Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Wednesday, December 29, 2010

STATE v. LEE A-1246-09T2

STATE v. LEE A-1246-09T2 12-17-10

To charge the act of masturbation in view of an adult as fourth-degree criminal sexual contact under N.J.S.A. 2C:14-3b and 2C:14-2c(1), rather than disorderly persons lewdness under N.J.S.A. 2C:14-4, the State must have evidence that the actor used physical force or coercion. Defendant's touching himself does not satisfy that element of the offense. The holding of State in the Interest of M.T.S., 129 N.J. 422 (1992) — that physical force is equivalent to the act of sexual contact or penetration without affirmative and freely-given consent of the victim — applies to invasion of the bodily integrity of the victim.



If an applicant for subdivision or site plan approval fails to apply for and obtain a necessary bulk variance, the land use approval may be challenged on that ground. However, if no party brings a timely challenge to the land use approval on that ground, a new site approval for a renovation of the premises, which does not increase or affect the existing nonconformity with the zoning ordinance, is not subject to attack on the ground that original land use approval did not include a necessary bulk variance.


STATE V. REEVEY A-5316-08T4 12-13-10

We affirm the denial of post-conviction relief based on alleged ineffective assistance of counsel, who failed to secure defendant's presence in the courtroom during an allegedly critical stage of the proceedings. During a break in jury selection when defendant was not in the courtroom, the judge conducted a hearing to determine whether a material witness intended to appear and testify. The witness, who was in the courtroom, was placed on the witness stand and examined with respect to his intention to comply with the subpoena allegedly issued to him. Although denying receipt of a subpoena, the witness indicated he would appear and testify if a subpoena were served upon him. The judge then briefly questioned the witness respecting the statement he gave to the police and concluded from the witness's answers that a hearing pursuant to State v. Gross, 121 N.J. 1 (1990), was required and would be conducted in defendant's presence. Defendant was brought into the courtroom, and the Gross hearing was then conducted.

In his PCR petition, defendant raised multiple issues, which the PCR judge determined adversely to defendant. On appeal, defendant raised only the issue of his absence from the material-witness hearing, which he characterized as "a critical stage of the proceedings." Because this was an issue that could have been raised on direct appeal, we considered whether enforcement of the Rule 3:22-4 bar to preclude this claim would result in fundamental injustice. R. 3:22-4(a)(2).We found that the witness's testimony outside defendant's presence concerned only his obligation to testify at trial and whether he recalled the content of the statement he had given to the police. We noted that defendant was present for the Gross hearing and his counsel had an opportunity to cross-examine the witness at that time, including the very issues raised outside of defendant's presence. As a consequence, we found that there was neither an injustice nor a substantial denial of defendant's rights because his absence did not affect the fairness of the proceeding.



Defendant was convicted of second-degree conspiracy to commit robbery and second-degree robbery. He is African- American and the victim is Caucasian. Defense counsel requested a cross-racial identification charge which the judge refused to give, concluding, in part, that the victim, who had worked indowntown Newark for several years, had "substantial connections" to African-Americans and people of other races.

We reversed. First, we concluded that a cross-racial identification charge should have been given because identification was the critical issue in the case and there was no independent corroboration of the victim's identification. Second, although it presented a close question, we concluded that the error was harmful under the facts presented and in light of the recent Special Master's Report in State v. Henderson, A-08, that discusses recent scientific analyses of the reliability of identification testimony and jurors' misconceptions in that regard.



The trial court held that, because defendant waived his right to testify at his trial for unlawful possession of a weapon, N.J.S.A. 2C:39-5b, he was precluded from testifying at the immediately-following trial for possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7b. Acknowledging that the proceedings were two separate trials and not phases of the same trial, we held that defendant's waiver of the right to testify in the first trial did not operate to waive his right to testify in the second trial.

State v Maricic ___ NJ Super. __ (App. Div. 2010) A-5247-08T

State v Maricic ___ NJ Super. __ (App. Div. 2010) A-5247-08T4 8/31/2010

In this DWI matter, the Court held that defendant has the right to discover downloaded Alcotest results from the subject instrument from the date of last calibration to the date of defendant's breath test and any repair logs or written documentation relating to repairs of the subject Alcotest machine, without a showing of prior knowledge of flawed procedures or equipment. Although the requested items were not included in either Special Master King's list of fundamental documents that must be produced by the prosecutor in discovery or the list adopted by the Court in State v. Chun, 194 N.J. 54, 145, cert. denied 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), they are nonetheless of unquestionable relevance to a determination of the reliability of the Alcotest machine and procedures utilized.

