STATE OF NEW JERSEY VS. MANUEL S. RIVEIRO (19-24, SOMERSET…

                                NOT FOR PUBLICATION WITHOUT THE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-5581-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MANUEL S. RIVEIRO,

     Defendant-Appellant.
_________________________

                   Argued October 7, 2020 – Decided October 29, 2020

                   Before Judges Ostrer and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Municipal Appeal No. 19-
                   24.

                   Michael B. Cooke argued the cause for appellant.

                   Lauren R. Casale, Assistant Prosecutor, argued the
                   cause for respondent (Michael H. Robertson, Somerset
                   County Prosecutor, attorney; Lauren R. Casale, of
                   counsel and on the brief).

PER CURIAM
      Defendant Manuel S. Riveiro appeals from his July 9, 2019 Law Division

conviction for driving while under the influence (DUI), N.J.S.A. 39:4-50(a) and

for DUI within 1000 feet of a school property, N.J.S.A. 39:4-50(g)(1).1 We

affirm.

      On June 9, 2018, at approximately 10:03 p.m., Officer Dylan Cote

responded to a possible one-car accident near the intersection of Mountain

Avenue and Stirling Road in Warren, New Jersey. When Officer Cote arrived

at the scene, he observed tire marks on the roadway, tracks going off into the

grass, and a disabled vehicle in the middle of the roadway on Mountain Avenue.

Officer Cote approached the driver's side of the disabled vehicle and asked

defendant to roll down his window. Defendant was in the driver’s seat with the

keys in the ignition and the headlights on.

      When defendant spoke to Officer Cote, the officer immediately detected

a strong odor of alcohol emanating from defendant’s vehicle. The officer also

noted that defendant's responses to his questions about the accident were slow,



1
  Effective December 1, 2019, subsection (g) of N.J.S.A. 39:4-50 has been
deleted. "Thus, no defendant may be newly charged with the specific charge of
driving while intoxicated in a school zone on or after December 1, 2019."
Administrative Directive #25-19, "Implementation of New DWI Law" (Dec. 4,
2019).


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slurred and difficult to understand. Also, defendant had no recollection of where

he was or that he was involved in an accident.

      The officer asked defendant to step out of his car and when defendant

complied, he had difficulty keeping his balance. He grabbed onto the car for

support to keep from falling.      The officer noticed defendant’s eyes were

bloodshot and watery, and that his lids were droopy.

      Upon examining the exterior of defendant's car, Officer Cote noticed

damage to the front bumper and one side of the vehicle. Additionally, he saw a

long, continuous trail of motor oil which had leaked from defendant's car. The

trail led back to a damaged speed limit sign, which was the initial point of

impact. Additionally, the officer saw tire marks leading back to the intersection

of Mountain Avenue and Stirling Road.

      Sergeant Robert Ferreiro joined Officer Cote on scene and independently

witnessed roadway debris on the ground, as well as a trail of motor oil on the

road. Officer Cote briefed him about his preliminary observations.

       As Sergeant Ferreiro began his investigation, he detected a strong odor

of alcohol coming from defendant, noticed his "bloodshot, watery eyes," and

defendant's inability to maintain his balance. The officer asked defendant to

submit to standardized field sobriety tests (FSTs), starting with an alphabet test,


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                                        3
which defendant failed. Defendant also volunteered that he had consumed eight

beers at a bar. Defendant was arrested and escorted to police headquarters. En

route to police headquarters, Officer Cote again noticed defendant's slurred

speech and a strong odor of alcoholic beverage emanating from the backseat of

his patrol vehicle.

      At police headquarters, defendant submitted to an Alcotest. His blood

alcohol content from the test was 0.28, more than three times the legal limit. In

addition to being charged with DUI and DUI within 1000 feet of school property,

defendant was ticketed for maintenance of lamps, N.J.S.A. 39:3-66, traffic on

marked lanes, N.J.S.A. 39:4-88, reckless driving, N.J.S.A. 39:4-96, careless

driving, N.J.S.A. 39:4-97, failure to report an accident, N.J.S.A. 39:4-130, and

failure to exhibit license and registration, N.J.S.A. 39:3-29.

      Officer Cote and Sergeant Ferreiro testified on behalf of the State at

defendant's municipal trial. During Sergeant Ferreiro's testimony, defendant

objected to the State's introduction of a map to show that the crash occurred next

to the Woodland Elementary School.          The municipal judge sustained the

objection, due to the State's failure to provide the map to defendant during

discovery. Sergeant Ferreiro then testified that he had an opportunity to make a




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determination as to where defendant's car had its "initial point of impact." He

was asked if he was able to determine whether defendant operated his vehicle

within 1000 feet of the school, to which he replied, "Well within 1[]000 feet,

yes."    Additionally, the officer confirmed the school property was on the

southeast corner of Stirling Road and Mountain Avenue, adjacent to the

roadway.     The municipal judge credited this testimony, given the officer's

training and lengthy experience as an officer in Warren Township.

