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State v. Wolfe

Superior Court of New Jersey, Appellate Division

June 28, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
THOMAS J. WOLFE, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 24, 2013.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0025-12.

Robert J. Pinizzotto argued the cause for appellant (Law Offices of Robert J. Pinizzotto, L.L.C., attorney; Mr. Pinizzotto and Nicole E. Wise, on the briefs).

James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Mr. Smith, of counsel and on the brief).

Before Judges Grall and Koblitz and Accurso. [1]

OPINION

KOBLITZ, J.A.D.

Defendant Thomas J. Wolfe appeals from the Law Division judgment of August 17, 2012 finding him guilty de novo, based only on defendant's blood alcohol content (BAC), of a per se violation of the prohibition against driving while intoxicated (DWI), N.J.S.A. 39:4-50.[2] He was sentenced to the minimum mandatory penalties for a second offender pursuant to N.J.S.A. 39:4-50(a)(2).[3] Defendant unsuccessfully sought to block admission of his Alcohol Influence Report (AIR), a report generated by an Alcotest breathalyzer device, because the State did not timely provide complete discovery. We affirm.

In the early morning hours of May 19, 2010, the police stopped defendant's truck for speeding in Hamilton Township shortly after he left the Cavallino Nero Bar and Restaurant's parking lot.[4] After the officer smelled alcohol and conducted field sobriety tests, he took defendant to the police station where a breathalyzer was administered. Defendant's two usable breath samples revealed a BAC of .12 percent, evidence of a per se violation. N.J.S.A. 39:4-50(a).

Within a week of the arrest, defense counsel requested complete discovery, warning in his letter that he would later move to preclude any additional materials not provided initially. The State provided partial discovery and referred counsel to a website[5] for additional discovery.

After an unsuccessful motion to suppress the arrest, which was decided more than fourteen months earlier, [6] this matter went to trial on April 3, 2012. Defendant moved immediately prior to the commencement of trial to preclude the State from producing any evidence not previously supplied to him in discovery. The municipal judge denied this motion. During trial, the municipal judge required defense counsel to specify his objection to the admissibility of the AIR. The State was then permitted to call as a foundational witness a police officer who did not effectuate the arrest and whose name was not previously supplied to the defense. Although not previously provided to defendant, the State was also allowed to introduce the Alcotest's certificate of analysis of the .10 simulator solution used in its control tests. The witness and document were necessary to supply a foundation for the admission of the AIR.

On appeal defendant raises the following issues:

POINT I: THIS COURT SHOULD STAY THE DEFENDANT'S SENTENCE, PENDING THE RESOLUTION OF THE ISSUES PRESENTED IN THE DEFENDANT'S APPEAL.[7]
POINT II: THE DEFENDANT WAS FOUND NOT GUILTY UNDER THE "OBSERVATION" PORTION OF THE STATE'S CASE BY THE LOWER COURTS IN ACCORDANCE WITH STATE V. SISTI[, 209 ...

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