgment of the Law Division in an appeal from a municipal court conviction is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). We must determine whether the judge's findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 161 (1964). We are required to defer to the trial judge's findings when they "are substantially influenced by" the judge's "opportunity to hear and see the witnesses and to have the 'feel' of the case." Ibid. "[T]he rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues." Locurto, supra, 157 N.J. at 474.
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