        At the conclusion of the municipal trial, the judge found defendant guilty

of DUI, DUI within 1000 feet of school property, and traffic on marked lanes.

The judge dismissed the motor vehicle summonses for maintenance of lamps,

failure to exhibit license and registration, and failure to report an accident.

Further, the judge merged the reckless and careless driving offenses with the

DUI charge.

        Before he was sentenced, defendant argued that he should not be treated

as a third-time DUI offender, absent proof from the State that his 2008 DUI

conviction was not a "Dennis" case, as referenced in State v. Cassidy, 235 N.J.

482 (2018).2 If this proved to be true, defendant argued he should reap the


2
  Trooper Marc W. Dennis was a former coordinator in the New Jersey State
Police's Alcohol Drug Testing Unit who was criminally charged for "neglecting


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                                         5
benefit of a "stepped-down" sentence as a first-time offender, since his first DUI

offense occurred in 1996.3 To address this issue, the State advised that it had

requested but had not received proof that defendant's case was not a "Dennis"

case. Further, the municipal judge reviewed defendant's driver's abstract, which

referenced defendant's prior DUI convictions from 1996 and 2008, and he

confirmed through a judiciary website that defendant's 2008 DUI conviction in

South Brunswick municipal court was not listed as a "Dennis" case.

Additionally,   the    Warren    Township      municipal    court    administrator

independently verified that defendant's 2008 DUI conviction was not on the

"Dennis" list. Defense counsel asked to see the information the judge obtained

from the judiciary website and the judge immediately provided it to counsel.




to take required measurements and having falsely certified that he followed the
calibration procedures" when performing semi-annual calibrations on Alcotest
instruments. Cassidy, 235 N.J. at 486. The Court held that defendants affected
by Trooper Dennis's false reports could seek relief. Id. at 498.
3
   "N.J.S.A. 39:4-50 prescribes the penalties that may be imposed on a defendant
for a first, second, and third or subsequent DUI offenses." State v. Revie, 220
N.J. 126, 128 (2014). It also includes a "step-down" provision which states: "if
the second offense occurs more than [ten] years after the first offense, the court
shall treat the second conviction as a first offense for sentencing purposes and
if a third offense occurs more than [ten] years after the second offense, the court
shall treat the third conviction as a second offense for sentencing purposes."
N.J.S.A. 39:4-50(a).


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After reviewing the requested information, defense counsel raised no objections

to the judiciary website information.

      As the judge was satisfied defendant should be sentenced as a third-time

DUI offender, he imposed the standard fines and penalties, suspended

defendant's driver's license for ten years for defendant's violation of N.J.S.A.

39:4-50, and an additional year for the school zone offense. Additionally, the

judge sentenced defendant to six months in jail for the DUI and a consecutive

sixty-day term for the school zone offense.

      Defendant appealed from his conviction and sentence, and a de novo trial

occurred in the Law Division on June 26, 2019. During that hearing, defendant

again challenged the validity of his arrest, and raised an objection to being

sentenced as a third-time offender due to the State's failure to establish his 2008

conviction did not stem from a "Dennis" issue. Further, he argued Sergeant

Ferreiro's testimony about the 1000 feet requirement for a school zone violation

was a "net opinion" which could not support the school zone conviction. On

July 9, 2019, the Law Division judge issued a comprehensive, well-reasoned

written opinion, finding defendant guilty of the DUI and school zone violations.

She found defendant's arrest was proper, as it was based on probable cause, so

that no arrest warrant was needed. She also found defendant was guilty of


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                                        7
violating N.J.S.A. 39:4-50(g)(1), based on Sergeant Ferreiro's testimony that

"Woodland Elementary School is on the southeast corner of St[i]rling Road and

Mountain Avenue - the corner where defendant's vehicle had its point of

impact."   Finally, the Law Division judge rejected defendant's "Dennis"

argument, as the municipal judge "received confirmation that [d]efendant's 2008

South Brunswick conviction was not a case where Trooper Dennis was involved

in the calibration of the instruments used to convict" defendant, noting this

information was available on the judiciary website and independently verified

between the Warren Township and South Brunswick Municipal Court

Administrators.

