                                 NOT FOR PUBLICATION WITHOUT THE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-1939-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSEPH I. MORCOS,

     Defendant-Appellant.
______________________________

                   Submitted February 25, 2019 – Decided June 21, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Passaic County, Municipal Appeal No. 6149.

                   Ameri & Associates, LLC, attorneys for appellant
                   (Dominick Succardi, of counsel and on the brief).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Robert John Wisse, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a trial de novo in the Law Division, defendant Joseph I. Morcos

was convicted of driving while intoxicated (DWI) based upon a per se violation

under N.J.S.A. 39:4-50, due to a .08% blood alcohol concentration (BAC).

Defendant appeals arguing:

            POINT I

            THE TRIAL COURT ERRED BY FINDING THAT
            DEFENDANT OPERATED A VEHICLE BEYOND A
            REASONABLE DOUBT.

            POINT II

            THE TRIAL COURT ERRED BY FINDING
            PROBABLE CAUSE TO ARREST DEFENDANT.

            POINT III

            THE   TRIAL  COURT  ERRED   BY  NOT
            SUPPRESSING THE ALCOTEST WHEN THERE
            WAS NOT A FULL [TWO] MINUTE LOCKOUT
            BETWEEN TESTS.

            POINT IV

            THE TRIAL COURT ERRED BY FINDING
            DEFENDANT GUILTY WHEN IT CANNOT BE
            PROVEN BEYOND A REASONABLE DOUBT
            THAT HIS BLOOD ALCOHOL CONCENTRATION
            LEVEL WAS AT OR ABOVE A .08%, DUE TO THE
            MARGIN OF ERROR AND UNCERTAINTY.




                                                                       A-1939-17T4
                                      2
            POINT V

            THE TRIAL COURT SHOULD HAVE SUPPRESSED
            THE ALCOTEST BECAUSE NO RESULT WAS
            OBTAINED WITHIN A REASONABLE TIME OF
            ACTUAL OPERATION OF A MOTOR VEHICLE.

            POINT VI

            THE TRIAL COURT SHOULD HAVE SUPPRESSED
            THE ALCOTEST BECAUSE THE FOUNDATIONAL
            DOCUMENTS DID NOT LIST THE SERIAL
            NUMBER OF THE TEMPERATURE PROBE
            UTILIZED.

      After reviewing the record in light of the contentions advanced on appeal

and applicable law, we affirm.

                                       I

      We glean the following pertinent facts from defendant's suppression

motion hearing, which included the testimony of North Haledon Sergeant

Anthony Conforti, the parties' DWI experts, and the video and audio recorded

from a motor vehicle recording device (MVR). Defendant sought to suppress

the police stop and the admission of the .08% BAC Alcotest results.

      On January 14, 2017, at approximately 3:55 a.m., Sgt. Conforti and his

partner Officer Hagedorn,1 responded to a radio dispatch of a suspicious vehicle


1
  Officer Hagedorn's first name is not disclosed in the record, and his name is
also spelled in the record as "Hagedoorn."
                                                                        A-1939-17T4
                                       3
parked on Darrow Drive. Upon arriving at the reported location, Sgt. Conforti

saw a parked vehicle with its headlights on and engine running. A North

Haledon municipal ordnance forbids on-street parking in that location between

the hours of 2:00 a.m. to 6:00 a.m.         The officers' entire interaction with

defendant during the incident was recorded on the MVR.

      Observing defendant sleeping in the driver's seat, the officers woke him

up and questioned him about where he had come from. Defendant stated he was

going to his home in Allendale after leaving his brother's birthday party in

Wyckoff, when he became tired, pulled over and parked his car. In actuality,

his brother lived in Wyckoff and the party was in North Haledon, about a half a

mile away from where he parked.

      Defendant reluctantly admitted to drinking one glass of wine at the party

between 9:30 and 10:00 p.m. after Sgt. Conforti questioned him upon detecting

an odor of alcohol on his breath. When asked if he knew where he was,

defendant wrongly stated he was in Allendale. After initially stating he was not

diabetic, defendant later claimed he was diabetic and explained his earlier denial

was due to being confused when he woke-up. After defendant was administered

and failed both the field sobriety tests and the horizontal gaze nystagmus (HGN)




                                                                          A-1939-17T4
                                        4
test, he was arrested and within an hour was given the Alcotest breathalyzer

examination at the police station.

      Sgt. Conforti, a certified Alcotest operator, performed the examination.

