                        NOT FOR PUBLICATION WITHOUT THE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-4540-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ELIZABETH SILVA,

     Defendant-Appellant.
__________________________________

              Argued October 4, 2017 – Decided October 23, 2017

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Municipal
              Appeal No. 16-005.

              Matthew W. Reisig argued the cause for
              appellant (Reisig Criminal Defense & DWI Law,
              LLC, attorneys; Mr. Reisig, on the brief).

              Ian D. Brater, Assistant Prosecutor, argued
              the cause for respondent (Christopher J.
              Gramiccioni,  Monmouth  County   Prosecutor,
              attorney; Mr. Brater, of counsel and on the
              brief).

PER CURIAM

        Defendant Elizabeth M. Silva appeals from her conviction

after pleading guilty to refusal to submit to a breath test.                       On
appeal, Silva argues that the plea colloquy did not satisfy the

elements   of   the   offense   based   upon   her   testimony,   the   plea

proceeding was improper, and the court erroneously relied upon a

prior plea allocution.      Having carefully reviewed the record and

arguments raised on appeal, we affirm.

     As we write for the parties and their respective counsel,

there is no need to recite the extensive prior procedural history

in detail. Suffice it to state that subsequent to Silva's original

conviction for driving while intoxicated (DWI) and for refusal to

submit to a breath test, after appeal to this court, we reversed

and remanded to the municipal court for trial.            State v. Silva,

No. A-1011-13 (App. Div. March 19, 2015) (slip op. at 15).

     On December 16, 2015, after Silva's motion to recuse the

municipal court judge who presided over her original plea was

denied and then upheld by the Law Division, she appeared before

that judge with counsel and pled guilty to refusal.         The remaining

charges originally lodged against her, including the DWI, were

dismissed on motion of the prosecutor.

     During the plea proceeding, Silva stated that she desired to

plead guilty and was entering her plea knowingly and voluntarily.

Silva also acknowledged that she was satisfied with her attorney's

representation.



                                    2                               A-4540-15T3
    The court commenced the elicitation of the factual basis by

reviewing with Silva the factual basis she provided during her

October 2011 plea of guilty to the refusal, in which she admitted

under oath that she "did not take the breathalyzer test."

    Silva's defense counsel then elicited the following testimony

from her relative to her guilty plea:

         [Q.] Now, Ms. Silva, let me take you back
              to July [30,] 2011. Do you have a
              recollection of that date?

         [A.] Yes.

         [Q.] And you were arrested in the
              driver's seat of a motor vehicle
              [here in] Belmar when police came
              upon, came upon you, is that
              correct?

         [A.] Correct.

         [Q.] And the car was running, is that
              correct?

         [A.] Correct.

         [Q.] And you agree that the officers —
              And you had been at Bar A, correct?

         [A.] Correct.

         [Q.] And you told    the   officers   that,
              correct?

         [A.] Correct.

              [. . . .]




                               3                            A-4540-15T3
[Q.] And the officers had you engage in
     what we call Field Sobriety Testing,
     do you remember that?

[A.] Yes.

[Q.] And do you remember that they also
     had you stand heel to toe, and walk
     heel to toe in a particular way, is
     that correct?

[A.] Correct.

[Q.] And do you agree that based on the
     observations that they made, as they
     put it in their police reports,
     based on the information you gave
     them, that at that time they had
     good reason to arrest you for the
     purpose     of     continuing     an
     investigation as to whether or not
     you were driving while under the
     influence. Do you agree with that?

[A.] Uh huh.

[Q.] You have to say yes or no.

[A.] Yes.

[Q.] Okay. Now, you know we've discussed
     that, but that's what we call the
     factual element of probable cause to
     arrest you for DWI. You understand
     that, correct?

[A.] Correct.

[Q.] And the officers then brought you
     back here to police headquarters, is
     that right?

[A.] Right.



                      4                     A-4540-15T3
[Q.] And an [o]fficer read to you a
     document   called    a    Standard
     Statement. Do you understand?

[A.] Correct.

[Q.] And you and I have gone over that
     Standard Statement, is that right?

[A.] That's right.

     [. . . .]

[Q.] Let me show you that. This is the
     document we've been referring to.
     Is that right?

[A.] That's right.

[Q.] You and I have had a chance to go
     over that and talk about that,
     correct?

[A.] Correct.

[Q.] And you agree that — [n]ow, there's
     two parts to this document. There's
     a top part where it says, "The
     arresting officer must read the
     following to the defendant.     Full
     text    of    Standard     Statement
     follows." Do you see that section?

[A.] Yes.

[Q.] And you agree that the officer,
     whoever it was, read you the
     statements that are printed on the
     top part of what we're going to
     label as J-2.    Do you understand
     that?

[A.] I understand.



                      5                     A-4540-15T3
[Q.] And then there's a place where an
     answer has been inserted. Is that
     correct?

[A.] Correct.

[Q.] And that answer was what?

[A.] That's fine.

[Q.] Those are your words, correct?

[A.] Correct.

[Q.] And then the officer proceeded to
     have you submit breath samples, is
     that correct?

[A.] Correct.

     [. . . .]

[Q.] Now, Ms. Silva, you and I have had
     a chance to review this document
     that we've identified as J-1 many
     times, isn't that right?

