Opinion
DOCKET NO. A-5103-10T3
04-30-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH MASTROMONACO, Defendant-Appellant.
Greggory M. Marootian, attorney for appellant. Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-086.
Greggory M. Marootian, attorney for appellant.
Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Joseph Mastromonaco, appeals from the May 17, 2011 Law Division order that adjudicated him guilty of N.J.S.A. 39:4-50.4(a), refusal to submit to chemical test; suspended his driver license; and imposed fines, penalties, court costs and a surcharge. Defendant contends his conviction should be reversed because the police officer who charged him did not first inform him of the consequences of refusing to provide a breath sample for an Alcotest. The arresting officer testified that he read to defendant the "standard statement" for providing breath samples, but the State did not move the statement into evidence and did not have the officer read its content. Nevertheless, there was sufficient evidence in the record to support the Law Division's conclusion the State had proved beyond a reasonable doubt the elements of the refusal charge. Accordingly, we affirm.
I.
The parties developed the following facts at a municipal court hearing on defendant's motion to dismiss the charges based on the absence of probable cause to arrest defendant. On March 20, 2010, at approximately 11:30 p.m., Manasquan police officer Greg Restivo was in the police department patrol room when he looked at a camera monitoring the exterior of the building and saw two vehicles, a Honda and a Mercedes, enter the parking lot. The men driving the cars exited and began to argue. One was defendant. A woman who had been a passenger in the Mercedes stood between the two men. Accompanied by another officer, Restivo walked to the parking lot. According to Restivo, defendant seemed perturbed and "had no awareness that he was even in a police department parking lot." Defendant told the officers, "we're fine." Restivo told defendant he was in a police department parking lot, that he and the other officer had been watching on a monitor, and it appeared that "somebody [was] having an argument." Defendant replied that there was no argument, they should leave, and "[w]e'll settle this." Defendant explained that he was having a problem with the man in the Honda dating the girl that was in defendant's car. Restivo testified he spoke to defendant face-to-face. Defendant's speech was slurred, he exhibited a dazed look, and a strong odor of alcohol emanated from his breath. When defendant was unable to successfully perform field sobriety tests, Restivo arrested him and escorted him into the patrol room.
Once in the patrol room, Restivo "read defendant the standard statement":
Q. And when you say you read him the standard statement, was that the consent for providing breath samples?
A. Yes.
Q. Did you read him all paragraphs?
A. Yes.
Q. At the conclusion of the paragraph did he give an indication as far as whether or not he would take the Alcotest?
A. His first response was, "what is the indication?" I read him the second part,
and the response was, "all I did was pull in the parking lot. And what test did I fail?"
Q. At that point in time what did you charge the defendant with?
A. Refusal.
Q. And?
A. [Driving while intoxicated (DWI)].
On cross-examination, after Restivo explained that after bringing a person into the patrol room "I observe them for [twenty] minutes, read them the standard statement," defense counsel inquired: "Was there anyone else present when you read the [eleven] paragraphs in the patrol room?" Restivo responded that he could not recall whether the other officer was present. The cross-examination continued:
Q. Now, you correct me if I'm wrong, but after you read him the [eleven] paragraphs, and then you read him the next thing, his response to you was, "all I did was pull into the parking lot." Is that correct?
A. Which form are you looking at?
Q. I'm looking at, I'm looking at the Standard Statement.
A. This is after I read him the second paragraph?
Q. Yes, sir.
A. Correct.
Q. So, he didn't say no, he just made a statement. All I did was pull into the
parking lot. Is that correct? That's what it says.
