                                NOT FOR PUBLICATION WITHOUT THE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