At 4:19 a.m., he began the twenty-minute observation period of defendant

without losing sight of him. During that period, defendant did not chew on

anything, did not have anything in his mouth, and did not regurgitate, according

to Sgt. Conforti. At 4:44 a.m., defendant gave his first breath sample. His

second breath test occurred at 4:47 a.m. Both test results of .08% were entered

into the Alcotest calculator.   The State's expert opined: there was nothing

improper about Sgt. Conforti's administration of the Alcotest, the serial number

was not required to be on the foundational documents – Alcohol Influence

Report (AIR), and the serial number was properly recorded during his biannual

calibration of the Alcotest machine.

      Contradicting the State's expert, defendant's expert opined that Sgt.

Conforti failed to properly instruct defendant on how to perform the field

sobriety tests; specifically the walk and turn test, as well as the one leg stand

test. He claimed that the required two-minute interval for between the two

breath tests was not followed. He also testified to the analytical uncertainty of

a .08% reading and the general tolerances in the measurements conducted by the


                                                                         A-1939-17T4
                                       5
Alcotest machine. Thus, he asserted that given the acceptable tolerance levels,

the actual reading could be either higher or lower. The municipal court judge

denied the suppression hearing. A week later, the parties stipulated to a trial

from the testimony provided at the motion hearing. Based on the .08% BAC,

the municipal court judge found defendant guilty of DWI under the per se prong

of N.J.S.A. 39:4-50 and not guilty under the observation prong of N.J.S.A. 39:4-

50.2 Defendant appealed to the Law Division.

      At trial de novo, Judge Ronald B. Sokalski found defendant guilty anew.

He found that probable cause existed to arrest defendant based on the totality of

the circumstances based upon the credibility of Sgt. Conforti's testimony, which

was corroborated by the MVR.

      In his comprehensive oral decision, the judge stated:

                  1) Defendant's car was parked on a street at 3:55
            a.m. . . . with its motor running and headlights
            illuminated.

                  2) Defendant was found sitting in the driver's seat
            asleep.

                 3) Defendant when asked where he was stated
            Allendale where he lives.


2
  The municipal court found that the field sobriety tests were not properly given
and that the HGN test could not be used to establish defendant was guilty of
DWI.
                                                                         A-1939-17T4
                                       6
                  4) Defendant stated that he was coming from his
            brother's birthday in Wyckoff and going home to
            Allendale.

                 5) An odor of an alcoholic beverage detected on
            defendant's breath.

                  6) Defendant's admission to drinking alcohol one
            small glass of wine. And --

                  7) Defendant's poor performance of the field
            sobriety test which clearly shows he was unable to
            maintain his balance.

      Second, the judge found that the State proved that defendant operated his

motor vehicle. The judge reasoned that defendant was found asleep behind the

wheel, engine running and headlights illuminated, with the odor of alcohol on

his breath. The judge determined defendant was driving his vehicle home when

he pulled over and parked in North Haledon, believing that he had actually

driven to Allendale.

      Third, the judge found that the Alcotest was administered within a

reasonable amount of time. In weighing the respective experts' testimony, he

rejected defendant's argument regarding the lack of a full two-minute period

between the second breath test and the second control test In reviewing the AIR,




                                                                        A-1939-17T4
                                       7
the judge found that the testing of the defendant in this case complied with the

procedures set forth in Chun.3

         Fourth, the judge determined the Alcotest results were not invalidated as

a per se violation by the lack of the temperature probe serial number on the AIR.

He reasoned that the temperature probe serial number on the Standard Solution

Form was satisfactory.

         Finally, the judge found no merit in defendant's argument regarding the

analytical uncertainty of defendant's .08% BAC result.        He determined the

State's expert was credible; the foundation documents required under Chun were

all properly submitted into evidence; and the twenty-minute required

observation period was followed. He further found the Alcotest machine was in

working order, the test was properly conducted, and thus the .08% reading was

valid.

         In accordance with N.J.S.A. 39:4-50(a), the judge suspended defendant's

driving privileges for three months and imposed the appropriate fines and

penalties. The judge denied defendant's request to stay the suspension of his

driving privileges; thereby vacating the stay of sentence entered by the

municipal court.