Monday, December 27, 2010



The Public Defenders provide Indigent individuals charged with criminal or serious motor vehicle charges with free or limited cost legal defense. The Public Defender of Metuchen welcomes persons to serve as volunteer interns. Volunteer Law Clerk interns will attend Wednesday evening and every other Friday morning court sessions.

Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given projects to provide information to the public on updated criminal laws and statutes. Help people less fortunate than you who are down on their luck. This is an unpaid internship helping indigent persons.

Court times: WEDNESDAY 1pm PM [approx]- 8:30 PM, every other Friday 9-12, plus hearing preparation work.

Volunteer Internship Description:

-Interview Clients facing charges in Municipal Court including Drug Possession, Drunk Driving, Assault, Driving While Suspended and other criminal and traffic offenses

-Make demands for Discovery on Prosecutor and review police reports

-Attend hearings and learn from experienced trial attorneys

-Prepare Motions to Suppress Evidence and Motions to Compel Discovery

-Conduct appropriate Legal research

-Acquire skills in Criminal Law and Procedure by active participation

-Participate in Public Relations activities and help organize seminars

- Update Lists of Prosecutors, Judges and Attorneys for publication of

NJ Municipal Court Law Review

- Revise criminal and traffic law Articles and submit to Law Journals and criminal law websites.

- Learn how to add criminal statutes and criminal articles to legal blogs and websites.

Program lasts 12 weeks. Minimum time commitment September- May is 10 hours per week. Must be over 18 years old and have a car. You can work more hours if you want and more than 12 weeks.

For Summer- College graduates and Law students only. Minimum Volunteer time commitment in summer- 18 hours per week. Send cover letter and resume. After sending resume, call to schedule interview

We are committed to excellence and service to clients and the community. Applicants must have attention to detail. We attempt to give assignments which will be meaningful and memorable but, nevertheless, expect that the volunteers will pitch in on whatever needs to be done.

Interested persons must mail or fax a cover letter indicating the internship they are applying for and resume. If no personal cover letter by student, the resume will not be considered.


Att: Kenneth Vercammen, Esq.

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

Monday, December 06, 2010


STATE OF NEW JERSEY v. DONALD R. HAND A-3901-09T3 11-29-10

In this appeal by the State, we determine whether a guilty plea to fourth-degree creating a risk of widespread injury or death, N.J.S.A. 2C:17-2(c), precluded defendant's subsequent prosecution for driving under the influence (DWI), N.J.S.A. 39:4-50. The municipal court judge denied defendant's motion to dismiss the DWI and reckless driving charges on double jeopardy grounds. On appeal de novo to the Law Division, Judge Kryan Connor, citing the "same evidence" test, found defendant's prosecution for DWI and reckless driving was barred. He vacated the guilty pleas and dismissed the charges.

We affirmed, rejecting the State's argument that the "same evidence" test set forth in State v. De Luca, 108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987), should not apply to guilty pleas but should instead apply to the actual evidence to be presented at trial. Because defendant's operation of his motor vehicle under the influence of alcohol was the reckless act upon which the indictment was based and also because the State required defendant, as part of his plea to the indictment, to admit that he operated his motor vehicle under the influence of alcohol, his subsequent prosecution for DWI was barred on double jeopardy grounds.

Wednesday, November 17, 2010



A-6199-08T4 11-09-10

In this case, we decide that a motorist who has been

charged with speeding is entitled to discovery respecting (1)

the speed-measuring device's make, model, and description; (2)

the history of the officer's training on that speed-measuring

device, where he was trained, and who trained him; (3) the

training manuals for the speed-measuring device and its

operating manuals; (4) the State's training manuals and

operating manuals for the speed-measuring device; (5) the

officer's log book of tickets written on the day of defendant's

alleged violation; (6) the repair history of the speed-measuring

device used to determine defendant's speed for the past twelve

months; and (7) any engineering and speed studies used to set

the speed limit at the section of highway where defendant's

speed was measured. We also found that the Stalker Lidar speedmeasuring

device had not been proven to be scientifically

reliable and, as such, the results of its operation should not

have been admitted during the municipal court proceedings or

considered by the Law Division. We remanded the matter to the

Law Division for a plenary hearing on the scientific reliability

of the Stalker Lidar. If it is determined to be reliable, then

the matter is remanded to the municipal court for trial after

the State has provided all of the discovery required by this


Thursday, November 04, 2010

Municipal Court College Seminar December 6, 2010

Municipal Court College Seminar

December 6, 2010 Monday

5:30 PM to 9:00 PM

New Jersey Law Center, New Brunswick

A guide to handling municipal court matters in your practice.