A. That's exactly what he said. Correct.
After the judge denied defendant's motion to dismiss the complaint based upon lack of probable cause, the parties agreed to incorporate Restivo's testimony at the probable cause hearing for purposes of the trial. The prosecutor then presented the remainder of Restivo's trial testimony. During direct examination, the prosecutor again questioned Restivo concerning the warnings he gave to defendant about giving a breath sample:
Q. Did you read the defendant the, what we call the standard form for giving breath samples? A. Yes. Q. What paragraphs did you read to him? A. I read him the entire page. Q. At the conclusion of the first section, what answer did you receive from the defendant with regard to . . . providing breath samples? A. I have it in — I usually put it in quotes. "What is the indication." Q. His answer was, "[w]hat is the indication?" A. "What is the indication?" I put the quote in there, yeah. Q. After you did not receive a specific yes or no, what did you then do? A. I read the second paragraph. Q. At the conclusion of reading the second paragraph — first of all, did you read the second paragraph word for word to the defendant? A. Yes. Q. Did he acknowledge any difficulty hearing or understanding it? A. No. Q. At the conclusion of the second paragraph did you ask him if he would provide a breath sample? A. His response was, "[a]ll I did was pull in the parking lot." Q. Following that, did you charge the defendant with refusal? A. Yes. He was advised that he was going to be charged with what he was charged with. Q. And the defendant was thereafter placed in a cell? A. Yes.Inexplicably, the prosecutor did not ask the judge to admit the standard statement into evidence, nor did the prosecutor have Restivo read the content of the standard statement.
Defendant presented two witnesses and testified on his own behalf. His expert, Gilbert Snowden, a former instructor for the New Jersey State Police, trained at least 1,000 federal, state, county and municipal police officers on how to perform standardized field sobriety tests. According to Snowden, officers are trained not to request "walk and turn" and "one-leg stand" tests if a suspect is over sixty-five years of age. Snowden explained that studies and research have demonstrated people over sixty-five years of age have difficulty performing the tests. Defendant was sixty-nine on the night of his arrest.
Greta Scott, defendant's girlfriend, testified that on the evening of the incident defendant drank no more than two glasses of wine with dinner. Scott also described the events that led to defendant and her ex-boyfriend driving into the parking lot of the Manasquan Police Department. She witnessed defendant attempting to perform two sobriety tests and the officers thereafter leading him away in handcuffs. In Scott's opinion, defendant was not under the influence of alcohol.
Defendant recounted the events leading up to the confrontation with his girlfriend's ex-boyfriend in the Manasquan Police Department parking lot. He admitted to Restivo that earlier in the evening he drank two and one-half glasses of wine. When Restivo asked him to perform field sobriety tests, defendant protested that he was an innocent bystander. Nonetheless, defendant tried to perform the heel-to-toe test and the one-leg balance test. He could not perform the tests because of physical impairments and problems.
Following the testimony, the judge and counsel viewed a DVD of the events that had occurred in the police department parking lot. Thereafter, the judge rendered his decision, finding defendant not guilty of DWI and reckless driving, but guilty of refusing to submit to a breath test. The judge's findings of fact included the following:
[Restivo] read [defendant] the refusal form prior to doing the Miranda inside while the defendant was on the bench with regards to this. He recalls the defendant's response and he wrote it down contemporaneously on the form, in quotations. He said that he normally does this. "What is the indication"[,] was the response in [p]aragraph [one]. He then specifically recalls reading the defendant [p]aragraph [n]umber [two] . . . . And the quote was, "All I did was pull into the parking lot." The defendant was then placed in the cell at that particular time.
. . . .
And again, I think I believe I said this, at the reading of the form on [p]aragraph [thirty-six], when called to respond, [defendant's] response in quotations was, "[w]hat is the indicat[ion]?" . . . and then the second paragraph when the officer felt that that was a unconditional or pardon me, a conditional response was, "[a]ll I did was pull into the parking lot." The defendant was then placed in the cell. [This part seems very repetitive.]
. . . .
The officer is absolutely sure that he read [p]aragraph [thirty-six] in response to [defense counsel's] cross-examination. And does admit to [defense counsel] that no time was placed on [p]aragraph [thirty-six] or Miranda at the time of completion. Under redirect there was none. The State rested at that point in time.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The judge suspended defendant's license for 210 days, fined him $300, imposed a $200 surcharge, and assessed $33 in court costs. The judge also required defendant to install an interlock device on the steering wheel of his car and maintain it for six months after reinstatement of his license.
Defendant appealed to the Law Division. During oral argument, defense counsel emphasized the evidence suggesting that Restivo never read anything other than Miranda warnings to defendant. Defense counsel further argued the State had not proved that Restivo informed defendant of the consequences of refusing to submit to a breath test: "The officer said that he read him paragraphs, although we don't know what he read him, that was never testified to, nor did the State move in that which the officer said he read him. They never moved into evidence the paragraphs dealing with the refusing to take a breathalyzer. According to defense counsel, because there was no proof of what Restivo read to defendant, the State did not prove its case beyond a reasonable doubt.
