STATE OF NEW JERSEY VS. PARAMJIT SINGH (380992, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0876-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PARAMJIT SINGH,
Defendant-Appellant.
__________________________
Submitted August 30, 2018 – Decided November 1, 2018
Before Judges Rothstadt and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Municipal Appeal No.
380992.
Levow DWI Law, PC, attorneys for appellant (Evan M.
Levow, of counsel and on the brief; Sandra L. Battista,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (John J. Lafferty, IV, Special Deputy
Attorney General, of counsel and on the brief).
PER CURIAM
Defendant, Paramjit Singh, appeals from his conviction following a trial
de novo in the Law Division of refusal to submit to a chemical breath test,
N.J.S.A. 39:4-50.4a. We affirm.
I.
At about 2:45 a.m. on March 17, 2015, Atlantic City police officer Robert
Dessicino was dispatched to investigate a report of a man sleeping in a yellow
van near Hartford and Fairmount Avenues. Dessicino, arriving about ninety
seconds later, found no one at that location. He then spotted a yellow van
approximately a block away.
Through the van's window, Dessicino saw defendant sleeping in the
driver's seat with a wet spot in his groin area consistent with defendant having
urinated on himself. The driver's seat was upright, the engine was running with
the key in the ignition, an empty Whiskey bottle rested in the center console,
and defendant was within arms' length of the steering wheel.
After several unsuccessful attempts, Dessicino woke defendant by yelling
and banging on the van's window. Officer Lopez arrived on scene, and from the
passenger side of the car, saw defendant's foot on the brake pedal. Lopez,
observing defendant's watery, bloodshot eyes, and smelling alcohol on his
A-0876-16T2
2
breath, placed defendant under arrest for driving while intoxicated, N.J.S.A.
39:4-50.
Defendant agreed to take a breathalyzer test. Lopez gave defendant
instructions on how to provide a breath sample. Although defendant stated that
he understood the instructions, none of his eleven breath samples or two control
samples were sufficient for the Alcotest to function. As a result, Lopez charged
defendant with refusal to submit to a breath test. Although the refusal offense
is set forth in N.J.S.A. 39:4-50.4a, the summons given to defendant listed only
N.J.S.A. 39:4-50.2, a related statute that provides that all drivers consent to
submit to a breathalyzer test when a police officer has reasonable grounds to
believe that a driver has been operating or is in physical control of a motor
vehicle while under the influence of alcohol in violation of N.J.S.A. 39:4-50.1
Following a trial, a Municipal Court judge found defendant guilty of
violating N.J.S.A. 39:4-50.4a. After hearing testimony from the officers on
scene, and a witness produced by defendant, the court found beyond a reasonable
doubt that: (1) defendant was in actual physical control of the van while under
1
A copy of the summons is not included in defendant's appendix. The parties,
however, do not dispute that the summons referenced N.J.S.A. 39:4-50.2, and
not N.J.S.A. 39:4-50.4a.
A-0876-16T2
3
the influence of alcohol; (2) the officers had probable cause to believe that
defendant was in actual physical control of the van while under the influence of
alcohol; and (3) defendant refused to comply with the breathalyzer test by failing
to produce sufficient breath samples. The court sentenced defendant as a third-
time DWI offender to a ten-year suspension of driving privileges, eighteen
months of ignition interlock once his driving privileges are restored, related
fines, and twelve hours in the Intoxicated Driving Resource Center.2
On appeal to the Law Division, the court reviewed the record of the
Municipal Court and found defendant guilty of violating N.J.S.A. 39:4-50.4a.
As was the case with the Municipal Court, the Law Division judge found beyond
a reasonable doubt that: (1) defendant was in actual physical control of the van
while under the influence of alcohol; (2) the officers had probable cause to
believe that defendant was in actual physical control of the van while under the
influence of alcohol; and (3) defendant refused to comply with the breathalyzer
test by failing to produce sufficient breath samples. The Law Division judge
imposed the same sentence as did the Municipal Court judge. At no time during
2
Defendant was also charged with reckless driving, N.J.S.A. 39:4-96, driving
while intoxicated, N.J.S.A. 39:4-50; driving while intoxicated in a school zone,
N.J.S.A. 39:4-50(g), and possessing an open container of alcohol in a motor
vehicle, N.J.S.A. 39:4-51b. Those charges were dismissed prior to trial.
A-0876-16T2
4
the proceedings below did defendant argue that he was not on notice of the
charge against him, or that the reference to N.J.S.A. 39:4-50.2 in the summons
prejudiced his ability to provide a defense to the State's allegation that he refused
to provide a breath sample for testing.
This appeal followed. Defendant makes the following arguments for our
consideration:
POINT I
AS APPELLANT WAS WRONGFULLY CHARGED
UNDER[] N.J.S.A. 39:4-50.2, THE REFUSAL
CHARGE SHOULD HAVE BEEN DISMISSED.
