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State of New Jersey v. Roselio B. Utate

November 28, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROSELIO B. UTATE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 5-2011.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 7, 2012

Before Judges Lihotz and Kennedy.

Defendant Roselio B. Utate was tried in the South Brunswick Municipal Court and found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant was sentenced to two days in jail and thirty days of community service, assessed applicable fines, penalties, surcharges, and costs, and his driving privileges were suspended for two years, as this was defendant's second offense. Following a trial de novo, the Law Division likewise found defendant guilty. Defendant appeals from the DWI conviction, arguing:

POINT I

THE STATE'S FAILURE TO PROVIDE FULL DISCOVERY WAS PREJUDICIAL TO THE DEFENDANT AND PREVENTED HIM FROM RECEIVING A FAIR TRIAL.

POINT II

THE TESTIMONY OF THE STATE'S ONLY WITNESS WAS REPLETE WITH INCONSISTENCIES AND SHOULD NOT BE DEEMED CREDIBLE BY THE COURT.

POINT III

THE STATE'S EVIDENCE WAS PRIMA FACIE INSUFFICIENT TO PROVE A VIOLATION OF N.J.S.A. 39:4-50.

We agree the State failed to respond to defendant's discovery requests, which should have been more definitively addressed by the trial court. Nevertheless, any error is harmless and we affirm.

These facts were presented before the municipal court. On May 27, 2010, at approximately 4:30 p.m., State Trooper Adam Kaplan, while on routine patrol on the New Jersey Turnpike, observed a vehicle, with its brake lights lit, stopped on the shoulder of the southbound truck lanes, near milepost 76.

Trooper Kaplan stopped to render aid. Exiting his patrol car, he approached the vehicle. The key was in the ignition, the engine was running, and the radio was on. Defendant, the car's lone occupant, did not respond as the officer banged on the passenger window. The officer opened the passenger-side door and called to defendant in an elevated voice, believing he was "[m]ore or less passed out." After approximately ten seconds, defendant awoke.

In asking for defendant's driving credentials, Trooper Kaplan "detected the odor of an alcoholic beverage emanating from the interior of the vehicle." Further, he noticed defendant's eyes were bloodshot and red; his movements were slow as he fumbled through his wallet; his shirt was "mussed and unbuttoned"; he seemed confused; his speech was low and garbled; and his statements were fragmented and incoherent. Defendant told the officer he was coming from Union City and handed him a work identification card rather than his driver's license. When asked where he was headed, defendant stated he was going home to Union City, which was forty miles in the opposite direction. Defendant admitted he drank one beer.

Trooper Kaplan suspected defendant was intoxicated. He asked defendant whether he knew the English alphabet and defendant responded affirmatively. When asked to recite it, defendant said, "I'll follow you." Defendant also was asked if he knew the Spanish alphabet. He responded that he did, but when asked to recite it, he said, "Okay, I'll follow you."

Trooper Kaplan told defendant to "sit tight." As he headed toward his patrol car, he noticed defendant's driver-side door open. Trooper Kaplan "stopped what [he] was doing and approached [defendant] . . . and guided him around to the front of his car so that he wasn't by traffic." Defendant was "slouched over, his shoulders were rolled forward, his upper body tended to sag," and he "staggered" as he walked. Once standing at the front of the car, defendant swayed back and forth, keeping his feet widely spread to achieve balance and maintain an upright position.

The trooper next administered field sobriety tests: the "walk-and-turn" or "heel-toe" test and the "one-legged-stand" test.*fn1 Prior to commencing testing, Trooper Kaplan inspected the ground to be sure it was flat, even, and free of debris. He then instructed defendant on the tests' requirements and demonstrated proper performance. When asked, defendant stated he did not suffer from any injuries impeding his performance. However, during the psycho-motor testing, defendant "couldn't stand straight, . . . wobbl[ed] side to side," and could not perform because he "was too intoxicated to perform and understand . . . the instructions . . . given [to] him." Trooper Kaplan detected a strong odor of alcohol on defendant's person. Based on all of his observations, Trooper Kaplan concluded defendant was "heavily intoxicated" and placed him under arrest.

Defendant was placed in the patrol car and appeared to fall asleep. Upon arrival at the State Police Barracks, defendant could neither exit the vehicle nor walk into the squad room unassisted. ...


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