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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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.
A-5581-18T1
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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,
A-5581-18T1
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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).
A-5581-18T1
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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,
A-5581-18T1
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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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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
A-5581-18T1
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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
A-5581-18T1
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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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