(ISSUE NOT RAISED BELOW).
POINT II
THERE IS NO PROBABLE CAUSE TO BELIEVE
THAT APPELLANT OPERATED OR HAD THE
INTENT TO OPERATE A MOTOR VEHICLE, AND
HE SHOULD NOT HAVE BEEN CHARGED WITH
REFUSAL.
POINT III
NO REFUSAL TO SUBMIT BREATH SAMPLES
EXISTS IN THIS CASE, APPELLANT SUBMITTED
TEN BREATH SAMPLES.
II.
We begin with defendant's contention that he was deprived of due process
by having been charged with violating N.J.S.A. 39:4-50.2, but convicted of
A-0876-16T2
5
violating N.J.S.A. 39:4-50.4a. Because defendant did not raise this argument in
the trial courts, we review the question under the plain error standard. State v.
Funderburg, 225 N.J. 66, 79 (2016). We will, therefore, disregard the error
"unless it is of such a nature as to have been clearly capable of producing an
unjust result." Ibid. (quoting R. 2:10-2; citing State v. Robinson, 165 N.J. 32,
47 (2000)). "The mere possibility of an unjust result is not enough" to warrant
relief. Ibid. (citing State v. Jordon, 147 N.J. 409, 422 (1997)).
The statute cited in defendant's summons, N.J.S.A. 39:4-50.2, provides:
(a) Any person who operates a motor vehicle on any
public road, street or highway . . . in this State shall be
deemed to have given his consent to the taking of
samples of his breath for the purpose of making
chemical tests to determine the content of alcohol in his
blood; provided, however, that the taking of samples is
made in accordance with the provisions of this act and
at the request of a police officer who has reasonable
grounds to believe that such person has been operating
a motor vehicle in violation of the provisions of
[N.J.S.A.] 39:4-50 . . . .
....
(e) No chemical test, as provided in this section, or
specimen necessary thereto, may be made or taken
forcibly against physical resistance thereto by the
defendant. The police officer shall, however, inform
the person arrested of the consequences of refusing to
submit to such test in accordance with section 2 of this
amendatory and supplementary act [N.J.S.A. 39:4-
50.4a]. A standard statement, prepared by the chief
A-0876-16T2
6
administrator, shall be read by the police officer to the
person under arrest.
The statute defendant was convicted of violating, N.J.S.A. 39:4-50.4a, provides,
in relevant part, that
the municipal court shall revoke the right to operate a
motor vehicle of any operator who, after being arrested
for a violation of [N.J.S.A.] 39:4-50 . . . shall refuse to
submit to a test provided for in [N.J.S.A.] 39:4-50.2
when requested to do so, for not less than seven months
or more than one year . . . unless the refusal was in
connection with a third or subsequent offense under this
section in which case the revocation shall be for ten
years.
As our Supreme Court has held "[t]o identify all of the elements of a
refusal offense, we must look at the plain language of both statutes because
although they appear in different sections, they are plainly interrelated." State
v. Marquez, 202 N.J. 485, 501 (2010). Given that N.J.S.A. 39:4-50.2 and
N.J.S.A. 39:4-50.4a "cross-reference one another internally" and "rely on each
other substantively[,]" the two statutes "must therefore be read together." Id. at
502. The Court has cautioned that "care should be taken to list . . . N.J.S.A.
39:4-50.4a, the exact statutory provision applicable to breathalyzer refusal
cases" in documents charging a defendant with refusal to provide a breath
sample. State v. Cummings, 184 N.J. 84, 90 n.1 (2005).
A-0876-16T2
7
However, where "[n]o complaint has been raised concerning that error"
and "no prejudice resulting from it" has been identified, dismissal of the charge
is not required. Ibid. To hold otherwise would place "form over substance," an
approach disfavored in our State. State v. Fisher, 180 N.J. 462, 472 (2004); see
also R. 3:7-3(a) ("[E]rror in the citation [to a statute] or its omission shall not be
ground for dismissal of the indictment or accusation or for reversal of a
conviction if the error or omission did not prejudicially mislead the defendant.").
Our review of the record confirms that defendant was not prejudiced by
the State's citation of N.J.S.A. 39:4-50.2 instead of N.J.S.A. 39:4-50.4a in the
summons charging him with refusal. The trial court transcripts, from both the
Municipal Court and the Law Division, show that defendant's counsel was aware
his client was charged with refusal. He elicited testimony, objected to the
introduction of evidence, and made legal arguments all directed at challenging
the officers' basis for ordering defendant to submit to a breathalyzer test, and
intended to frustrate the State's efforts to prove that his client refused to provide
adequate breaths. At no point in either court was an objection made with respect
to the statute cited in the summons. Nor do the transcripts reveal any apparent
confusion on the part of counsel or the courts with respect to the charge alleged
against defendant. We find in the record no harm to defendant resulting from
A-0876-16T2
8
the reference to N.J.S.A. 39:4-50.2 rather than N.J.S.A. 39:4-50.4a in the
summons.
