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N.J.S.A. 39:4-50.4a. We affirm. We repeat the pertinent facts developed in the Municipal Court trial spanning three
days.">
The status of this decision is unpublished
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(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4802-06T54802-06T5
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANTE R. GRECO,
Defendant-Appellant.
Submitted December 17, 2007- Decided
Before Judges Lintner and Sabatino.
On appeal from the Superior Court of
New Jersey, Law Division, Bergen County,
BMA 004-15-06.
Rem Zeller Law Group, attorneys for appellant (Joseph P. Rem, Jr. and Scott Gorman, on
the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Charles Cho,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, Dr. Dante Greco, appeals from his de novo conviction for refusal to submit to a breathalyzer, N.J.S.A.
39:4-50.4a. We affirm. We repeat the pertinent facts developed in the Municipal Court trial spanning three days.
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While on patrol at approximately 10:29 p.m., Officer Derek Smith of the Maywood Police Department noticed
defendant's white Mercury traveling eastbound on West Pleasant Avenue. Smith began following the Mercury.
Within a short time, Smith observed defendant swerve his vehicle twice, nearly hitting the concrete barrier. Smith
then saw defendant come to a stop at a red light at Maywood Avenue, straddling the straight and left turn lanes.
When the light changed, defendant hesitated approximately ten seconds before moving forward.
Between the intersections of Maywood and Elm Street, defendant stopped his vehicle twice for no apparent
reason. At the stop sign intersection at Elm Street, Smith observed defendant proceed into Elm without coming to a
complete stop, instead stopping his vehicle after it entered the intersection. Smith then activated his siren and
signaled defendant to stop.
At the open driver's side window, Smith detected a strong odor of alcohol emanating from defendant. According to
Smith, defendant's eyes appeared bloodshot and watery, his eyelids droopy, and his face was flushed. Defendant
also appeared sleepy to Smith. Smith twice asked defendant for his driver's license and registration. After several
minutes, defendant located his driver's license but handed Smith a registration for a different vehicle.
Officers John Lynch and Wuhrl arrived at the scene. Smith requested defendant to step out of the vehicle. As
defendant exited, Smith noticed that defendant had to pull himself up using the door handle. Once defendant was
outside, Smith noticed that defendant swayed from side to side and needed to lean on the front of the Mercury for
support.
Smith then asked defendant to perform three field sobriety tests. Before doing so, Smith inquired whether
defendant had any conditions that might affect his performance. Defendant responded that he had a neurological
disorder that made it hard for him to see things at night. Defendant was unable to recite the alphabet from A to X
as requested by Smith. Defendant was unable to successfully perform the Rhomberg test, which required him to
stand with his feet together, hands at his side, while he closed his eyes and tilted his head back. He also failed to
complete the walk-and-turn test by which defendant was instructed to place his right foot in front of his left, walk
heel-to-toe for nine steps in a straight line, then turn, and take nine steps back. Lynch confirmed that defendant
was unable to finish the alphabet and his speech was slurred. Lynch had to catch defendant to keep him from
falling to the ground while attempting to walk heel-to-toe.
Believing that defendant was under the influence of alcohol, Smith arrested defendant, gave him his Miranda
warnings, placed him in the patrol car, and transported him to headquarters. At headquarters, Smith, a licensed
breathalyzer operator, turned on the breathalyzer machine and read defendant the Miranda warning statement.
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Defendant responded that he understood and initialed each right but refused to sign the statement. Smith filled
out the time as 10:51 p.m., after looking at his watch.
After completing the Department's Alcohol Influence Report Form, verifying that the Breathalyzer was ready, and
reading the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle (Standard
Statement), Smith asked defendant to provide a sample of his breath. Defendant responded by saying that he
wanted water. Smith advised defendant that he could not give him water at that time but would give him water
after the test was completed. Smith entered defendant's response on the Standard Statement form and read the
supplemental portion of the Standard Statement to him. Again, when asked to give a sample, defendant
responded, "I want water."
Defendant called several witnesses to testify on his behalf. Nancy Dorer, defendant's secretary, Dr. Michael
Torsiello, a colleague, who dined with defendant after attending a seminar that day, and Dr. Joel F. Lehrer,
defendant's physician, testified to defendant's normally unstable gait. Lehrer testified that defendant had suffered
for more than six years from a neurological disorder caused by an abnormal brain stem, resulting in an abnormal
gait and imbalance. However, Lehrer conceded on cross-examination that defendant's neurological disorder would
not have caused him to slur his speech. Lieutenant Raymond J. Cramer, a retired Clifton Police officer, testified that
defendant had previously had difficulty walking from one point to another over the past several years.