[A.] Right.

[Q.] You recognize this as the Alcohol
     Influence Report Form, which is the
     record of the attempts you made to
     submit breath samples, is that
     correct?

[A.] Correct.

[Q.] And as you look at J-1, you made how
     many attempts to submit breath
     samples?

[A.] Seven.

[Q.] And did the instrument accept those
     samples?   And you understand the

                      6                     A-4540-15T3
                    instrument did not accept your
                    breath samples, is that right?

            [A.] Right.

     Following       Silva's   plea   allocution,     the    court   placed   the

results of her attempts to submit breath samples, as indicated in

the Alcohol Influence Report (AIR), on the record.                   The AIR was

admitted into evidence as a joint exhibit.

     The    court    then   permitted    the     municipal   prosecutor,      with

comment but without objection by Silva's counsel, to supplement

her factual basis with testimony from the arresting officer and

testimony from the officer who administered the Alcotest.                      The

arresting officer's testimony was limited to Silva's operation of

the motor vehicle.       The Alcotest officer testified as to Silva's

failed attempts to provide an adequate breath sample.

     At the conclusion of the proceeding, the court accepted

Silva's     guilty    plea,    finding       that   her   plea   was    knowing,

intelligent, and voluntary.           The court also found that the plea

was supported by "more that an adequate factual basis."                       Upon

review of the statutory elements for refusal, the court held that

the elements were satisfied by the testimonial and documentary

evidence.     Silva was then sentenced to the required period of

license suspension, a period of utilization of an interlock device,

and related mandatory penalties.             Credit was provided to Silva for


                                         7                               A-4540-15T3
each aspect of the sentence that she served as a result of her

prior plea and resultant sentence.

     Silva filed an appeal to the Law Division seeking to vacate

her plea raising the same arguments now raised on appeal before

this court.      After conducting a de novo hearing, Judge Anthony

Mellaci    rejected   Silva's   arguments     in   a   comprehensive,   well-

reasoned oral opinion.      The judge, among other findings, held that

there was no error in the plea proceedings and that Silva had

provided    an   adequate   factual   basis    predicated     upon   her   own

allocution.      We agree and add only the following.

     A guilty plea may not be entered by the trial court without

the judge first addressing defendant personally and determining

by inquiry of defendant and others, in the court's discretion,

that there is a factual basis for the plea and that the plea is

made voluntarily, with an understanding of the nature of the

charges and consequences of the plea.          R. 3:9-2; State v. Kovack,

91 N.J. 476, 484 (1982); accord State v. Simon, 161 N.J. 416, 443

(1999); State v. Barboza, 115 N.J. 415, 420-21 (1989); State v.

Howard, 110 N.J. 113, 122 (1988); State v. Sainz, 107 N.J. 283,

292-93 (1987).      The factual basis for a guilty plea must include

defendant's admission of guilt of the crime or the acknowledgment

of facts constituting the essential elements of the crime.              Sainz,

supra, 107 N.J. at 293.         "The need to establish a sufficient

                                      8                               A-4540-15T3
factual basis for a guilty plea is not obviated by the fact that

the plea is part of a negotiated plea agreement."   Ibid.

     Under New Jersey's Implied Consent Law, N.J.S.A. 39:4-50.2,

          [a]ny person who operates a motor vehicle on
          any public road, street or highway or quasi-
          public area 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[.]

Failure of a person to act in accordance with N.J.S.A. 39:4-50.2

can result in prosecution for refusing to submit to a breath test.

State v. Widmaier, 157 N.J. 475, 488-89 (1999).   The purpose [of]

the statute is to encourage motorists suspected of driving under

the influence to submit to breath tests.   Id. at 487 (citing State

v. Wright, 107 N.J. 488, 499 (1987)).

     In State v. Marquez, 202 N.J. 485, 503 (2010), our Supreme

Court, in referencing the statutory factors needed to sustain a

refusal conviction, citing    N.J.S.A. 39:4-50.2(e) and N.J.S.A.

39:4-50.4a(a), held:

          (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.

                                9                           A-4540-15T3
The State must prove these elements beyond a reasonable doubt.

State v. Cummings, 184 N.J. 84, 88 (2005).      Only the third element

is at issue here.

     Following Silva's assent to a breath test, she was required

to provide at least two "valid" breath samples.        State v. Chun,

194 N.J. 54, 81, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172

L. Ed. 2d 41 (2008).   To be "valid," a breath sample must meet the

following four criteria: (1) minimum volume of 1.5 liters; (2)

minimum blowing time of 4.5 seconds; (3) minimum flow rate of 2.5

liters per minute; and (4) that the [infrared] measurement reading

achieves a plateau (i.e., the breath alcohol does not differ by

more than one percent in .025 seconds).       Id. at 97.

     Here, Silva admitted that she gave seven breath samples yet

was unable to provide the requisite two valid samples.             That

admission alone constituted an adequate basis that she refused to

take the test in satisfaction of Rule 7:6-2(a)(1).

     Silva's   remaining   arguments,   not   specifically   addressed

herein, lack sufficient merit to warrant discussion in a written

opinion.   R. 2:11-3(e)(2).

     Affirmed.




                                 10                            A-4540-15T3