The State countered that Restivo credibly testified he read the standard statement to defendant, and no case law suggests that the standard statement must be moved into evidence. The State also suggested that the judge could judicially notice the content of the standard form.
The Law Division judge determined that Restivo had probable cause to arrest defendant and require defendant to take an Alcotest. The judge expressed reservations, however, about "the reason why . . . paragraph [thirty-six] was not submitted into evidence or at least was not recited by the officer. He simply could have read it." Due to his concern about that issue, the judge decided to adjourn the proceeding and "make a request [to] Manasquan Municipal Court to send me that document that is connected to this case, paragraph thirty-six[.]" The court also invited counsel to submit a letter brief on the issue.
When the trial de novo resumed, the Law Division judge informed the parties that upon reflection, he agreed with defense counsel that the Manasquan Police Department document that contained paragraph thirty-six of the standard statement is not "really properly part of this case." After reviewing those portions of the municipal court transcripts where Restivo referred to paragraph thirty-six of the standard statement, the judge noted the State's request that he take judicial notice of the content of paragraph thirty-six. The court continued:
Another argument that the State makes is that the [c]ourt should take judicial notice of [p]aragraph [thirty-six], that being the statement that is read when there is not a clear indication that an individual who is requested to take, in years past the Breathalyzer or now the Alcotest, does not give a clear indication of a yes or a no, [p]aragraph [thirty-six] is read and then that information is gone through to determine whether or not the defendant will take the test[.]
I don't know whether that helps the court or not in this case, I mean, I can take judicial notice of [p]aragraph [thirty-six], the issue is whether it's been read or not. [P]aragraph [thirty-six] has been the same, [defense counsel] could probably help [sic] me with that, but since probably the early [1990's] I don't thin[k] it's really changed much since then.
The judge did not take judicial notice of the content of the standard statement, because he defined the issue as "whether or not that paragraph was in fact read by Officer Restivo and the answers thereafter that [were] given." The judge concluded, as had the municipal court, that Restivo had read the paragraph to defendant. Based on his resolution of that issue, the judge found defendant guilty of refusal and imposed a sentence identical to that the municipal court judge had imposed. Defendant appealed.
II.
In this appeal, defendant argues:
POINT I. THE STATE FAILED TO PROVE THE CHARGE OF REFUSAL TO SUBMIT (N.J.S.A. 39:4-50.4a) BEYOND A REASONABLE DOUBT. THE RESULT BELOW WAS NOT REASONABLY REACHED WARRANTING THIS COURT'S INTERVENTION. THE RECORD IS DEVOID OF A SHOWING THAT DR. MASTROMONACO WAS ADVISED OF THE CONSEQUENCES OF REFUSAL, OR HIS IMPLIED CONSENT RIGHTS.
When a defendant appeals from a conviction of violating a traffic regulation following a trial de novo, the scope of our review is both narrow and deferential. State v. Stas, 212 N.J. 37, 48-49 (2012). Our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). When we conclude the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Ibid. We "defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. We owe no deference to either the Law Division or the municipal court, however, "with respect to legal determinations or conclusions reached on the basis of the facts." Stas, supra, 212 N.J. at 49. Our review of such legal determinations or conclusions is plenary. Ibid.
Defendant was convicted of violating N.J.S.A. 39:4-50.4a which provides in pertinent part:
Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of [N.J.S.A.] 39:4-50 or [L. 1992, c. 189, § 1] (C.39:4-50.14), shall refuse to submit to a test provided for in [L. 1966, c. 142, § 2] (C.39:4-50.2) when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation periodThe statute requires the State to prove beyond a reasonable doubt four essential elements:
shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years. A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to [L. 1966, c. 73] (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.
The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasipublic areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue.
(1) the arresting officer had probable cause to believe that defendant had been driving or was an actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.
[State v. Marquez, 202 N.J. 485, 503 (2010).]
N.J.S.A. 39:4-50.2(a) provides that drivers who operate motor vehicles on public roads, streets, highways, or quasi-public areas in the State "shall be deemed to have given . . . consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in [the operator's] blood." N.J.S.A. 39:4-50.2(e) provides, among other things: "The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with [N.J.S.A. 39:4-50.4a]. A standard statement, prepared by the chief administrator [now prepared by the Attorney General], shall be read by the police officer to the person under arrest."