This information-packed program is designed for attorneys who do not concentrate in municipal court law, including general practitioners seeking to expand into this practice area & not, novice attorneys looking to create a niche practice. Seasoned municipal court lawyers are certainly more than welcome to join us and brush up on their skills.

You’ll “go back to school” to attend 6 half hour segments and panel discussions that will provide you with a working knowledge of municipal court law basics. You’ll quickly be able to represent clients in a wide range of matters you would normally have had to refer to others. Gain confidence in your ability to handle municipal court law matters. Make an investment in your legal career and register today!

Gain insight and information that will help you represent clients in every aspect of municipal court law, including:
• Initial interview getting retained and dealing with the prosecutor
• Driving while suspended
• Drug cases and DRE
• Assault and miscellaneous
• DWI - Blood
• DWI – Alcotest


Past Chair, NJSBA Municipal Court Section

Past GP Solo Section Attorney of the Year

2006 NJSBA Municipal Court Practitioner of the Year

K. Vercammen & Associates (Edison)


Wilentz Goldman & Spitzer, PA (Woodbridge)


Law Offices of John Menzel (Point Pleasant)


Chief Prosecutor (Elizabeth)

Assistant Prosecutor (Woodbridge)

Murgado & Carroll, Esq. (Elizabeth)


Law Offices of Stephen D. Williams (Flemington)

Who should attend:
• Judges & Prosecutors
• General practitioners
• Criminal law practitioners
• Municipal Court law practitioners
• Litigators
• New attorneys
• Members of law enforcement

New Jersey Institute for Continuing Legal Education 
The non-profit continuing education service of: 
The New Jersey State Bar Association Rutgers - The State University of New Jerseys Seton Hall University 
One Constitution Square, New Brunswick, New Jersey 08901-1520 
Phone: (732)214-8500 • Fax: (732)249-0383 •

NJ CLE INFORMATION: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 3.5 hours of total CLE credit. Of these, 3.5 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers’ compensation law and/or matrimonial law.

Includes seminar, 400 page book, CD with over 1,000 pages of forms, dinner, coffee, desert Tuition ranges between $145- $189 depending on NJSBA membership Call Phone: (732)214-8500 Seminar # S962-21594

Tuition fees

Reg. Fee

General Tuition (REG)


NJICLE Season Tickets (STX)

1 Season Ticket(s)





Recent admittees (past 2 years) (YL)


Paralegals (PAR)


Law Students (with Student ID) (STU)


Full Time Judges (JUD)


This program has been approved for 3.5 credits (50 minute hour)


Advance registration closes at noon of the day preceding the program. After that time you may still register, space permitting, for the Door Registration Fee.



Up to 12 of your 24 New Jersey MCLE credits can be earned via Audio CDs, Webinars & MP3s.

Order your audio package and earn New Jersey MCLE credits at your convenience.



2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030


Tuesday, November 02, 2010



We held it was error for the trial court to permit the State to withdraw from a plea bargain, over defendant's objection, where the State had not specifically conditioned its acceptance of defendant's plea agreement on the co-defendants also accepting a plea bargain.

Saturday, October 30, 2010

In the Matter of the Expungement Petition of D.H. (A-82-09)

In the Matter of the Expungement Petition of D.H. (A-82-09)

In the context of an expungement application and in order to give full expression to the Legislature’s will, a mandatory order of permanent forfeiture of public employment must be severed from – and preserved from the expungement of – the conviction that originally triggered the order of forfeiture.

State v. Brian M. Yohnnson (A-37-09)

State v. Brian M. Yohnnson (A-37-09)

State v. O’Neill does not apply in this case, where police did not use a “question-first, warn-later” approach and defendant said nothing relevant to the crimes being investigated before receiving proper warnings. Under the familiar totality of the circumstances test, defendant’s waiver of his rights was knowing, voluntary, and intelligent.

