On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 06-03-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 26, 2011 - Decided Before Judges Fuentes, Ashrafi and Nugent.
Defendant George Korpita appeals his convictions for a second driving while intoxicated (DWI) offense, N.J.S.A. 39:4-50, refusal to submit to a chemical test (Refusal), N.J.S.A. 39:4-50.4(a), and failure to keep right N.J.S.A. 39:4-82. The Law Division sentenced defendant after a de novo trial to a two-year license revocation, forty-eight hours at an Intoxicated Driver Resource Center (IDRC) program, and thirty days community service for the DWI; and a consecutive two-year license revocation for Refusal. The judge merged the failure to keep right with the DWI and imposed appropriate fines and penalties. Defendant presents the following arguments:
THERE IS INSUFFICIENT, CREDIBLE EVIDENCE TO JUSTIFY THE FINDINGS OF THE TRIAL COURT AND SUPERIOR COURT, AND THE DOCTRINE OF "WRONGNESS" REQUIRES THIS COURT TO REVIEW THE RECORD AND GRANT THE MOTION TO SUPPRESS AND/OR FIND THE DEFENDANT NOT GUILTY OF THE CHARGES.
POINT TWO BOTH LOWER COURTS ABUSED THEIR DISCRETION BY NOT ADMITTING INTO EVIDENCE THE VARIOUS PHOTOGRAPHS AND TOWNSHIP MAP INTRODUCED BY DEFENDANT AT TRIAL, AND SUCH ABUSE RESULTED IN A DENIAL OF JUSTICE Based on our review of the record and applicable law in light of the contentions advanced by defendant, we affirm.
The following facts were developed at the municipal court suppression hearing and trial. Sparta Township Police Officer Joseph Pensado*fn1 testified that on February 15, 2008, at approximately 10:17 p.m., he received a 9-1-1 dispatch that the manager of Zoe's restaurant reported intoxicated patrons were leaving Zoe's in a Maserati and another car. The manager described the Maserati and provided its license plate number. In response, Pensado drove toward the restaurant, parked at a nearby intersection, and waited a few minutes until he saw the Maserati turn onto Green Road. Pensado closed the distance between his patrol vehicle and the Maserati to approximately two car lengths, then followed it for approximately twenty-two minutes on Green Road and Route 181. Defendant does not dispute that he was the Maserati's driver.
While following defendant on Green Road, Pensado saw the Maserati cross into the left-hand side of the road three times. The first time, defendant returned and stopped on the right side of the road, where Pensado stopped about two car lengths behind him and waited for about fifteen seconds until defendant again began to drive on Green Road. As Pensado followed, he saw defendant's Maserati cross into the oncoming lane a second and third time, each time causing westbound cars to move to the far right to avoid defendant's car.
Defendant turned from Green Road onto Route 181 then abruptly turned into a saloon parking lot. Pensado thought it was unsafe to turn into the parking lot, so he passed the saloon and looked for a safe place to turn around. When defendant drove out of the lot, Pensado followed and stopped him in the parking lot of a restaurant in Jefferson. Pensado explained that it would have been unsafe to stop defendant on Green Road because it is an "unmarked, narrow, windy, hilly roadway."
During cross-examination, defense counsel marked as exhibits a Sparta Road Map, a map of Jefferson, and photographs of different locations that Pensado had identified. Pensado testified about the exhibits and placed marks on them in response to defense questioning, but the municipal court judge refused to admit them into evidence because they had not been provided to the prosecutor.
Defendant called two witnesses at the suppression hearing. Kimberly Breazzano disputed Pensado's testimony. She testified that she and defendant were among a group of six that dined at Zoe's before she left with defendant in his Maserati. She denied that defendant drove erratically or crossed into the oncoming lane while on Green Road. However, while defendant was driving on Green Road, a car with bright headlights began tailgating defendant's car. Breazzano asked defendant to pull over, which he did, but the other car stopped behind them. Defendant waited for a few minutes then resumed driving on Green Road and the tailgating car followed him. After defendant turned from Green Road onto Route 181, Breazzano asked him to pull over because the car was still tailgating, and defendant pulled into a restaurant parking lot. The tailgating car continued on Route 181 and she noticed that it was a police car. Defendant pulled out of the lot and was subsequently stopped by Pensado.
Defense witness Scott DeVito testified he dined at Zoe's with the group that included defendant, but left with another driver. The Sparta police stopped the other driver, but released him. DeVito testified defendant ordered two martinis at ...