On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4732.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2009
Before Judges Payne and Waugh.
Defendant Guiseppe Cuozzo appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). We affirm.
We glean the following facts from the record.
On December 29, 2006, Cuozzo was working with a friend priming an apartment for painting. He testified that they started painting at 4 p.m. and finished painting at around 8 p.m. Cuozzo stated that while painting, they kept the windows of the apartment almost completely closed because it was cold outside. Because the primer being used was oil based and was sprayed onto the walls, Cuozzo testified that the whole apartment was covered with a haze and that the only breathing apparatus he used was the "collar of [his] shirt" which he used to cover his face part of the time.
After finishing the priming, Cuozzo went to his mother's house to have dinner. Cuozzo testified that he was at his mother's house for approximately two hours and that he did not have anything alcoholic to drink during that period.
At around 12:30 a.m. on December 30, 2006, Cuozzo went to a night club in Paterson. He admitted to drinking two light beers while at the club. He stated that he left the club at approximately 2:30 a.m., driving his 1994 Volkswagen Gulf which had tinted windows. Cuozzo testified that he drove approximately one block before he noticed a police car behind him. After sitting behind Cuozzo at a red light, the officer pulled Cuozzo over. Cuozzo stated that once he had pulled over and stopped, he removed his seatbelt so that he could get his identification out of his back pocket.
Paterson Police Officer Bamond testified that he was stopped behind Cuozzo's car at a traffic light when he observed "a large screen" in Cuozzo's car which he believed to be a television monitor. He also noted that the driver was not wearing a seatbelt. Bamond testified that he pulled Cuozzo over both because he was not wearing a seatbelt and also because of the suspected television monitor.
According to both Bamond and Cuozzo, after Bamond approached Cuozzo's car, they discussed the monitor and it was explained that it was a navigation device. Cuozzo testified that Bamond then asked where he was coming from and if he had anything to drink that evening. He said that he answered honestly, at which time he was asked to get out of his car. Bamond testified that he requested Cuozzo's driving credentials and while Cuozzo was complying with this request, Bamond noted "the slur in his voice, the [odor] of the alcoholic beverage that was coming from him, and his slow motions retrieving his paperwork" and concluded that Cuozzo had been drinking. Bamond stated that it was after he made these observations that he asked Cuozzo if he had been drinking.
Cuozzo exited his vehicle at Bamond's request to perform a field sobriety test. After the test was completed, Cuozzo objected that the sidewalk on which he was walking was uneven. Bamond conducted a second field sobriety test on a more even surface in an alleyway. According to Bamond, he "disregarded the [initial] tests."
Bamond testified that he asked Cuozzo to perform three tests: the heel-to-toe test; the sway test; and the one-leg stand test. During the heel-to-toe test, Cuozzo did "not place his heel to his toe," he did not "pivot," as he had been instructed by Bamond to do, and he took more steps then requested. Bamond then explained the sway test to Couzzo, stating: "with his arms at his side, and his head titled back, [he was] to close his eyes and count from one to thirty, using the 1001, 1002 method to thirty." Bamond testified that while performing this test, Cuozzo's "body made wide, circular spiral motions." During the one-leg stand test, Cuozzo was to stand with his arms at his side, hold one leg slightly above the ground, and count to thirty. Twice during this test he had to put his foot down. After the field sobriety test, Bamond "made the determination that the defendant had consumed more alcohol ...