Wednesday, October 06, 2010

STATE v. ENRIGHT A-4630-08T4

State v Enright __ NJ Super. ___ (App. Div 2010)

A-4630-08T4 10-04-10

After defendant's conviction and sentence in the municipal court as a third-time DWI offender, he obtained a post-conviction order from a different municipal court in which his second DWI conviction had occurred confirming that conviction but directing that no court could use it to enhance his sentence on a subsequent DWI conviction. The Court held that the municipal court order was an erroneous application of State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), and that on de novo review of the third DWI conviction, the Law Division correctly declined to follow the municipal court's order.

Monday, October 04, 2010

Bass v. New Jersey Motor Vehicle Commission, DOCKET NO. A-1464-09T

Bass v. New Jersey Motor Vehicle Commission, DOCKET NO. A-1464-09T App. Div. Plaintiff appeals from a final decision of the New Jersey Motor Vehicle Commission, which indefinitely suspended his passenger-carrying endorsement on his commercial driver's license (CDL), based on his disqualifying criminal record. On appeal, defendant claims that he did not receive a fair hearing, and that the Commission abused its discretion when it suspended his passenger endorsement. The appellate panel finds no evidence in the record to support defendant's arguments that "his civil and constitutional rights" have been violated and that the ALJ's decision "was only a pretext for unlawful discrimination in violation of the anti-discrimination laws." The Commission's decision is authorized by statute, and by regulation; moreover, the decision is supported by substantial credible evidence and is neither unfair nor unreasonable. unpublished Source: Daily Briefing - 10/04/2010. Ken Vercammen is a contributing writer for New Jersey Law Journal. Subscribe to the New Jersey Law Journal's Daily Decision Alert for daily synopses of all important state AND federal opinions, published and unpublished. The smart read for the busy lawyer. Click here for details.


Gregory Bass (Bass) appeals from a final decision of the New Jersey Motor Vehicle Commission (Commission), which indefinitely suspended his passenger-carrying endorsement (passenger endorsement) on his commercial driver's license (CDL). On appeal, defendant claims that he did not receive a fair hearing, and that the Commission abused its discretion when it suspended his passenger endorsement. After reviewing the record, the briefs, and the applicable law, we affirm.

On September 3, 2008, the Commission sent a "scheduled suspension notice" to Bass advising him that his New Jersey passenger endorsement was scheduled to be suspended on October 3, 2008, because he had a disqualifying criminal record. Pursuant to N.J.A.C. 13:21-14.5(a), every driver of a bus must "be of good character." The Commission is authorized to "revoke or suspend the bus driver license of any person arrested for, charged with, or indicted for any crime or other offense" if the Commission determines the bus driver "is of bad character or is morally unfit . . . or is a potential danger to his or her passengers or to other motorists or to himself or herself." N.J.A.C. 13:21-14.5(c)(13). The same regulation provides that a bus driver has a disqualifying criminal record if:

He or she has been convicted of . . . any of the following:

(1) An offense involving the manufacture, transportation, possession, sale or habitual use of a "controlled dangerous substance" as defined in the "New Jersey Controlled Substance Act";

. . . .

(3) A crime or other offense involving the use of force or the threat of force to or upon a person or property, such as armed robbery, assault and arson;

(4) Any crime or other offense indicative of bad moral character;

(5) He or she fails to notify the Motor Vehicle Commission that he or she has been arrested for, charged with, indicted for, convicted of, or forfeited bond or collateral upon any crime or other offense within 14 days after the date of such event.

[N.J.A.C. 13:21-14.5(c)(12).]

The suspension notice stated Bass could either accept the suspension or request a hearing. On September 16, 2008, Bass requested a hearing, which took place before an Administrative Law Judge (ALJ) on May 19, 2009. We have not been provided with a transcript of the administrative hearing, but the ALJ's written decision included the following:

From June 14, 1985 through September 21, 1992, [Bass] was convicted of weapons possession twice, burglary twice, and cocaine possession, all of which constituted felonies.

[Bass] was arrested for assault in 1995, 1999, 2003, and 2006. One such charge was dismissed.

At the OAL hearing [Bass] claimed that the most recent assault charge arose out of an episode of domestic violence. He testified that the victim was a corrections officer whom he had been dating. She allegedly filed charges claiming that he threatened her but that the arrest was dismissed as she failed to appear at the court hearing. Also, the dispute arose out of her dating another officer who was suspended.

[Bass] has worked for a company known as Whole Foods. He submitted a letter of recommendation from the company. In addition, [Bass] submitted a "To Whom It May Concern" letter dated April 23, 2009, from his current employer Lifestar Response of New Jersey stating that he has a full-time job with the company as a mobility assistance vehicle technician. At the OAL hearing, he testified that he drives a fifteen passenger vehicle for senior citizens.