      On the instant appeal, defendant renews the arguments he previously

advanced without success, as follows:

            POINT I: THE STATE FAILED TO PROVE
            OPERATION OF THE VEHICLE BEYOND [A]
            REASONABLE DOUBT; ACCORDINGLY, ALL
            CONVICTIONS BASED UPON OPERATION
            SHOULD BE DISMISSED.

            POINT II: DEFENDANT'S ARREST WAS
            INVALID, BECAUSE THE OFFICER WHO
            ARRESTED DEFENDANT AND SIGNED AND
            ISSUED THE SUMMONS[ES] DID NOT OBSERVE
            OPERATION OF THE VEHICLE AND DID NOT
            OBTAIN A WARRANT PER [N.J.S.A.] 39:5-25;
            ACCORDINGLY,   ALL   CHARGES     BASED
            THEREUPON SHOULD BE DISMISSED.

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                                        8
            POINT III: THE STATE FAILED TO PROVE
            OPERATION WITHIN 1[]000 [FEET] OF A SCHOOL
            ZONE IN VIOLATION OF [N.J.S.A.] 39:4-50(G)(1).

            POINT IV: THE STATE FAILED TO MEET ITS
            AFFIRMATIVE OBLIGATION TO PRODUCE
            CALIBRATION DOCUMENTS TO MEET ITS
            BURDEN TO PROVE A PRIOR DUI AS A
            PREDICATE FOR AN ENHANCED SENTENCE.

            POINT V:        IF THIS COURT SUSTAINS
            DEFENDANT'S [N.J.S.A.]        39:4-50 AND/OR
            [N.J.S.A.] 39:4-5[0](G)(1) CONVICTIONS BASED
            UPON THE JUNE 9, 2018 INCIDENT, BUT FINDS
            THAT DEFENDANT'S 2008 CASE CANNOT BE
            USED AS THE PREDICATE TO ENHANCE
            PUNISHMENT AS A THIRD DUI, DEFENDANT
            SHOULD BE SENTENCED AS IF THE PRESENT
            OFFENSE IS A FIRST DUI.

            POINT VI: THIS COURT SHOULD APPLY
            DEFENDANT'S [NINETY] DAYS IN JAIL SERVED
            ON THIS OFFENSE TO ANY FINE OR TERM OF
            INCARCERATION    IF  THIS   MATTER     IS
            RESENTENCED UNDER A LOWER LEVEL OF
            SENTENCE.

      Having carefully reviewed these arguments, we are not persuaded.

     As a threshold matter, we are mindful that on appeal from a municipal

court to the Law Division, the review is de novo on the record. R. 3:23-8(a)(2).

The trial court must make independent "findings of fact and conclusions of law

but defers to the municipal court’s credibility findings." State v. Robertson,


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                                       9
228 N.J. 138, 147 (2017). Our review of a de novo conviction in the Law

Division following a municipal court appeal is "exceedingly narrow." State v.

Locurto, 157 N.J. 463, 470 (1999).      Unlike the Law Division, we do not

independently assess the evidence. Id. at 471-72. The "standard of review of

a de novo verdict after a municipal court trial is to 'determine whether the

findings made could reasonably have been reached on sufficient credi ble

evidence present in the record,' considering the proofs as a whole." State v.

Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Johnson, 42 N.J.

146 (1964)).

      The rule of deference is more compelling here, where the municipal and

Law Division judges made concurrent findings.        Locurto, 157 N.J. 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, "[a] trial court’s interpretation of the law and the

legal consequences that flow from established facts are not entitled to any

special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995).




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      Guided by these standards, we are satisfied defendant's contention that the

State failed to prove beyond a reasonable doubt that he operated a car while

intoxicated lacks merit. "A person who operates a motor vehicle while under

the influence of intoxicating liquor . . . or operates a motor vehicle with a blood

alcohol concentration of 0.08% or more by weight of alcohol in the defendant's

blood" is guilty of DUI. N.J.S.A. 39:5-40(a). The term "operates" as used in

the statute "must be given broad construction," and a defendant need not be seen

driving a vehicle in order to be convicted of DUI. Ebert, 377 N.J. Super. at 10.

"Operation may be proved by any direct or circumstantial evidence – as long as

it is competent and meets the requisite standards of proof." State v. George, 257

N.J. Super. 493, 497 (App. Div. 1992). See State v. Thompson, 462 N.J. Super.

370, 375 (App. Div. 2020) (confirming that "operation . . . may . . . be established

'by observation of the defendant in or out of the vehicle under circumstances

indicating that the defendant had been driving while intoxicated.'" (quoting

Ebert, 377 N.J. Super. at 11)).

