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State v. Marzano

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TINA MARZANO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 59-2008.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 12, 2010

Before Judges Payne and Fasciale.

Defendant Tina Marzano appeals from her conviction in the Law Division, following the trial de novo of her municipal court convictions of driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; and two counts of DWI with a minor in the car, N.J.S.A. 39:4-50.5.

Judge Pullen imposed the following sentence for the DWI conviction: $1000 fine, 180 days in the county jail, ten year driver's license suspension, $50 VCCB, $100 DDEF, $75 Safe Neighborhood Services Fund, and a $100 surcharge. For the refusal to submit to a breathalyzer conviction, the judge imposed a $100 fine, 180 days in the county jail concurrent to the DWI conviction, ten years driver's license suspension consecutive to the DWI conviction, $100 DDEF and a requirement to attend IDRC. As to the two convictions of DWI with a minor in the car, Judge Pullen dismissed one count and sentenced defendant on the other to a $206 fine, a $50 VCCB, $75 Safe Neighborhood Services Fund and $33 court costs.

On appeal, we address whether Judge Pullen's findings of fact are supported by substantial credible evidence in the record, and whether that judge properly identified and applied the "community caretaker doctrine." Having concluded that the facts found by the judge are supported by substantial credible evidence in the record and she applied the correct legal principles, we affirm.

On February 13, 2008, defendant was parked in the middle of a closed bank parking lot at 3:00 a.m. Defendant was not parked or near the drive-through ATM. The lights on defendant's car were off, and the engine was on. There is no evidence that any other cars were in the lot.

The police were not sure if defendant was lost or needed help. As a result, a police car stopped about five or six feet from defendant's car, the police officer rolled down his passenger window and he asked defendant if she was lost or needed help.

In responding to the officer that she was a little lost, the officer noticed that defendant's speech was slurred, and he smelled alcohol. The officer got out to investigate further, noticed defendant's minor daughter in the car and observed the daughter's minor boyfriend emerging from an area at the side of the bank building.

Defendant moved slowly and with difficulty when producing her credentials. She admitted that she had a few drinks. The officer asked defendant to do several field sobriety tests, and in the officer's opinion, she failed. Defendant needed to hold onto the car in order to stand up readily. She recited the alphabet but she responded deliberately and slowly. She failed the finger dexterity test. Defendant did not perform other tests because she claimed she had brittle bones.

Defendant explained that she lived in another county, and they were looking for a place to eat. Defendant had driven from Monmouth County to Woodbridge. Based on the observations of the officer and the totality of the circumstances, the officer concluded defendant had been drinking and arrested her. She thereafter refused the breathalyzer.

Judge Pullen accepted the municipal court judge's credibility finding that the officer made a better witness than the defense witnesses. Judge Pullen found that defendant operated the car while under the influence and refused to take the breathalyzer test.

Defendant makes the following arguments on appeal: Point I ALL EVIDENCE PROFFERED BY THE STATE SHOULD BE SUPPRESSED, AS THE COMMUNITY CARETAKER EXCEPTION TO REASONABLE SUSPICION IS NOT APPLICABLE IN THIS MATTER.

Point II THERE EXISTED NO OBJECTIVE BASIS OF PROBABLE CAUSE TO ARREST THE DEFENDANT FOR "OPERATING" A MOTOR VEHICLE WHILE INTOXICATED.

Point III TRIAL COUNSEL FAILED TO INTRODUCE PERTINENT RELEVANT AND POTENTIALLY EXCULPATORY EVIDENCE ON BEHALF OF THE APPELLANT AND APPELLANT WAS INEFFECTIVELY ASSISTED AS A CONSEQUENCE.

Point IV THE STATE FAILED TO PROVE BEYOND A RESONABLE DOUBT THAT THE APPELLANT WAS INTOXICATED BASED SOLELY UPON OFFICER OBSERVATIONS.

The Law Division judge made it clear that she relied on her own independent findings of fact in reaching her determination of guilt after reviewing the evidence in the Municipal Court record. State v. States, 44 N.J. 285, 293 (1965); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000).

