October 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SALVATORE MACARO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-15-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 21, 2011
Before Judges Cuff and Lihotz.
Defendant Salvatore Macaro appealed his municipal court conviction for driving while intoxicated, N.J.S.A. 39:4-50, to the Law Division. The appeal focused on whether the municipal police officer followed the accepted protocol for administration of the Alcotest. Judge Stephen Holden found that the officer observed defendant for the required twenty-minute period before administration of the breath test and found defendant guilty of driving while intoxicated.
On appeal, defendant raises the following arguments:
THE COURT ERRED BY ADMITTING THE ALCOTEST READINGS OF DEFENDANT AS THE STATE FAILED TO ESTABLISH THAT THE DEFENDANT WAS OBSERVED FOR A TWENTY MINUTE INTERVAL BEFORE HE SUBMITTED TO THE ALCOTEST.
POINT II THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT IMPROPERLY LIMITED DEFENDANT'S RIGHT TO CROSS EXAMINE OFFICER SMITH BY RULING THAT STATE'S PROOFS ON ANOTHER PROSECUTION INVOLVING AN IDENTICAL ISSUE AND SAME OFFICER WERE NOT RELEVANT.
On May 4, 2009, defendant was arrested and charged with driving while intoxicated in violation of N.J.S.A. 39:4-50; careless driving in violation of N.J.S.A. 39:4-97; and driving an unregistered vehicle in violation of N.J.S.A. 39:3-4. At the police station, police administered the Alcotest and obtained a Blood Alcohol Content result of .10, a per se violation of N.J.S.A. 39:4-50. The sole contested issue is whether Officer Smith observed defendant for twenty minutes before administration of the Alcotest.
Smith testified that the arresting officer transported defendant to the police station. They arrived at approximately 9:14 p.m. Smith testified that his shift commenced at 9:00 p.m. that evening, and he did not leave the police station at the start of his shift because he had been informed of the arrest and expected defendant to arrive shortly. On his arrival, Smith observed the arresting officer place defendant in the holding cell. Sitting at the patrol desk, Smith heard the arresting officer read the standard breath test statement to defendant and defendant respond that he would take the test. At that time, Smith started the twenty-minute observation of defendant. From the patrol desk, Smith looked directly into the holding cell. Smith admitted he received a personal call during the twenty-minute observation period, but stated that he did not leave the patrol desk.
Defendant testified Smith was not at the station when he arrived, and Smith left the patrol desk when he received the personal phone call. Defendant also testified that the arresting officer did not leave the station, and he spoke with the arresting officer between ten and thirty minutes before administration of the Alcotest.
During the cross-examination of Smith, defense counsel sought to undermine Smith's credibility with reports from the February 2009 arrest of defendant for driving while intoxicated. In the earlier case, the arresting officer reported that he brought defendant to the police station and "turned over" defendant to Smith. In preparation for trial of the earlier charge, defense counsel obtained documents that disclosed Smith was not in the police station at the time; therefore, Smith could not have observed defendant or administered the breath test as related in the report of the arresting officer. As a result, the charges against defendant were dismissed. Over the objection of the municipal prosecutor, the municipal court judge permitted defense counsel to ask some questions about the prior case. Smith testified he had little knowledge of the February 2009 case. He noted that he was not the officer who prepared the forms that reported he was the officer who observed defendant for twenty minutes and administered the breath test. He learned about the prior case at a later date. Defendant did not move these documents into evidence.
A week after the municipal court judge rendered his opinion and imposed sentence, defendant sought to re-open the record to permit introduction of the documents identified at trial regarding defendant's May 2009 arrest. The municipal court judge granted the request, but affirmed the conviction.
Judge Holden found that the testimony of the arresting officer and Smith was "credible and it was quite clear. Officer Smith . . . did comply with the twenty minute observation period pursuant to Chun.*fn1 " Based on these findings, Judge Holden convicted defendant of driving while intoxicated.
Judge Holden was required to give deference to the credibility findings of a municipal court judge but also review the record and determine whether the record supports these findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). The trial record demonstrates that Judge Holden reviewed the municipal court record in its entirety and determined that the testimony offered by Smith was credible. The judge explained his decision to accept the credibility of Smith as follows:
[T]he testimony . . . was consistent between [the arresting officer] and Smith at least at the outset, the turn over of Mr. Macaro, placing in the holding cell, he was calling it a holding cell. And Officer Smith's very clear testimony on the record about where he sat, what he did, interestingly there was agreement about a phone call while he was there.
Our review of the findings of fact of a judge sitting without a jury is limited. State v. Johnson, 42 N.J. 146, 162 (1964). It is even more limited when "two lower courts have entered concurrent judgments on purely factual issues." Locurto, supra, 157 N.J. at 474. Here, we discern no basis to substitute the findings of two judges that Smith observed defendant for twenty minutes before administering the Alcotest.
Defendant's contention that his ability to cross-examine Smith at trial was improperly limited is without merit. The cross-examination of Smith permitted by the municipal court judge would have allowed the municipal court judge and the Law Division judge on de novo review to find that the report filed by the arresting officer in February 2009 contained false information. The report stated that Smith was the officer who observed defendant for the requisite twenty minutes before administration of the Alcotest and administered the test. The cross-examination conducted would also permit the finder-of-fact to find that the report filed by the arresting officer contained false information because Smith was on patrol during the time the report stated he was at the police station, and that Smith was not the author of the report and had no contemporaneous knowledge of the false information.
Defendant sought to impugn the credibility of Smith. The municipal court judge and the Law Division judge were free, however, to find that the February 2009 report prepared and submitted by an officer other than Smith had no relevance to their assessment of his credibility.