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State of New Jersey v. Leonard J. Sterba

May 2, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEONARD J. STERBA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-004.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 2011

Before Judges Payne and Koblitz.

Defendant, Leonard Sterba, appeals pro se from his convictions for driving while intoxicated, N.J.S.A. 39:4-50, and refusal to take a breath test, N.J.S.A. 39:4-50.2. On appeal, he makes the following arguments:

POINT I

STATE ERRED TO ADMIT V.A. RECORDS INTO EVIDENCE

POINT II

STATE ERRED IN FAILING TO PRODUCE CELL PHONE RECORDS. THE APPELLANT NEEDS THOSE RECORDS IN HIS DEFENSE

POINT III

STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT AS TO DRIVING WHILE INTOXICATED 39:4-50

POINT IV

STATE FAILED TO MEET ITS BURDEN OF PROOF AS TO ELEMENTS OF REFUSAL TO TAKE THE ALCOTEST

We affirm.

I.

The record provides substantial support for the conclusions of the municipal and Law Division judges that, at the time of his arrest shortly after midnight on November 29, 2008, defendant was intoxicated. At trial, testimony was offered by the arresting officer, Brian McGaughran, that, while on patrol on Route 10 in Randolph Township, he observed defendant, while driving, repeatedly swerving out of his lane of travel. McGaughran activated his lights, and defendant stopped. As McGaughran approached defendant's vehicle, he heard loud music coming from it. Defendant greeted McGaughran with a blank stare and continued to eat a McDonald's hamburger. When asked for his credentials, defendant responded by asking McGaughran whether he knew Dean Kazaba, Randolph's prior Chief of Police. Defendant then announced that he was a special police officer in Randolph - a fact that was not true. Instead of producing the requested documents, defendant proceeded to enumerate other retired police officers and to ask McGaughran whether they were known to him. Believing defendant to be intoxicated and uncooperative, McGaughran called for back-up. Overhearing the call, defendant denied that he was giving the officer a hard time.

Patrolmen Biase and Caufield responded to McGaughran's call. Perceiving a need to control the situation, McGaughran directed defendant to exit his vehicle. In response to McGaughran's questions, defendant admitted to having consumed alcohol, stating, "of course I had a couple of drinks." After the results of a horizontal gaze nystagmus test suggested that defendant had consumed more, he admitted to having consumed four or five drinks. When asked to perform field sobriety tests, defendant claimed that he had problems with his eyes and a torn meniscus in his left leg. Defendant's physical conditions were noted, and he was directed to perform a walk-and-turn test, which he failed, and a one-leg stand test, which defendant elected to attempt by standing on his allegedly injured left leg. He failed that test as well. A heel-to-toe test was likewise failed. During the course of testing, defendant swayed and staggered, keeping his feet wide apart for balance. In his report of the incident, McGaughran wrote that defendant's speech was "shouting, rambling, incoherent, boisterous, and slurred." His actions were described as "resisting and profanity, thumbing nose, threatening." His eyes were described as bloodshot and watery, and his face was described as flushed. Defendant's breath smelled of alcohol.

As the result of the police's observations, defendant was arrested for driving while intoxicated and placed in McGaughran's patrol car. Throughout the stop and after his arrest, defendant screamed at the police officers; he threatened suit against them if the police did not tow his car to his residence; and he threatened suit against Randolph Township if the car were impounded. ...


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