We turn to defendant's argument that the officers lacked probable cause
to order him to take a breathalyzer test. In order for a defendant to be found
guilty of violating N.J.S.A. 39:4-50.4a, the State must establish beyond a
reasonable doubt each of the following:
(1) the arresting officer had probable cause to believe
that defendant had been driving or was in actual
physical control of a motor vehicle while under the
influence of alcohol or drugs; (2) defendant was
arrested for driving while intoxicated; (3) the officer
requested defendant to submit to a chemical breath test
and informed defendant of the consequences of
refusing to do so; and (4) defendant thereafter refused
to submit to the test.
[State v. Marquez, 202 N.J. 485, 503 (2010) (citing
State v. Wright, 107 N.J. 488, 490 (1987)).]
Defendant concedes factors (2), (3), and (4) above, and argues only that the
officers lacked probable cause to believe defendant was operating the van while
under the influence of alcohol.
"[P]roof of actual operation is not required" to sustain a conviction for
refusal to submit a sample for a breathalyzer test. Wright, 107 N.J. at 490. Proof
beyond a reasonable doubt that the officers had reasonable cause to believe the
defendant had actual physical control of a vehicle while under the influence of
A-0876-16T2
9
alcohol will suffice. Cummings, 184 N.J. at 95-96. The Municipal Court judge,
after hearing the officers' testimony and weighing their credibility, found
beyond a reasonable doubt that the officers had probable cause to believe
defendant was in actual physical control of the van while under the influence of
alcohol. The Law Division judge reached the same conclusion after reviewing
the Municipal Court record.
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 Law Division judge must make
independent findings of fact and conclusions of law but defers to the municipal
court's credibility findings. State v. Robinson, 228 N.J. 138, 144 (2017). Unlike
the Law Division, we do not independently access 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 credib ility
determinations made by two lower courts absent a very obvious and exceptional
showing of error." Ibid. (citation omitted). "Therefore, appellate review of the
factual and credibility findings of the municipal court and Law Division 'is
A-0876-16T2
10
exceedingly narrow.'" State v. Reece, 222 N.J. 154, 167 (2015) (quoting
Locurto, 157 N.J. at 470).
Our review of the record reveals sufficient credible evidence supporting
the trial courts' fact findings and legal conclusions. Defendant was found in the
driver's seat of a vehicle with the key in the ignition, engine running, and his
foot on the brake. He was unconscious, smelled of alcohol, and had an empty
bottle of whiskey next to him. These facts amply support the officers' probable
cause to believe defendant was in actual control of the van while under the
influence of alcohol.
The suggestion by defendant's counsel that defendant turned on the engine
of the van merely to keep warm was rejected by the trial courts. In addition, we
find no support for the argument that defendant's conviction cannot be sustained
absent a finding beyond a reasonable doubt that he actually operated the van
while under the influence of alcohol, or intended to operate the vehicle. See
State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992).
Finally, defendant argues that the State did not prove beyond a reasonable
doubt that he refused to provide a breath sample for chemical testing. He
contends that he did not refuse because he agreed to take the test and attempted
to comply by submitting eleven breaths. "[A] defendant's subjective intent is
A-0876-16T2
11
irrelevant in determining whether the defendant's responses to the officer
constitute a refusal to take the test." State v. Widmaier, 157 N.J. 475, 498
(1999). "[A]nything substantially short of an unconditional, unequivocal assent
to an officer's request that the arrested motorist take the breathalyzer test
constitutes a refusal to do so." Widmaier, 157 N.J. at 497 (quoting State v.
Bernhardt, 245 N.J. Super. 210, 219 (App. Div. 1991) (citations omitted)).
Agreeing to a breathalyzer test, but providing insufficient breath sample s can
rise to the level of refusal. State v. Chun, 194 N.J. 54, 104, 105, 151 (2008).
To be valid, a breath sample must have both a minimum volume of 1.5
liters, and be at least 4.5 seconds long. Id. at 97. "The Alcotest permits up to
eleven attempts to collect two breath samples, after which, the only options that
the device offers are 'terminate' or 'refusal.'" Id. at 99.
Here, defendant blew eleven times, with two control samples. He,
however, never satisfied both the duration and volume requirements in any
single attempt. While defendant achieved the duration requirement all but two
times, he did not provide the requisite volume of breath. He offered no evidence
that he was unable to produce a volume of breath necessary for chemical testing.
We see no basis to disturb the findings of the Municipal Court and the Law
Division that defendant refused to comply with the test.
A-0876-16T2
12
Affirmed.
A-0876-16T2
13