      Here, Officer Cote testified that when he first arrived at the scene of the

accident, he observed tire marks in the roadway, tracks in the grass, a stationary

vehicle with the defendant in the driver seat, his keys in the ignition and his

headlights on. Further, both officers testified that defendant smelled of alcohol,


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slurred his speech and had watery, bloodshot eyes. Each officer also noted

defendant's damaged vehicle was found in the road, and there was a continuous

trail of motor oil on the road leading back to his car. Moreover, defendant failed

the FSTs. As the municipal and Law Division judges credited the officers'

testimony, we are satisfied there was ample evidence to find defendant operated

his vehicle while intoxicated.

      Regarding the validity of defendant's arrest, we note that "[a] law

enforcement officer may arrest without a warrant any person who the officer has

probable cause to believe has operated a motor vehicle in violation of [N.J.S.A.]

39:4-50." N.J.S.A. 39:5-25. "'Probable cause' for an arrest exists where a police

officer has a well-founded suspicion or belief of guilt. That suspicion or belief

may constitute something less than the proof needed to convict and something

more than a raw, unsupported suspicion." State v. Wanczyk, 201 N.J. Super.

258, 266 (App. Div. 1985). "In determining whether there was probable cause

to make an arrest, a court must look to the totality of the circumstances and view

those circumstances 'from the standpoint of an objectively reasonable police

officer.'" State v. Basil, 202 N.J. 570, 585 (2010) (quoting Maryland v. Pringle,

540 U.S. 366, 371 (2003)). In the context of an arrest for DUI, "the yardstick

of making [an] arrest . . . is whether the arresting officer 'had reasonable grounds


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                                        12
to believe that the driver was operating a motor vehicle in violation [of N.J.S.A.

39:4-50].'" State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (quoting

Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)).

      Here, the arresting officer, Sergeant Ferreiro, personally observed

defendant's car in the middle of the roadway with a continuous trail of motor oil

from the point of impact leading to defendant's vehicle. Further, the officer

detected the odor of alcohol emanating from the defendant, saw he had

bloodshot, watery eyes, could not keep his balance, and failed the FSTs.

Furthermore, defendant admitted to drinking eight beers that night at a bar.

Under these circumstances, we agree with the Law Division judge that Sergeant

Ferreiro had probable cause to arrest defendant on suspicion of DUI. See

George, 257 N.J. Super. at 496-97 (finding that a heavy odor of alcohol creates

probable cause for a DUI arrest); Moskal, 246 N.J. Super. at 20-21 (finding the

arresting officer had probable cause to believe defendant was operating a motor

vehicle while intoxicated because a strong odor of alcohol emanated from the

defendant, he admitted to drinking, defendant's face was flushed and his eyes

were drooping).

      We also find no merit in defendant's claim that the State did not meet its

burden in proving the school zone violation. N.J.S.A. 39:4-50(g) permitted, but


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                                       13
did not require, the introduction of a certified map to prove the school zone

element of the violation. When N.J.S.A. 39:4-50(g) was in effect, it provided

that "[a] map or true copy of a map depicting the location and boundaries of the

area on or within 1[]000 feet of any property used for school purposes . . . may

be used in a prosecution under paragraph (1) of this subsection." Accordingly,

to meet its evidentiary burden that a defendant operated a vehicle while

intoxicated within 1000 feet of school property, the State was not required to

introduce a map of the subject area into evidence. Moreover, given the specific

details Sergeant Ferreiro provided at trial, the Law Division judge was free to

accept the testimony of this trained veteran officer when he confirmed that

Woodland Elementary School was "well within 1000 feet" of where defendant

operated his vehicle in an intoxicated state.

      Finally, we are not persuaded that defendant should be resentenced

because the State failed to produce the calibration documents from his 2008 DUI

conviction. Likewise, we do not agree he should be resentenced as a first-time

DUI offender, with the added benefit of accrued jail credits.

      The purpose of producing the calibration documents is to ensure no

defendant convicted of DUI is subjected to enhanced penalties based on flawed,

unreliable calibrations from Trooper Dennis. Here, the State requested, but was


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                                       14
unable to obtain the calibration documents involved in defendant's 2008 DUI

conviction from South Brunswick. However, the municipal judge appropriately

took notice of information set forth on the judiciary website to confirm that

defendant's 2008 conviction did not involve Trooper Dennis. N.J.R.E. 201(b).

His court administrator also independently verified this evidence. Moreover,

defense counsel reviewed this information prior to sentencing and raised no

claims to contest its accuracy.   Accordingly, we perceive no basis to modify

defendant's sentence as a third-time offender.

      To the extent we have not addressed defendant's remaining arguments, we

find they do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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