NOT FOR PUBLICATION WITHOUT THE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.
2 A-5740-14T3
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
3 A-5740-14T3
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
4 A-5740-14T3
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
5 A-5740-14T3
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,
6 A-5740-14T3
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
7 A-5740-14T3
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.
8 A-5740-14T3