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N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; failure to maintain lane, N.J.S.A. 39:4-88b; and failure to produce a valid insurance card, N.J.S.A. 39:6B-2. As this was defendant's fourth DWI conviction, Judge Mayo in the municipal court sentenced defendant to a ten-year license suspension, 180 days in jail, installation of an ignition interlock device as well as statutorily mandated fines, penalties and costs. Defendant received fines for the other motor vehicle violations. Judge Nieves, in the Law Division, imposed the same sentence. Defendant appeals, and we affirm. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version

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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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-0011-08T40011-08T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUAN PEREZ, Defendant-Appellant. ________________________________________________________________

Submitted June 8, 2009 - Decided Before Judges Carchman and Parrillo. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 71-2006. Diaz-Cobo and Pedraza, attorneys for appellant (Maria A. Pedraza, on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent

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(Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Following a municipal court trial and a de novo trial in the Law Division, defendant Juan Perez was found guilty of driving while intoxicated (DWI), N.J.S.A. 39:6B-2. As this was defendant's fourth DWI conviction, Judge Mayo in the municipal court sentenced defendant to a ten-year license suspension, 180 days in jail, installation of an ignition interlock device as well as statutorily mandated fines, penalties and costs. Defendant received fines for the other motor vehicle violations. Judge Nieves, in the Law Division, imposed the same sentence. Defendant appeals, and we affirm. The facts are simply stated. On February 3, 2005, Officer Joseph Marcantonio and Sergeant Quercia, his supervisor, of the East Brunswick Police Department, were on patrol when, at 12:20 a.m., they observed defendant proceeding at a speed of 25 to 30 miles per hour in a 45-mile per hour zone. The circumstances regarded by Officer Marcantonio as unusual defendant's taillights frequently illuminating even though there was no car in front of him or obstruction in the road. The officer then observed defendant's car drift into the left lane, return to the middle lane, again drift into the right lane and return to the middle lane. Defendant's brake lights illuminated intermittently and defendant continued to travel at a very low rate of speed. Officer Marcantonio activated his overhead lights and attempted to stop defendant's car. Defendant did not stop immediately, instead he continued for one-quarter of a mile and then stopped. The officer approached defendant's car and asked him for his license and registration. Defendant was slow to respond and fumbled in his wallet for his license. Defendant produced a license but did not produce a registration or an insurance card. While talking to defendant, the officer smelled a strong odor of alcohol on defendant's breath. According to the officer, defendant's eyes were bloodshot and watery and his eyelids were droopy. Defendant's speech was slurred, and he appeared to be sleepy. Officer Marcantonio asked defendant where he was coming from and how much he had to drink. Defendant claimed he had one beer. The officer asked defendant to perform a Standardized Field Sobriety Test which consisted of a series of tests. Defendant stated that he was too fat to perform the "one leg" test. Officer Marcantonio did not perceive defendant to be too large to perform the test and has experienced only one or two people in his extensive

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career who were too large to perform the test. Officer Marcantonio gave defendant a score of four out of four, "the maximum because [the officer] felt [defendant] could have performed it but he did not." Defendant failed to successfully complete a "walk and turn" test that was administered, and the officer observed that defendant was swaying as he stood outside the car. Based on his observations, Officer Marcantonio arrested defendant for driving while intoxicated. He transported defendant to the police station to administer a breathalyzer test. While in the police car, Officer Marcantonio noticed a strong smell of alcohol about defendant. Defendant stated that he ate chicken at 10 a.m. and now admitted to consuming four beers starting at 10 p.m. Officer Marcantonio was certified as a Breathalyzer operator. He was certified to administer the Alcotest in December 2004 and prepared the machine for operation, inputting the relevant information. Defendant then blew into the plastic mouth piece as instructed by Officer Marcantonio. After the first reading established that defendant did not blow into the mouth piece, the procedure was repeated resulting in a blood alcohol reading of 0.12 percent. Officer Marcantonio issued defendant summonses for driving while intoxicated, reckless driving, failure to produce insurance and failure to maintain lane. Both Judge Mayo in the municipal court and Judge Nieves in the Law Division found that the State had established all of the elements of the offenses beyond a reasonable doubt. On appeal, defendant asserts that the State failed to prove that defendant committed the DWI offense beyond a reasonable doubt. We have carefully reviewed the briefs and record and are satisfied that defendant's argument is without merit. The observations made by the officers at the scene standing alone suffice to establish the elements of the offense. State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.), aff'd, o.b., 293 N.J. Super. 535 (App. Div. 1996). Defendant's driving, the odor of alcohol, his demeanor and physical conduct as described by the officers provide a sufficient factual basis to support the findings of the judge in both the municipal court and Law Division. Additionally, and critically important, the Supreme Court has upheld the validity of the Alcotest, the test administered here to establish a blood alcohol reading of 0.12. State v. Chun, 194 N.J. 54, 150, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed.2d 41 (2008). Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the Municipal Court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (citing State v. Johnson,
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42 N.J. 146, 157 (1964)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62). Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the Municipal Court judge. Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Furthermore, when the Law Division agrees with the Municipal Court, the two-court rule must be considered. "Under the twocourt 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." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

We are satisfied that the Law Division judge's findings were based on substantial evidence in the record and perceive of no need for our intervention. Affirmed. (continued) (continued) 6 A-0011-08T4 August 25, 2009 0x01 graphic

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