. . . .

The crimes for which [Bass] was arrested and/or convicted involve moral turpitude. [Bass] has a history of violence which could make him a danger to bus passengers or other members of the public. [Bass] presented himself as the victim of what might be characterized as an evil woman. However, his explanations are no justification for repeated acts of violence. Also, [Bass] presented no evidence of rehabilitation which could belie the Commission's concerns.

[Citations to Exhibits omitted.]

Based on these findings and conclusions, the ALJ indefinitely suspended the passenger endorsement on Bass's CDL. That decision was affirmed by the Commission on August 20, 2009, but the Commission stayed the suspension pending resolution of this appeal.

Defendant argues on appeal that "his civil and constitutional rights" have been violated and that the ALJ's decision "was only a pretext for unlawful discrimination in violation of the anti-discrimination laws." However, there is no evidence in the record before us to support those claims.

Our scope of review of an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). "[A]n appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

In the present matter, the Commission's decision is authorized by statute, N.J.S.A. 39:3-10.1, and by regulation, N.J.A.C. 13:21-14.5(a) and (c). Moreover, the decision is supported by substantial credible evidence and is neither unfair nor unreasonable.


Wednesday, September 29, 2010

State v. Tirado - exclusion of readings where standard statement not read

STATE OF NEW JERSEY, Plaintiff-Respondent, v.







Argued August 31, 2010 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Municipal Appeal No. 003-06-09.



Defendant, Clement Tirado, appeals his second conviction

for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, for which he was sentenced to a two-year license revocation, required to spend forty-eight hours at an Intoxicated Driver Resource Center (IDRC) program, and required to perform thirty days of community service. Appropriate fines and penalties were also imposed.

On appeal, defendant raises the following arguments:



a. Officer Quintano lacked a reasonable and articulable suspicion to stop Mr. Tirado.

b. Officer Quintano lacked probable cause to arrest Mr. Tirado.

c. The field sobriety tests were incorrectly administered and, therefore, are unreliable.






A municipal court trial was held in this matter, at which Dumont Police Officer Steven Quintano and Sergeant Vincent Tamburro testified. Quintano was the arresting officer. He testified that on February 14, 2008 at 2:00 a.m., while on road patrol, he was stopped at a red light at the intersection of Prospect and Madison Avenues in Dumont behind a Volkswagen. After deciding to run the car's license plate on his mobile data terminal, Quintano learned that the registered owner of the car was an unlicensed driver. Shortly thereafter, the driver made a right turn onto Madison Avenue, nearly striking the curb in doing so. Quintano decided to make a stop and activated his lights. After proceeding for approximately three blocks, the driver slowly pulled over to the curb.

When approached, the driver, who was observed not to be wearing a seat belt,

admitted that his license was expired. Quintano testified that, while speaking to the driver, he noticed a strong of alcohol on his breath, and that his eyes were red. When asked whether he had been drinking, the driver admitted that he had been drinking beer and Jameson and asked whether he had been observed leaving the Corner Inn.

At that point, Quintano commenced administering field sobriety tests. He testified that he first asked the driver to recite the alphabet without singing it. The driver was unsuccessful, first singing, then slurring over the letters M and N, and completing the alphabet with T, U, V, H, I, J, and K. Quintano then administered a counting test, requesting that the driver count backwards from sixty-seven to fifty-two. The driver did so with difficulty, and his speech was slurred, slow, and somewhat incoherent. Quintano then asked the driver to exit the car, but he needed to use the driver's side door as support in doing so. After finding a level, non-icy area and asking whether the driver had any problems with his legs, Quintano instructed the driver to perform a one-leg stand for thirty seconds. However, the driver had difficulty keeping his balance. He frequently raised his arms to achieve balance, and he dropped his foot numerous times. He similarly failed a heel-to-toe, walk and turn test. At this point the driver, Tirado, was placed under arrest and issued summons for DWI, careless driving, failure to wear a seat belt, and driving with an expired license.

Quintano testified that, following defendant's arrest, he was taken to police headquarters and read his Miranda

rights. Defendant refused to sign the Miranda waiver form proffered to him, stating that he felt "like [he] was being raped." Quintano described defendant's demeanor as "continuously changing between cooperative, uncooperative," and he stated that defendant "had some fits of crying."

