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State of New Jersey v. Salome M. Wangwe

August 28, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SALOME M. WANGWE, DEFENDANT-APPELLANT.



On appeal from Superior Count of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 41-2010.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 6, 2012

Before Judges Payne and Hayden.

Defendant Salome M. Wangwe appeals from the December 6, 2010 Law Division order affirming the March 30, 2010 municipal court order finding her guilty of driving while intoxicated (DWI) and refusal to submit breath samples. Having considered the record and the applicable legal principles, we affirm.

The record reveals that on October 26, 2008, defendant was arrested in East Brunswick and charged with DWI, N.J.S.A. 39:4-50, reckless driving, N.J.S.A. 39:4-96, and refusal to submit breath samples, N.J.S.A. 39:4-50.2. At the municipal court trial, the State's witnesses provided the following testimony. Police Officer James Angermeier testified that he was on patrol on Route 18 when he pulled an SUV over into a restaurant's parking lot. Immediately thereafter, a second car, a Honda, pulled into the adjoining parking lot, about fifteen yards from the officer. The police officer saw defendant exit the Honda from the driver's side and walk toward him. The officer pointed his flashlight at her and told her to stop. The driver of the SUV explained to the officer that defendant owned the SUV.

Police Officer Thomas Cassidy, Angermeier's backup, testified that he arrived on the scene shortly after Angermeier called for assistance, because he was nearby. He did not see defendant get out of the Honda but saw her standing by its open driver's door. When Cassidy approached defendant, he smelled alcohol on her breath and noticed she was slurring her words and swaying, and her eyes were red and watery. Defendant admitted that she had been drinking at a club that evening but denied that she had been driving a vehicle. Shortly thereafter, Tony Ochido, who was sitting in the passenger seat of the Honda, told Cassidy that defendant had been driving that vehicle.

Cassidy asked defendant to perform some field sobriety tests. Initially, she refused because she maintained that she had not been driving. However, she then agreed to attempt a "walk and turn" test, which she was unable to perform. As a result, she refused to cooperate further. Based on these observations, Cassidy arrested defendant for DWI. At police headquarters, Cassidy read defendant the standard statement regarding the requirement to submit breath samples and the consequences of refusal. See N.J.S.A. 39:4-50.2(c). Defendant stated that she would not participate in the tests and signed the standard statement form with the words, "I will not."

At trial, defendant's witnesses provided the following testimony. Defendant's friend, Lilian Raini, testified that she and defendant had been drinking heavily that night with friends. When the group decided to head to another club, Raini saw defendant get into the passenger side of the Honda, and Raini got into the first car. Ochido testified that, contrary to what he had told the police at the scene, he drove the second car but he had gotten into the passenger side seat after defendant exited the vehicle to speak to the police. He switched his seat and falsely claimed defendant was driving the second vehicle in order to avoid another DWI charge as he already had one pending against him.

On March 30, 2010, the municipal court judge, after determining that the police officers were credible and defendant's witnesses were not, found that defendant was guilty of DWI and refusal to submit breath samples, and dismissed the reckless driving charge. The judge sentenced defendant as a first offender to a ninety-day suspension of her New Jersey driving privileges and other requisite fines and penalties. Defendant filed an appeal in the Law Division.

On November 19, 2010, Judge Joseph A. Paone conducted a trial de novo on the record, which consisted of arguments of counsel. In rendering his oral decision, the judge carefully reviewed the record below and rejected defendant's arguments seeking to undermine the municipal court judge's credibility determination. Judge Paone found defendant guilty of the same offenses and imposed the same penalties as in the municipal court. The judge stayed the entire sentence pending appeal.

On appeal, defendant raises the following contentions for our consideration.

POINT I: DEFENDANT WAS DENIED HER RIGHT TO A COMPLETE DE NOVO REVIEW IN HER ...


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