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State v. Cupo

August 16, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GERARD CUPO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 05-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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