August 16, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GERARD CUPO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 05-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 27, 2010
Before Judges Grall and LeWinn.
Defendant appeals from the May 12, 2009 judgment of the Law Division finding him guilty, following de novo review, of driving while intoxicated (DWI) within 1000 feet of a school zone, in violation of N.J.S.A. 39:4-50(g), and sentencing him to pay various fines and assessments, suspension of his driver's license for twelve months and twelve hours in the Intoxicated Driver Resource Center. We affirm.
We summarize the evidence pertinent to our decision. On October 15, 2008 at approximately 2:35 a.m., Atlantic City Police Officer Michael LoSasso in uniform and driving a marked police vehicle, was behind defendant's vehicle and observed it "swerve over partially into the curb lane," and then "back into the passing lane twice" within the distance of a block-anda-half. The officer testified that the area in which this occurred was within the "1,000 feet confines" of Our Lady Star of the Sea School.
LoSasso signaled defendant to pull over; the officer approached and asked for his license, which defendant produced. As defendant spoke, LoSasso "detected an odor of alcoholic beverage on his breath. His eyes were bloodshot and watery. And his face was flushed." At that point, the officer "asked [defendant] to step out of the vehicle and step over to the sidewalk and [he] was going to demonstrate some balance tests for [defendant] to attempt."
Because defendant had pulled his car into the driveway of a house, he "had to walk some distance back to the sidewalk, [which] was better lit . . . and . . . was a lot more room"; defendant "was staggering and swaying as he was walking."
The officer administered a series of field sobriety tests to defendant. Because defendant stated that his "back hurt," the officer did not administer the first test he usually gives which requires bending over at the waist.
The officer went "through a series of demonstrations" of the other tests; he asked defendant if he understood after each demonstration, and defendant stated that he did. In demonstrating the finger-to-nose test, the officer told defendant to keep his eyes closed while performing it; defendant attempted the test more times than the officer had instructed him to and "during this testing he kept opening his eyes." During the "heel-to-toe" test, defendant "took 3 steps not heel to toe and he was staggering a little bit. Then he took 4 more steps not heel to toe and just stopped." Defendant did not "try walking backwards the 6 steps" as he had been instructed to do. While defendant was performing the test of "counting backwards from number 76 to 67[,]" the officer heard him "rambling on somewhat about this spa that he had just left at the Borgata." Defendant's speech was slurred.
LoSasso concluded that "defendant's mental abilities were deleteriously affected by . . . alcohol[.]" Based on his observations and defendant's performance of the field sobriety tests, LoSasso advised defendant that he was under arrest for DWI, read him his Miranda*fn1 rights, placed him in custody and transported him to police headquarters. There, defendant submitted to a Breathalyzer test that rendered a blood alcohol content (BAC) reading of .07.
Defendant received four summonses: DWI, N.J.S.A. 39:4-50; DWI within 1000 feet of a school zone, N.J.S.A. 39:4-50(g), failure to maintain lane, N.J.S.A. 39:4-88; and reckless driving, N.J.S.A. 39:4-96.
At the conclusion of LoSasso's testimony, the State rested. The judge inquired of defense counsel, "I assume the defendant's testifying?" Counsel responded, "[y]es, [j]udge."
Defendant testified that on the date in question, he had gone to the Borgata Hotel in Atlantic City a little before 1:00 p.m. He "[j]ust hung out at the spa[,] [s]auna, steam room and they have a lounge where you could watch T.V." Defendant went into the sauna "15 minute on, 15 minutes off[,]" until about 7:00 p.m., with a break from 3:00 p.m. to about 4:30 p.m. He did not eat anything, just drank water.
At approximately 7:30 p.m., defendant went to the buffet at the Borgata and had "seafood, salads and low calorie things." He also had two glasses of wine, each about six ounces, with his meal. He stayed at the buffet until about 10:00 p.m.
Defendant testified that he had a cold on that day and furthermore, as a result of having been at the spa, his face was flushed and his eyes were bloodshot; also his "coordination, . . . equilibrium" was "affect[ed] . . . because of the relaxation of the muscles." Defendant acknowledged that he did not tell LoSasso that he had a cold.
