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State v. Delgado

Superior Court of New Jersey, Appellate Division

July 11, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JOSE DELGADO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 30, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 12-011.

David J. Foley argued the cause for appellant.

Caitlin J. Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Sidley, of counsel and on the brief).

Before Axelrad and Nugent, Judges.

PER CURIAM

Defendant Jose Delgado appeals his conviction following a trial de novo in the Law Division of driving while intoxicated, N.J.S.A. 39:4-50, and leaving the scene of an accident, N.J.S.A. 39:4-129. Having considered defendant's arguments in light of the record and controlling law, we affirm.

The State presented the following proofs at the municipal court trial. Defendant was staying with his girlfriend in her apartment in Union Beach on December 28, 2010. That night, at approximately 8:00, he backed his 1992 Dodge pickup truck with its extended trailer hitch into the front of a maroon Mitsubishi Eclipse, severely damaging its front end. The Eclipse was owned by defendant's neighbor, Jose Hernandez.

Although defendant disputed that he was intoxicated when he backed into Hernandez's car, the State presented five witnesses who testified to the contrary. The first was Hernandez's upstairs tenant, Shauna Hemingway, who went outside after hearing a "big loud noise." She saw defendant's pickup truck across the street in a pizzeria parking lot, its brake lights on, its engine running. Defendant got out of the truck, staggered across the street toward her, and started yelling at her when he saw her on the phone. She said she was on the phone with the police and he had just hit Hernandez's car. Defendant denied it and said, "[m]y brother did." Defendant then went into his girlfriend's house.

Hernandez went outside to look at his car after Hemingway's son telephoned him. The car was flattened in the front; there was a lot of damage. Hernandez watched as defendant staggered while crossing the street after parking his pickup truck. Hernandez heard defendant ask Hemingway why she was on the phone, heard defendant mumble something, and saw defendant go into his girlfriend's apartment. Hernandez thought defendant "wasn't all there, " heard defendant slur his words, and concluded that defendant had been drinking.

The first police officer to arrive at the scene, Patrolwoman Deborah A. Trembley, saw that Hernandez's car was "severely damaged, front end damage, hood." As the officer conducted her preliminary investigation, Carlos Rodriguez, the EMS Chief for Union Beach, who was also a detective with the Union County Prosecutor's office, arrived, followed by Patrolman Gabriel Farese. Detective Rodriguez, wearing his EMS uniform, and Patrolman Farese entered the building where defendant's girlfriend lived, opened the door to the stairway that led to the second floor, and ascended the stairway. When Rodriguez reached the top of the stairs the apartment door was slightly ajar. He knocked, announced himself, and defendant and a lady with brown hair opened the door all the way. Rodriguez asked if anyone was hurt, explaining that he was "here for an accident[.]" The lady told him she was not involved. Defendant approached him "with some slurred speech, a little bit of staggering." Detective Rodriguez asked defendant if he was a diabetic, had hit his head, or if there was anything wrong. When defendant responded no, Detective Rodriguez said, "why don't you come downstairs, the police want to speak to you." Defendant followed him downstairs. Once outside, defendant asked Hernandez in Spanish, "why did you have to call the police, we could have taken care of this ourselves."

Downstairs, in front of the building, Officer Trembley asked defendant for his registration. According to her, he was slurring his words and was incoherent, boisterous, and antagonistic. Defendant said he could not get his insurance card and registration because his keys were upstairs. The officer retrieved the keys from defendant's girlfriend and then returned to the street where she and defendant walked to his pickup truck. Defendant fumbled with the keys so badly that he could not open the door. After Officer Trembley opened the door, defendant was unable to produce his credentials. Instead, he obtained and showed the officer photographs of people.

Patrolwoman Trembley smelled a strong odor of alcohol on defendant's breath. His eyes were bloodshot and he was unable to walk normally. The police transported him to headquarters where Officer Trembley had him perform field sobriety tests, which he failed. Officer Trembley concluded from the totality of her observations of defendant that he was intoxicated.[1]

Patrolman Gabriel Farese, who also responded to the scene, corroborated Patrolwoman Trembley's testimony. When Patrolman Farese drove defendant to police headquarters, defendant denied that he had been driving. At headquarters, the officer read defendant his Miranda rights from a "Union Beach Police Department Driving Under Influence Interview Form, " and also read the thirty questions that appear on that form. Defendant responded that he understood his Miranda rights and was willing to speak to the police. In response to questions read from the form, defendant denied operating a motor vehicle and stated he was ...


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