3
    State v. Chun, 194 N.J. 54 (2008).
                                                                          A-1939-17T4
                                         8
                                       II

      We begin with a review of the applicable legal principles that guide our

analysis.   Our assessment of the trial court's factual findings is limited to

whether the conclusions of the Law Division judge "could reasonably have been

reached on sufficient credible evidence present in the record." State v. Johnson,

42 N.J. 146, 162 (1964). Unlike the Law Division, which conducts a trial de

novo on the record, Rule 3:23-8(a), we do not independently assess 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

credibility determinations made by two lower courts absent a very obvious and

exceptional showing of error." Ibid. (citing Midler v. Heinowitz, 10 N.J. 123,

128-29 (1952)). We owe no deference to the trial judge's legal conclusions,

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)

(citing State v. Brown, 118 N.J. 595, 604 (1990)), and exercise plenary review

of the trial court's legal conclusions that flow from established facts, State v.

Handy, 206 N.J. 39, 45 (2011).




                                                                         A-1939-17T4
                                       9
      Review of a trial court's ruling on the admissibility of evidence is "'subject

to limited appellate scrutiny.'" State v. Buckley, 216 N.J. 249, 260 (2013)

(quoting State v. Buda, 195 N.J. 278, 294 (2008)). "We afford considerable

deference to a trial court's findings based on the testimony of witnesses." Ibid.

(citing State v. Elders, 192 N.J. 224, 244 (2007)). We will not reverse a trial

court's evidentiary ruling absent an abuse of discretion. Buda, 195 N.J. at 294-

95.

      A defendant need not be seen driving a vehicle in order to be convicted of

DWI. Driving a vehicle can be proven "by observation of the defendant in or

out of the vehicle under circumstances indicating that the defendant had been

driving while intoxicated[.]" State v. Ebert, 377 N.J. Super. 1, 11, (2005)

(citations omitted).

      To arrest a person for DWI, a police officer must have "reasonable

grounds to believe" the person was driving 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)

(citation omitted). The State need only prove "by a fair preponderance of the

evidence" that defendant was legally intoxicated and operating the vehicle to

establish probable cause to arrest for DWI. Karins v. Atlantic City, 152 N.J.

532, 559 (1998) (citations omitted).


                                                                            A-1939-17T4
                                       10
      Alcotest results have been deemed scientifically reliable and are

admissible to prove a per se violation of DWI. Chun, 194 N.J. at 66. As a pre-

condition for admissibility of Alcotest results, the State must establish by clear

and convincing evidence that: (1) the Alcotest was in working order and had

been "inspected according to procedure"; (2) "the operator was certified"; and

(3) the operator administered the test "according to official procedure." Chun,

194 N.J. at 134; see also State v. Ugrovics, 410 N.J. Super. 482, 489-90 (App.

Div. 2009) (examining the application of Chun with respect to the twenty-

minute waiting period required before collecting another breath sample in

administering the Alcotest).

      The third Chun factor, which defendant challenges, requires the Alcotest

operator to "wait twenty minutes before collecting a sample to avoid

overestimated readings due to residual effects of mouth alcohol[,]" and "observe

the test subject for the required twenty-minute period of time to ensure that no

alcohol has entered the person's mouth while he or she is awaiting the start of

the testing sequence." Chun, 194 N.J. at 79. Once the requisite waiting period

has elapsed, the testing process can begin. Ibid. First, the device automatically

samples room air to check for contaminants; this is commonly known as the

blank air test. Chun, 194 N.J. at 80. If the initial test is valid, the machine


                                                                          A-1939-17T4
                                       11
performs the control test, which measures a standard alcohol solution. Ibid. If

that test is also valid, that is, if the device accurately analyzes the standard

solution, a second blank air test is performed, after which the operator can obtain

a breath sample from a defendant. Ibid. After the defendant provides a sample,

the device performs a third blank air test to purge the defendant's sample from

the device, and then locks out for a two-minute period. Id. at 81. No less than

two minutes thereafter, a second breath sample is taken from the defendant. Id.

at 81.

         Applying the above standards, we are satisfied that Judge Sokalski

thoroughly reviewed the record and properly found there was sufficient credible

evidence of probable cause to arrest defendant and that he was guilty of DWI

based upon a .08% BAC. As the judge noted, the totality of circumstances

demonstrated defendant was driving and he was intoxicated when doing so. His

determination was supported by finding Sgt. Conforti gave credible testimony

that he observed defendant continuously for twenty minutes before conducting

the Alcotest, and that more than two minutes elapsed between the two breath

tests conducted on defendant.




                                                                           A-1939-17T4
                                       12
      To the extent we have not specifically addressed arguments raised by

defendant, they lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                         A-1939-17T4
                                      13