After eating, defendant stated that he gambled at the casino until 1:30 a.m. Because the Borgata could not give him a room, he left and drove towards a Days Inn where he had stayed the previous night. It was during that trip that he was pulled over by LoSasso.
Because he was on a major thoroughfare, Pacific Avenue, defendant pulled into a driveway when he realized that a police car was behind him. Defendant told LoSasso that he was "very fatigued . . . [f]rom fasting and th[e] stay in the steam and sauna all day."
Defendant testified that he did not perform well on the field sobriety tests that involved walking because the "sidewalk was not level." With respect to the counting backwards test, defendant said the officer "summarized it[,]" but did not explain it "word for word." He stated further that he did not "understand the instructions" LoSasso gave him because it was "2 o'clock in the morning[,] . . . [and he] was extremely fatigued."
Defendant denied that he "sway[ed]" or "stagger[ed]" during the tests. He insisted that while he was driving, he "stayed in the curb lane," and "never went in the passing lane[,] . . . [or] over the two solid lines . . . ." Nor did his vehicle "swerve."
The municipal judge reviewed the evidence, and found that Officer LoSasso's "testimony demands more . . . consideration . . . [than defendant's], and . . . accept[ed] [the officer's] testimony as a fact of what occurred that night . . . ." Regarding defendant's .07 BAC reading, the judge acknowledged that it was not "per se"*fn2 proof of intoxication; however, the judge noted that there are "two prongs to a DWI[,] . . . whether [defendant] was under the influence based upon observations, et cetera, and his characteristics and how he behaved at that time, and also a per se. Per se is not on the table. We just have under the influence . . . ." The judge concluded:
[L]ooking at the totality of the situation I'm satisfied, I'm firmly convinced beyond a reasonable doubt that this man was affected by alcohol to the extent that his mental and physical capabilities were affected and . . . it was unsafe for him to be operating a motor vehicle at that time. And I'm going to find him guilty of that charge. Let's talk about the other matters we have here.
As to the failure to maintain a lane I'm satisfied based upon the officer's testimony that he did in fact fail to maintain a lane. I'm going to find him guilty of that. . . .
I'm going to do the same with reckless . . . [b]ecause I believe having alcohol in your system makes a reckless situation. He was driving all over the road. Maybe that in [and] of itself is not reckless but I think the component of alcohol would make it reckless.
I'm satisfied based upon [exhibits moved into evidence] that it was within a school zone. . . . Our Lady Star of the Sea is right across the street and it's one block down. Clearly within 1,000 feet.
The judge also found defendant guilty of DWI and merged it with the school zone offense. The judge then merged all four offenses for sentencing purposes.
On January 15, 2009, defendant filed a notice of appeal to the Law Division with respect to all four charges. A hearing was held on April 28, 2009, after which the Law Division judge rendered a decision from the bench finding defendant guilty of DWI and the school zone offense. Neither counsel nor the judge addressed the other two motor vehicle offenses. On May 12, 2009, the Law Division judge entered judgment based on his decision, finding defendant guilty of violating N.J.S.A. 39:4-50(g), and imposing the same sentence as the municipal judge.