Testifying on his own behalf, defendant stated that he was never asked to take a breathalyzer test and denied
having any problem reciting the alphabet as requested. He acknowledged telling Smith, after being stopped, that
he had a couple of glasses of wine with dinner. He indicated that he has "plusoric face," meaning that his face is
normally red, and that the cataract surgeries he has had on his left eye make his eye appear bloodshot and watery.
The Municipal Court judge found that "Smith had a reasonable and articulable suspicion for the initial motor vehicle
stop" and "probable cause to arrest [defendant] based upon . . . Smith and . . . Lynch's observation of the field
sobriety and other tests administered at the scene." The judge found Smith to be a credible witness regarding the
reason for the traffic stop and subsequent arrest, but concluded that "the level of proof or the finding of probable
cause does not rise to the level of proof beyond a reasonable doubt that the defendant was in fact driving while
intoxicated." The judge found that the request to submit to the Breathalyzer was made within a reasonable time
following defendant's arrest and defendant was presented with the Standard Statement. Citing State v. Widmaier,
157 N.J. 475, 488 (1999), the judge found that defendant's failure to state an unequivocal yes to the officer's request,
after being informed of the consequences of the refusal, amounted to a refusal.
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On appeal de novo, the Law Division judge, in a letter opinion, recited the relevant facts, deferred to the trial judge's
determination finding Smith's testimony credible, and found there was probable cause to arrest defendant for
driving while intoxicated. He also found defendant guilty of refusing to submit to a breathalyzer test after being
advised of the consequences of refusal.
On appeal, defendant raises the following contentions:
I. THE LAW DIVISION ERRED IN FINDING DR. GRECO GUILTY OF REFUSING TO SUBMIT TO
A BREATHALYZER TEST BECAUSE THE ARRESTING OFFICERS FAILED TO ASK DR. GRECO
TO [SUBMIT] TO A BREATHALYZER TEST.
II. ASSUMING, ARGUENDO, THAT DR. GRECO WAS ASKED TO SUBMIT TO A
BREATHALYZER TEST, THE LAW DIVISION ERRED IN FINDING DR. GRECO GUILTY OF
REFUSAL BECAUSE THE ARRESTING OFFICERS LACKED REASONABLE GROUNDS FOR
BELIEVING THAT DR. GRECO HAD DRIVEN HIS VEHICLE WHILE UNDER THE INFLUENCE
OF ALCOHOL.
Defendant argues that the record is devoid of sufficient support to find that defendant refused a
breathalyzer test because Smith had to rely on his report to refresh his recollection. He also asserts that, even if the
proof was sufficient to establish that defendant refused to submit to the breathalyzer, Smith lacked probable cause
to arrest because his concern for defendant driving was "implausible" based upon Dr. Torsiello's testimony that
defendant demonstrated no difficulty when he drove Torsiello back to his office prior to the stop. Defendant
maintains that his neurological disorder militated against a finding that there was probable cause for the arrest, as
did his testimony that he performed the alphabet test as requested.
As an appellate tribunal, our standard of review is to determine whether there was sufficient credible
evidence in the record to uphold the Law Division findings. State v. Johnson, 42 N.J. 146, 162 (1964). "[I]t [is]
improper for us to engage in an independent assessment of the evidence as if [we] were the court of first instance."
State v. Locurto, 157 N.J. 463, 471 (1999). Essentially, defendant asks us to make just such a determination
prohibited by Locurto. Contrary to defendant's contention, the Law Division judge appropriately deferred to the
credibility findings of the municipal court judge. Id. at 472-74. In doing so, the judge made it clear that he relied on
his own independent findings of fact as to the presence of probable cause to justify defendant's arrest, as well as
defendant's guilt of refusing to submit a breath sample, after reviewing the evidence in the Municipal Court record.
Johnson, supra, 42 N.J. at 157; State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). Defendant's factual and
legal contentions lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
Defendant was also convicted of careless driving, N.J.S.A. 39:3-29. He was acquitted of driving while intoxicated,
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N.J.S.A. 39:4-50. Defendant only appeals from his conviction of refusal to submit to a breathalyzer. Defendant's
suspension was stayed pending this appeal.
Officer Wuhrl's first name is not provided in the record.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
Smith would not let defendant fill out the time. Moreover, there was a discrepancy in the testimony and the forms
as to the time of the stop, arrest, refusal, and release of defendant to the custody of his secretary. Defendant, his
secretary, Nancy Dorer, and Dr. Michael J. Torsiello claim that the events took place between 9:30 and 10:30 p.m.
Further, Dorer claims that she received defendant's telephone call to come and pick him up at headquarters at
10:10 p.m. However, the police report and Smith's subsequent trial testimony indicate that the stop did not occur
until approximately 10:30 p.m., and that the forms were not completed until just before 11:00 p.m.
(continued)
(continued)
9
A-4802-06T5
January 11, 2008
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