Under de novo review, a Law Division judge must make independent findings of fact to support the guilt or innocence of a defendant. See Cerefice, supra, 335 N.J. Super. at 383 ("[T]he judge in a trial de novo must make his or her own independent findings of fact since his or her function 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) ("A trial de novo by definition requires the trier to make his own findings of fact."), certif. denied, 95 N.J. 197 (1983). Here Judge Pullen made independent findings of fact.

The State can prove DWI through a breathalyzer test, or via observations of the police officer that show that defendant was "under the influence." See State v. Ravotto, 169 N.J. 227, 242 (2001) (Proof of blood alcohol levels to convict drunk drivers is not required). The focus is on the defendant's ability to operate a motor vehicle. "The obvious intention of the Legislature was to prescribe a general condition, short of intoxication, as a result of which every motor vehicle operator has to be said to be so affected in judgment or control as to make it improper for him to drive on the highways." Johnson, supra, 42 N.J. at 165. Further,

"[t]he expression 'under the influence of intoxicating liquor' covers not only all the well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess." [Ibid. (quoting State v. Rogers, 91 N.J.L. 212, 215 (E. & A. 1917)).]

The Johnson Court then stated, "'It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.'" Ibid. (quoting State v. Emery, 27 N.J. 348, 355 (1958); accord State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002)).

Physical manifestations of intoxication have been held to include: slurred speech, the smell of alcohol on defendant's breath, fumbling for credentials, staggering or swaying while standing or walking, and belligerent behavior. See, Ravotto, supra, 169 N.J. at 242, 256; Johnson, supra, 42 N.J. at 153; State v. Hammond, 118 N.J. 306, 308 (1990).

In determining whether a driver is under the influence of alcohol, field sobriety tests and breath tests are not always required. Even without such tests, "observational evidence" can be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI." State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd, 293 N.J. Super. 535 (App. Div. 1996).

Proving operation of a car may be done by direct or circumstantial evidence so long as it is competent and meets the standards of proof. State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). "The vehicle's operating condition combined with defendant's presence behind the steering wheel permits the logical conclusion of intent to drive." Ibid.

A police officer is authorized to make a warrantless arrest whenever the officer has probable cause to believe that a person has operated a motor vehicle while intoxicated. N.J.S.A. 39:5-25. A custodial arrest is permissible only if a further investigation of the driver reveals further evidence, such as a failed sobriety test, slurred speech or unsteadiness. George, supra, 257 N.J. Super. at 496.

Judge Pullen found that defendant operated the car while under the influence and refused to take the breathalyzer test. These findings are supported by substantial credible evidence in the record. Her finding that there were two minors in the car is also supported by substantial credible evidence in the record.

Defendant argues on appeal that the community caretaker doctrine does not apply. In discussing the community caretaker doctrine the Court said:

That doctrine applies when the "police are engaged in functions [which are] totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of [criminal] statute." "Neither a field inquiry nor community caretaker function requires that the police demonstrate probable cause or an articulable suspicion to believe that evidence of a crime will be found." When courts review those forms of citizen-police encounters they "employ a standard of reasonableness to determine the lawfulness of police conduct."

More specifically, the community caretaker doctrine recognizes that the police often are called on to perform dual roles. One commentator has noted:

Law enforcement officers generally act pursuant to either law enforcement or community caretaking objectives. The difference between the two stems from the law officers' underlying motives. The Law enforcement function includes conduct that is designed to detect or solve a specific crime, such as making arrests, interrogating suspects, and searching for evidence. Community caretaking, on the other hand, is based on a service notion that police serve to ensure the safety and welfare of the citizenry at large. [John F. Decker, Emergency Circumstances, Police Responses and Fourth Amendment Restrictions, 89 J. Crim. L. & Criminology 433, 445 (1999).] [State v. Diloreto, 180 N.J. 264, 275-76, (2003) (internal citations omitted).]

Under the community caretaker doctrine, the officer reasonably and properly approached defendant's car to see if she was lost or needed help. It was 3:00 a.m., the car engine was running, but the lights were off. Therefore, Judge Pullen correctly applied the "community caretaker doctrine."

On appeal to the Law Division, defendant was given a similar sentence to that imposed by the municipal court judge. Defendant does not challenge the nature of her sentence in this appeal.

Regarding the claim of ineffective assistance of counsel, that argument is best presented in a post-conviction relief proceeding. State v. Preciose, 129 N.J. 451, 459-60 (1992).

Affirmed.

20100603

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