In State v. Schmidt, the Supreme Court addressed the third element, that is, "what and how much must be read to a defendant in the way of a Standard Statement before a refusal conviction will lie." Supra, 206 N.J. 71, 82 (2011). The Court explained that the answer to the first part of that question, what must be read, "is provided in the refusal statute itself." Ibid. The refusal statute "explicitly provides that '[t]he police officer shall . . . inform the person arrested of the consequences of refusing to submit to such test . . . [and a] standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest.'" Ibid. (quoting N.J.S.A. 39:4-50.2(e)). The Court further explained that "the corollary question of how much must be disclosed seems self-evident: provided that the Standard Statement clearly delineates the penalties for a refusal, the statutory mandates are satisfied." Id. at 82-83; see also Marquez, supra, 202 N.J. at 509-510 (asking rhetorically, "[w]hat, then, is the practical impact of the requirement that police officers 'inform' motorists of the consequences of refusal[,] and answering, "reading the standard statement in English to motorists who speak English will suffice"). Significantly, the Supreme Court has also noted that "the substance of the Standard Statement has been delegated by the Legislature to the Executive Branch, pointedly not to the Judicial Branch." Schmidt, supra, 206 N.J. at 82.
"Effective August 24, 2009, and pursuant to Reorganization Plan No. 03-2009, the responsibility for the promulgation of standard statements regarding implied consent to chemical breath test statutes was transferred from the Chief Administrator of the Motor Vehicle Commission to the Attorney General. See 41 N.J.R. 2825(a) (Aug. 3, 2009). See also N.J.S.A. 39:4-50.2(a) (providing that Attorney General 'shall promulgate guidelines concerning the prosecution of driving while intoxicated and refusal violations)." Schmidt, supra, 206 N.J. at 73 n.1.
When analyzed under our standard of review and the Supreme Court's pronouncements concerning the third element of a refusal violation, the evidence in the case before us supports the Law Division judge's factual determinations and legal conclusions. Restivo testified that he read defendant all eleven paragraphs of the standard statement, "the consent for providing breath samples." When defendant did not unequivocally agree to give a sample, Restivo read to defendant the second part of the form. Moreover, during cross-examination, defense counsel explicitly stated that he was "looking at the Standard Statement" while questioning Restivo about defendant's responses. Defense counsel not only referred to the standard statement, but also referenced Restivo's written notation, on the standard statement, of defendant's response following Restivo's reading of the initial eleven statements and the supplemental paragraph.
Under those circumstances, the Law Division judge could have reasonably inferred from Restivo's testimony that he read the standard statement in English to defendant, who spoke English; and that the State thereby established the third element of the refusal violation. Marquez, supra, 202 N.J. at 509-510; cf., State v. Setzer, 268 N.J. Super. 553, 562 (1993) (holding that where a police officer testified that Miranda rights were given to the defendant and that defendant had signed a Miranda waiver, but the officer never verbalized in court precisely which Miranda rights were actually given and the State never entered into evidence the Miranda waiver card bearing defendant's signature that had been marked for identification, the officer's "testimony, if otherwise credible, [was] sufficient to establish a prima facie basis for concluding that the Miranda rights were in fact given and were voluntarily waived[,] . . . defendant was free to challenge that testimony through cross-examination and by offering contradictory testimony[,]" and "[t]he court was free to conclude that Miranda warnings were given and were voluntarily waived, thus rendering defendant's oral statement admissible at trial"), certif. denied, 135 N.J. 468 (1994).
We are not suggesting that a prosecutor establishes the third element of the refusal statute simply by eliciting a conclusory assertion from the arresting officer that the officer "read the standard statement" to a defendant. To the contrary, a municipal prosecutor should move the standard statement into evidence after it is properly authenticated, or at least lay the foundation required for judicial notice of the content of the standard statement read by a law enforcement officer to a suspect arrested for DWI. Here, however, the prosecutor elicited much more than a bare conclusory assertion; the standard statement was actually utilized by defendant to cross-examine the arresting officer; and defendant did not challenge the content of the standard statement, but rather disputed that any statement had been read to him.
The full text of the standard statement, "New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle, N.J.S.A. 39:4-50.2(e) (rev. & eff. April 26, 2004)," is located at http://www.nj.gov/oag/dcj/agguide/dmvrefnew.pdf.
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION