STATE OF NEW JERSEY VS. MICHAEL ESPOSITO (2015-022, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5740-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL ESPOSITO,

Defendant-Appellant.
_______________________________

Submitted February 8, 2017 – Decided September 18, 2017

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Municipal
Appeal No. 2015-022.

Anthony H. Guerino, attorney for appellant.

Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Stephen
A. Pogany, Special Deputy Attorney General/
Acting Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

Defendant Michael Esposito appeals his conviction for driving

while intoxicated (DWI), N.J.S.A. 39:4-50(a), DWI in a school

zone, N.J.S.A. 39:4-50(g), and refusal to submit to a breath test
(Refusal), N.J.S.A. 39:4-50.4(a). Defendant was convicted

following a trial de novo in the Law Division.1 After merger,

defendant's driver's license was suspended for two consecutive

one-year terms, participation in the Intoxicated Driver Resource

Center for twelve hours was imposed, installation of an ignition

interlock device for six months following restoration of his

driving privileges was ordered, and all applicable fines and

penalties were assessed. We affirm.

We glean the following facts from the record. At about 3:00

a.m. on June 15, 2014, after observing a vehicle cross over the

double yellow lines on the roadway, Officer Kevin Brogan conducted

a motor vehicle stop at the intersection of Roseland Avenue and

Lenfell Lane in Essex Fells. The driver, later identified as

defendant, had "bloodshot and glassed over" eyes; slow, slurred

and incoherent speech; and a strong odor of alcoholic beverage

emanating from his mouth. Defendant also failed three field

sobriety tests,2 staggered and swayed "from side to side" when he

1
In the municipal court, defendant was also convicted of failure
to keep right, N.J.S.A. 39:4-82. However, that conviction was not
appealed.
2
Brogan administered the Horizontal Gaze Nystagmus (HGN), the
walk-and-turn, and the one-leg stand. He testified that for each
test, defendant exhibited indicators of intoxication.

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attempted to walk, stood with his feet wide apart for balance, and

moved "slowly" when producing his driving credentials.

Based on his observations and the results of the field

sobriety tests, Brogan placed defendant under arrest and

transported him to police headquarters, where Brogan read

defendant the New Jersey Attorney General's Standard Statement for

Motor Vehicle Operators (Standard Statement), which advised

defendant of the statutory requirement to submit to a chemical

breath test. After Brogan read the Standard Statement verbatim,

defendant refused to submit to a breath test and requested an

attorney. Defendant was subsequently charged accordingly.

At trial, a certified drug-free school zone map was admitted

into evidence as a business record. Brogan identified on the map

his original location and the location of the motor vehicle stop,

both of which were within the drug-free school zone. Brogan also

testified that the dash-cam video recorder in his patrol car was

activated during the motor vehicle stop. However, when cross-

examined about conducting the field sobriety tests out of the view

of the dash-cam, Brogan explained that he conducted the tests to

the right of the parked vehicles for safety reasons because

Roseland Avenue was a "busy road[.]"

Defendant testified on his own behalf and directly

contradicted Brogan's testimony in material areas. Defendant

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denied drinking alcohol on the night in question or crossing the

yellow lines on the roadway. Contrary to Brogan's testimony,

defendant testified that the field sobriety tests were performed

on an area of the roadway that was uneven. Nonetheless, defendant

claimed that he successfully completed the field sobriety tests

and attributed the redness in his eyes to seasonal allergies.

Defendant also claimed Brogan did not inform him of the refusal

consequences and, when defendant inquired whether he had to take

the test, Brogan's partner told him that he did not. However,

defendant admitted during cross-examination that he was familiar

with the Standard Statement from a prior motor vehicle stop in

November 2013 when he was suspected of DWI.

The municipal judge found Brogan's testimony credible based

on the manner in which he testified and his consistency on both

direct and cross-examination. In contrast, the municipal judge

rejected defendant's denials, finding that they were "self-

serving" and not credible. The Law Division judge accepted the

municipal judge's credibility determinations and, on July 30,

2015, found defendant guilty anew. In her oral decision, after

applying the applicable legal principles, the judge determined

that the evidence presented supported the guilty verdicts based

upon "[d]efendant's failure to successfully complete sobriety

tests and the police officer's observation of the [d]efendant's

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conduct[,]" as well as defendant's refusal to take a breath test

after "he was fully informed of the consequences[.]" This appeal

followed.

On appeal, defendant presents the following points for our

consideration:

POINT I

THE STATE FAILED TO MEET ITS BURDEN OF PROOF
AS TO THE DATE OF THE OFFENSE, AN ESSENTIAL
FACT NECESSARY TO ESTABLISH THE BASIS OF THE
PROBABLE CAUSE FOR THE MOTOR VEHICLE STOP, AND
TO PROVE THE SUBSTANTIVE CHARGES BEYOND A
REASONABLE DOUBT.

POINT II

THE CHARGE OF [N.J.S.A.] 39:4-82, KEEPING TO
THE RIGHT WAS THE INCORRECT STATUTE FOR THE
DEFENDANT'S PURPORTED MOVING MOTOR VEHICLE
VIOLATION.

POINT III

THE STATE FAILED TO LAY THE PROPER FOUNDATION
FOR THE CHARGE [N.J.S.A.] 39:4-50(g), DWI
WITHIN A THOUSAND FEET OF SCHOOL PROPERTY.

POINT IV

THE STATE FAILED TO MEET ITS BURDEN OF PROOF
AS TO THE VIOLATION OF [N.J.S.A.] 39:4-50.2.

POINT V

THE LAW DIVISION'S REVIEW OF THE TRIAL COURT'S
DECISION ON THE TRIAL DE NOVO IS DEFECTIVE.

Our review of the trial court's factual findings is limited

to whether the conclusions of the Law Division judge "could

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reasonably have been reached on sufficient credible evidence

present in the record." State v. Johnson, 42 N.J. 146, 162 (1964).

Unlike the Law Division, we do not independently assess the

evidence. State v. Locurto, 157 N.J. 463, 471 (1999). The rule

of deference is more compelling where, such as here, the municipal

and Law Division judges made concurrent findings. Id. at 474.

"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. (citation omitted).

"However, no such deference is owed to the Law Division or the

municipal court with respect to legal determinations or

conclusions reached on the basis of the facts." State v. Stas,

212 N.J. 37, 49 (2012).

Based upon these principles and our review of the record, we

affirm. We are satisfied that the Law Division judge's findings

of guilt could reasonably have been reached on sufficient credible

evidence present in the record. Defendant argues for the first

time on appeal that the State "failed to effectively establish the

date on which the alleged violations occurred." According to

defendant, because of this "critical defect in the State's case[,]"

the convictions should be reversed. At trial, Brogan mistakenly

testified that the incident occurred on June 22, 2014. However,

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the summonses issued to defendant were dated June 15, 2014.

Because defendant made no objection before the Law Division, we

review the Law Division's decision for plain error. R. 2:10-2.

Under this standard, "an error is reversible if it was

'clearly capable of producing an unjust result.'" State v.

Taffaro, 195 N.J. 442, 454 (2008) (quoting R. 2:10-2). Here, in

light of the fact that each summons issued to defendant had the

correct date and defense counsel conducted a vigorous cross-

examination of Brogan and never questioned him on the discrepancy,

we are satisfied that the date of the commission of the offenses

was never in dispute. Moreover, while testifying, defendant

admitted that the date of the incident was, in fact, June 15,

2014. Defendant testified that it was Father's Day and he had

plans to celebrate with his children later in the day. Because

the incorrect date had no real effect on the State's overall proofs

and the evidence of defendant's guilt was overwhelming, we find

no plain error.

Defendant also argues for the first time on appeal that the

State failed "to establish the proper foundation" for introducing

the drug-free school zone map into evidence as a business record.

When presented with the certified drug-free school zone map, Brogan

confirmed that it was kept in the ordinary course of business at

the Essex Fells Police Department, and that he was familiar with

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its contents. Brogan also provided credible testimony of his

observations at the time of the motor vehicle stop, specifically,

the distance traveled and the location of his and defendant's

vehicle in relation to the school zone. When the prosecutor sought

to introduce the map into evidence, defense counsel expressly

indicated that he had no objection. Counsel's failure to object

at trial constitutes a waiver of his opportunity to seek appellate

review of this issue on appeal. R. 2:10-2. Nonetheless, we are

satisfied that the State met its evidentiary burden because

N.J.S.A. 39:4-50(g) permits, but does not require, the

introduction of a certified map to prove the school zone element

of the violation.

Finally, we will not consider defendant's argument that the

State erroneously charged failure to keep right, instead of failure

to maintain a lane, N.J.S.A. 39:4-88, because defendant did not

appeal that conviction to the Law Division. See State v. Robinson,

200 N.J. 1, 20 (2009) (reiterating the well-settled principle that

"appellate courts will decline to consider questions or issues not

properly presented to the trial court when an opportunity for such

a presentation is available unless the questions so raised on

appeal go to the jurisdiction of the trial court or concern matters

of great public interest" (citation omitted).).

Affirmed.

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