At that point, defendant was turned over to Sgt. Tamburro who administered a breathalyzer test. Both Officer Quintano and Sgt. Tamburro testified that the New Jersey Motor Vehicle Commission Standard Statement for Operators of Motor Vehicles (standard statement) was read to defendant before the breathalyzer test was administered. However, both denied reading the statement to defendant while testifying that the other did so and was heard doing so. That statement, when produced in court, did not contain information identifying defendant as the person to whom the statement was read, a case number, or either officer's signature. It did, however, list a response of "yeah, yeah" to the first statement on the form. Two breathalyzer readings disclosed defendant's blood alcohol content to be 0.19.

Thereafter, Tamburro again administered Miranda warnings to defendant, and he again refused to sign the Miranda waiver form. Defendant was then asked the questions set forth on Dumont's Drinking/Driving Report Question/Answer Form, responding that he was drinking beer and shots, that he had consumed three pints and "a few 4 shots," and that he had been at Charlie Brown's and the Corner Inn. However when asked the time between each drink, defendant stated that he felt "uncomfortable," and he refused to answer additional questions. Following objections to the admissibility of defendant's statements in response to the form's questions, the prosecutor withdrew his questions regarding the form, and he did not seek to introduce it into evidence.

At the conclusion of the trial, the municipal court judge found that "probable cause" existed for the stop of defendant's vehicle as the result of evidence that his license was expired and that he nearly hit the curb when making a right turn. The judge found defendant not guilty of the seatbelt offense, but found him guilty of driving without a license, careless driving, and DWI, based both on the subjective field sobriety tests and Quintano's observations and also on the breathalyzer test results. A two-year loss of license was imposed, along with forty-eight hours of IDRC instruction, thirty days of community service, two days of jail time, and appropriate fines and penalties.

The matter was appealed, and at that time, a stay of the license suspension was granted. Upon de novo review, a Law Division judge found defendant guilty of DWI on the basis of both the subjective tests and breathalyzer results and guilty of careless driving as the result of his "erratic" turn. She merged the conviction for careless driving with the DWI conviction for purposes of sentencing. The judge found defendant not guilty of driving without a license. In sentencing, the judge declined to order jail time, but otherwise imposed the same sentence that was imposed by the municipal court judge. This appeal followed.


On appeal, defendant argues that Officer Quintano lacked a reasonable and articulable suspicion that a crime or other offense had been committed when he stopped defendant's vehicle. In support of his argument, defendant relies upon the finding of the Law Division judge that he was not guilty of driving without a license. Defendant argues additionally that there is no support in the record for the Law Division judge's conclusion that his driving was erratic.

We reject defendant's position, determining that Quintano's random use of his mobile data terminal to determine the status of the Volkswagen's registration and its owner's license was permissible, State v. Donis, 157 N.J. 44, 55 (1998), and because the information thus obtained suggested a violation of the law, Quintano had a sufficient basis to stop the car for further investigation. Id. at 56. See also Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979) (permitting stop upon articulable and reasonable suspicion that the motorist is unlicensed); State v. Pitcher, 379 N.J. Super. 308, 314-15 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); State v. Lewis, 288 N.J. Super. 160, 164 (App. Div. 1996); State v. Parks, 288 N.J. Super. 407, 410-11 (App. Div. 1996). Any challenge to the reliability of the information obtained from the mobile data terminal must fail as the result of defendant's admission that his license was suspended.

Defendant next asserts that Quintano lacked probable cause for his arrest, arguing that because he was not stuporous, did not fall, was not involved in an accident, was not observed to have dilated pupils, was not incoherent, did not use abusive language, and was not vomiting, a basis for his arrest was lacking. However, such indicia, although probative, are not required. "It is not requisite that '* * * the accused be absolutely "drunk," in the sense of being sodden with alcohol'" State v. Johnson, 42 N.J. 146, 164 (1964) (quoting State v. Emery, 27 N.J. 348, 355 (1958)), but merely that he be shown to have "'imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.'" Id. at 165 (quoting Emery, supra,, 27 N.J. at 355.)

We find that evidence of defendant's admission that he had been drinking beer and shots, his inability to perform field sobriety tests, his difficulties in speaking clearly, and his alcohol-laden breath, adequately established probable cause in this case. "Probable cause for a search or arrest exists where a police officer has a well-founded suspicion or belief of guilt." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (citing State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985)). "That suspicion or belief may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion." Ibid. (citing Wanczyk, supra, 201 N.J. Super. at 266). "Probable cause to arrest or search an individual generally is defined as a well grounded suspicion or belief on the part of the searching or arresting officer that a crime [or offense] has been or is being committed." State v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989).

