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State v. Pappalardo

Superior Court of New Jersey, Appellate Division

October 4, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
SALVATORE PAPPALARDO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 9, 2013

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 15-12.

Robbins and Robbins, L.L.P., attorneys for appellant (Mark S. Rothman, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Ostrer and Hayden.

PER CURIAM.

Defendant, Salvatore Pappalardo, appeals from his conviction de novo in the Law Division for refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.2. Defendant contends that his conviction should be reversed because the arresting officer read him an outdated version of the Division of Motor Vehicles Standard Statement for Operators of a Motor Vehicle (standard statement), required to be read before the administration of a chemical breath test. N.J.S.A. 39:4-50.2(e). This standard statement did not include the potential penalty of installation of an ignition interlock device if defendant refuses to provide breath samples.[1] See N.J.S.A. 39:4-50.4a(a). Thus, defendant contends he was denied due process. We disagree and affirm.

On September 8, 2011, a Township of Cranford police officer issued defendant a summons for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and a summons for refusal to submit to a chemical breath test (refusal), N.J.S.A. 39:4-50.2. On March 14, 2012, defendant pled guilty to the DWI charge in Cranford Municipal Court and moved for dismissal of the refusal charge or for the entry of directed verdict. The municipal judge denied both motions. Defendant then entered a conditional plea on the refusal charge, reserving the right to appeal the judge's denial of his motions.

The municipal court sentenced defendant to penalties, fines, costs, and license suspension as a first time offender on the DWI charge. On the refusal charge, the municipal court sentenced defendant to $300 in fines, $33 in court costs, $100 in a DWI surcharge, and a seven month license suspension. The judge did not require defendant to have an ignition interlock device installed on his vehicle.

Defendant appealed his municipal court conviction on the refusal charge. Following a de novo trial on June 11, 2012, the Law Division judge affirmed defendant's conviction and his sentence, which was stayed pending the outcome of the current appeal.

Defendant presents the following issue in this appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A DIRECTED VERDICT OF NOT GUILTY UNDER SUMMONS NUMBER CR 061107 ALLEGING A VIOLATION OF N.J.S.A. 39:4-50.2e WHERE THE STATE FAILED TO PROVE THAT THE DEFENDANT WAS ADEQUATELY ADVISED OF THE CONSEQUENCES OF FAILING TO SUBMIT TO A CHEMICAL BREATH TEST.

On an appeal such as this one, our role is to consider the action taken in the Law Division, not the action of the municipal court. State v. Adubato, 420 N.J.Super. 167, 175-76 (App. Div. 2011) (citing State v. Oliveri, 336 N.J.Super. 244, 251 (App. Div. 2001)), certif. denied, 209 N.J. 430 (2012). The Law Division, on the other hand, must give due regard to the magistrate judge's determinations on credibility findings in making its decision. Id. at 176 (citing State v. Johnson, 42 N.J. 146, 157 (1964)). We ordinarily are limited to determining whether the Law Division's findings were supported by sufficient credible evidence on the ...


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