On appeal, defendant raises the following issues for our consideration:
I. Low Breath Test -- Insufficient Observations:
This Court Should Not Reduce the Burden of Proof Beyond a Reasonable Doubt to "Lip Service" as the Officer and Courts Below Did; Instead, this Court Should View the Low Breath Test Result and Ambiguous Observations Insufficient to Convict Defendant as a Matter of Law
II. School Zone:
There Is No Rational Relationship Behind the Adoption of a Model to Deter Illegal Drug Commerce and Transitory Motor Vehicle Operation; Thus, Applying a 24-Hour School Zone to Driving Is Unconstitutional [Not Raised Below]
A. The Legislature's Application of School Zones in Protecting Children from Drug Dealing Is Clearly Distinguishable from the Application of School Zones to Drunk Driving
B. Applying "School Zone" Drug Offense Classifications to Persons Charged with DWI Is Not Rationally Related to the Evil Sought to Be Punished, and the Additional Driving Privilege Revocation Arising Therefrom is Arbitrary in that It Goes Beyond What Is Reasonably Expedient in Achieving the Stated Public Purpose
C. The Absence of (a) Identifiable Standards Guiding Officers in Making Traffic Stops Within or Without School Zones, and (b) Any Notice Reasonably Calculated to Give Defendants Notice of the School Zone, Renders N.J.S.[A.] 39:4-50(g) Unconstitutionally Vague and Arbitrary
III. No Advice About Testifying:
Without Advice About His Right to Remain Silent or the Perils of Cross Examination in Giving Testimony, Defendant's Decision to Do So Was Not Knowing, Voluntary or Intelligent, and He Should, Therefore, Receive a New Trial Where These Options Are Clearly Delineated for Him [Not Raised below]
IV. No Reckless Driving:
Driving with a .07 BAC Down a Deserted Avenue and Stopping in a Safe Location when Signaled to Do So Is Not Reckless Driving, and This Court Should Acquit Defendant of That Charge
V. No Failure to Maintain Lane:
The Minor Deviations Described Coupled with the Circumstances Observed Are Insufficient to Support a Conviction under N.J.S.[A.] 39:4-88 We note that the arguments raised in Point II of defendant's brief call into question the constitutionality of N.J.S.A. 39:4-50(g). Defendant has failed to give notice to the Attorney General of these constitutional challenges. R. 2:5-1(h). The Attorney General must be "given the opportunity to participate" when the constitutionality of a statute is challenged. Warren County Cmty. Coll. v. Warren County Bd. of Freeholders, 350 N.J. Super. 489, 499 n.7 (App. Div. 2002), aff'd as modified, 176 N.J. 432 (2003). Therefore, we decline to consider these arguments.
Initially, we take note of the limited scope of the appeal before us. "[I]t is well-settled that appeals are taken from orders and judgments and not from opinions, oral decisions, . . . or reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); R. 2:2-3(a). See also Heffner v. Jacobson, 100 N.J. 550, 553 (1985) ("An appeal lies not from a written or oral decision of a court, but only from a judgment or order").
The judgment of May 12, 2009, finds defendant guilty only of N.J.S.A. 39:4-50(g). The DWI, reckless driving and failure to maintain lane charges are not mentioned in this judgment. The Law Division judgment has been "transmitted to" the municipal court, pursuant to Rule 3:23-8(e); therefore, only the school zone conviction is in issue before us and we do not address defendant's other claims.
The State contends that defendant's arguments respecting the reckless driving and failure to maintain lane convictions are "improperly raised on appeal." The State acknowledges that defendant included these two convictions in his notice of appeal, but posits that because "defendant did not challenge the sufficiency of the State's proofs in his brief or at oral argument [before the Law Division,] . . . defendant abandoned his opportunity to seek appellate review of these two convictions, and . . . cannot remedy this shortcoming at this stage in the proceedings." The State's position is flawed, however. The only extant judgment of conviction is for the school zone offense.
We briefly address defendant's remaining two arguments, which we find to be without sufficient merit to warrant extended discussion in this opinion. R. 2:11-3(e)(2).
The evidence was sufficient to find defendant guilty beyond a reasonable doubt of DWI within 1000 feet of a school zone. Insofar as defendant contends that his BAC reading of .07 was insufficient to sustain a DWI conviction, it has long been held that the State's burden of proof of DWI can be met exclusively upon the observations of the arresting officer that defendant was operating a motor vehicle while intoxicated. State v. Johnson, 42 N.J. 146, 165-66 (1964).
Two tribunals "have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999). We find no such showing of error here.
Finally, defendant's contention regarding the municipal judge's failure to question him about his decision to testify is wholly without merit. "[W]hen a defendant is represented by counsel, the trial court is not required to inform defendant of his right to testify or explain the consequences of that choice." State v. Savage, 120 N.J. 594, 630 (1990). "'[I]t is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages or disadvantages o[f] doing so or not doing so.'" Ibid. (quoting State v. Bogus, 223 N.J. Super. 409, 426 (App. Div.), certif. denied, 111 N.J. 567 (1988)). Here the record reflects that defendant's attorney apparently discussed the issue with defendant, as evidenced by counsel's response to the judge's inquiry.