"'[T]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer "had reasonable grounds to believe" that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50].'" Moskal, supra, 246 N.J. Super. at 21 (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). Officer Quintano's observations of defendant's appearance, speech and field tests, together with defendant's admission that he had been drinking meet this standard. State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001). See also State v. Bealor, 187 N.J. 574, 588-89 (2006) (citing with approval decision in which DWI convictions were premised on field sobriety tests); State v. Nece, 206 N.J. Super. 118, 128 (Law Div. 1985) (holding that: "Our courts have long accepted the results of field sobriety tests as reliable evidence of intoxication.").

Moreover, we reject defendant's argument that the field tests were improperly administered because Quintano did not ascertain whether defendant suffered from any underlying condition that would impair his ability to perform the tests and because he did not state (and was not asked) the criteria that he used to judge success or failure. We note that both the alphabet and numbers tests were administered to defendant while he remained in the car, and for that reason, the existence of any underlying physical impairment would not have been relevant to his performance. Further, Quintano testified that, once defendant had alighted, with difficulty, from the car, he was asked if he had any problem with his legs. The fact that Quintano could not remember a negative reply, together with the continuation of testing, raises the inference that defendant's response was negative. And finally, our review of Quintano's testimony detailing the nature of defendant's difficulties in completing the field sobriety tests administered to him satisfies us that a solid evidential basis existed for Quintano's conclusion that the tests were failed.


Defendant next argues that the trial court erred in determining that defendant's Miranda rights were not violated when the police continued to question him after he had invoked his right to silence. At issue is the admissibility of defendant's partial responses to the questions set forth on the Dumont Police Department's Drinking/Driving Report Question/ Answer Form, given immediately after defendant refused to sign a Miranda waiver form.

We decline to address this point, noting that, in the municipal court trial, the prosecutor withdrew all testimony relating to that form when confronted with objections based on Miranda, and he did not introduce the document into evidence. As a consequence, the admissions and documentary evidence did not constitute a part of the municipal court record. We recognize that, when similarly confronted with defense counsel's challenge to the admissibility of defendant's statements as set forth on the Drinking/Driving Form, the Law Division judge found the statements admissible and read them into the record. However, the judge does not appear to have relied on those statements in determining that defendant was guilty of driving while intoxicated. Further, even if the statements were improperly admitted, we find that the evidence was sufficient to sustain defendant's DWI conviction in their absence.


As a final matter, defendant challenges his per se conviction for driving while intoxicated, premised on the results of the two breathalyzer tests, asserting that the evidence was insufficient to demonstrate beyond a reasonable doubt that the standard statement was read to him or that he was made aware of his right to independent testing.

We have held:

The Legislature has required that police officers read to all defendants arrested for DWI a standard statement, prepared by the Director of the Division of Motor Vehicles, before endeavoring to administer a breathalyzer test. N.J.S.A. 39:4-50.2(e); State v. Widmaier, 157 N.J. 475, 489 (1999). "By doing so, the Legislature has provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." Id. at 489.

[State v. Spell, 395 N.J. Super. 337, 344 (App. Div. 2007), aff'd in part and mod. in part on other grounds, 196 N.J. 537 (2008).]

In this case, the Law Division judge stated that she was unable to determine what officer read the standard statement to defendant, but she was "convinced" that it had been read. Our review of the record does not leave us similarly convinced, State v. Locurto 157 N.J. 463, 470-71 (1999), since neither Quintano nor Tamburro acknowledged having read the statement to defendant, and the statement itself does not clearly manifest the fact that it was in fact read or to whom it might have been read. Moreover, the officers' testimony does not establish that the appropriate statement was read, that the alleged reading conformed to the statement, or defendant's responses other than the alleged "yeah, yeah." In our view, such meager and equivocal evidence does not establish the requisite fact of an accurate reading of the proper statement beyond a reasonable doubt. As a consequence, we reverse defendant's per se conviction for DWI, but affirm his DWI conviction based on subjective evidence including the field sobriety tests.

Affirmed in part and reversed in part.

Defendant committed his first offense on April 29, 2002.

Quintano testified on cross-examination that he did not know whether the seatbelt had been removed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).