                     NOT FOR PUBLICATION WITHOUT THE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-0095-15T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

DAVIS SANTIAGO,

     Defendant-Appellant.
____________________________________

            Argued September 20, 2017 – Decided July 12, 2018

            Before Judges Fuentes, Koblitz, and Suter.

            On appeal from Superior Court of New Jersey,
            Law Division, Bergen County, Municipal Appeal
            Nos. 009-07-15 and 009-06-15.

            Carmine R. Alampi argued the cause for
            appellant (Alampi & De Marrais, attorneys;
            Carmine R. Alampi, on the brief).

            Annmarie Cozzi, Senior Assistant Prosecutor,
            argued the cause for respondent (Gurbir S.
            Grewal, Bergen County Prosecutor, attorney;
            Annmarie Cozzi, of counsel and on the brief).

PER CURIAM

     Defendant Davis Santiago appeals from his July 17, 2015

convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-

50, which were his second and third convictions under that statute.
He was convicted following de novo review in the Law Division of

two municipal court appeals.     Defendant claims that it was error

to preclude him in both cases from calling an expert witness to

testify about his "pre-existing physical impediments" and, in one

of the cases, to admit the results from the Alcotest.        He also

appeals from the July 24, 2015 order that denied reconsideration

of his request to stay the imposed fines and penalties.1    We affirm

both convictions.

                                I.

     On August 30, 2013, defendant was charged with DWI, following

a motor vehicle stop in Montvale.       The police stopped him again

on September 13, 2013, in Park Ridge and arrested him on a new DWI

charge.

     The Montvale case was tried on October 23, 2014, in municipal

court.     Defendant was convicted of DWI based on the Alcotest

results that showed a .15 percent blood alcohol concentration

(BAC).    This was his second offense for driving while intoxicated.

     The Park Ridge case was tried on November 20, 2014, before

the same municipal court judge.      Defendant again was convicted of




1
  Because this issue was not raised in his merits brief, it is
deemed waived. Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014).

                                  2                           A-0095-15T4
DWI.   This was his third conviction.   The conviction was based on

observation evidence, not on the result of the Alcotest.

       Defendant appealed both cases to the Law Division.   Following

de novo review, a Superior Court judge found defendant guilty of

DWI in both cases.     In the Montvale case, the judge found a per

se violation of N.J.S.A. 39:4-50, based on the Alcotest and also

convicted defendant based on observation evidence.     Because this

was his second violation, his driver's license was suspended for

two years, he was required to attend the Intoxicated Drivers

Resource Center (IDRC) for two days, install an interlock device

for a year, and pay fines, penalties and costs.

        In the Park Ridge case, the judge held there was probable

cause for the motor vehicle stop.       The court based defendant's

conviction on observation evidence, and not on the Alcotest.       The

court denied defendant's request, in both cases, to have Dr. Paul

Greenberg, a podiatrist, testify about defendant's feet, knee and

back, finding his 2014 report was not relevant because it did not

address whether defendant's physical conditions in 2013, affected

his ability to perform the roadside sobriety tests.

       In the Park Ridge case, defendant was sentenced to 180 days

in jail, ninety days of which could be served at a treatment

center.    His driver's license was suspended for ten years, an


                                  3                           A-0095-15T4
interlock device was required and he was ordered to pay fines,

penalties and costs.    He was sentenced to twelve hours at IDRC.

He was to perform thirty days of community service.    This sentence

was to be served consecutive to the Montvale sentence.

                                 A.

                         The Montvale Case

       On August 30, 2013, at about 1:18 a.m., Montvale Police

Sergeant Douglas McDowell was on patrol when he saw a car cross

over the double centerline as it approached him, causing McDowell

to steer to the right to avoid the car.      He turned to follow the

car.   The driver went right at an intersection, turning so widely

that the vehicle entered into the adjacent left hand turn lane.

The driver then over-corrected going "really close to the curb

line."     The driver pulled into a bar/restaurant where McDowell

stopped him and asked for identification.    McDowell described that

defendant "was fumbling the documents."        He "passed over his

driver's license . . . several times before he got it."           His

"speech was slow and slurred, . . . his eyes were bloodshot and

watery."    McDowell smelled alcohol on his breath.   McDowell asked

defendant to step out of his vehicle.    He was "very . . . wobbly,

unsteady."    He held onto the door and side of the car.      He was

"swaying" and "lost his balance."


                                  4                          A-0095-15T4
      McDowell asked defendant to perform the "walk-and-turn" and

the "one-leg stance" tests.     On the first test, he did not take

the proper number of steps; he did not count out loud as he had

been instructed; he had his arms out for balance, stepped backwards

and did not walk in a straight line, failing the test.        For the

one leg-standing test, defendant miscounted and put his foot on

the ground, failing that test.    McDowell concluded that defendant

was intoxicated.     Once at the station, McDowell described that

defendant's "eyes were bloodshot, watery, his speech was slow and

slurred."

     Montvale     Patrolman   Jeffrey   Hanna   also   observed   that

defendant's eyes were watery and bloodshot.      He detected the odor

of alcohol from defendant.     He believed based on his observations

and experience that defendant was intoxicated.

      On the Drinking Driving Questionnaire, defendant answered

that he was not injured or under the care of a doctor.    He admitted

having three to four beers between 10:30 p.m. to midnight with a

meal at 10 p.m.    He did not say anything about physical problems.

     The Alcotest machine at the Montvale department did not work

properly.   Defendant was taken to Park Ridge Police Department for

the test.     Hanna observed defendant for twenty minutes, and

commenced testing at 3:18 a.m.     The first test was taken at 3:46


                                   5                          A-0095-15T4
a.m.   The third was taken at 3:51 a.m.     They both showed a reading

of .15 percent BAC.    The second test could not be used because the

"minimum [breath] volume [was] not achieved."       Hanna described the

procedures, which involved inserting a new mouthpiece for the

tests.

       The Montvale case was listed for trial on June 9, 2014.

Defendant's expert witness, Kevin M. Flanigan, was not available

until July.     Just days before trial, defendant's counsel served

an expert report from Dr. Richard Saferstein, to testify about the

Alcotest.   Because of a professional conflict with Dr. Saferstein,

the municipal court judge disqualified himself sua sponte.              In

disqualifying himself, the municipal court judge stated: "You have

made your bed, and now you're going to sleep in it . . . .         While

I will recuse myself, . . . I am also going to indicate within

that order that the only expert that you can use in this matter

is Dr. Saferstein [.]"      The June 11, 2014 order also transferred

the case for reassignment, providing that "the defense expert

shall be none other than Richard Saferstein, Ph.D."

       The case was reassigned to another municipal court judge.         A

week before the October 23, 2014 trial, defendant served an expert

report dated August 19, 2014 from Dr. Greenberg, a podiatrist.

The    report   concluded   that   defendant's   "gait   evaluation"   was


                                     6                           A-0095-15T4
"abnormal" because of bilateral heel spurs, bunions, shortened

Achilles tendons, knee surgery, adhesions from hernia repair, loss

of weight and tight shoes.    Defendant was not able to perform the

"one leg stand" and "walk and turn" tests when Dr. Greenberg

examined him on August 13, 2014.

      At trial, no one could remember why the June 11, 2014 order

appeared to limit defendant to one expert, and no transcript was

available.     The judge barred Dr. Greenberg's testimony based on

the June 11, 2014 order.      McDowell and Hanna testified at the

trial to the facts involving defendant's arrest, field sobriety

testing and Alcotest.

     Dr. Saferstein testified about the Alcotest.   He alleged that

Hanna did not testify directly about changing the mouthpiece before

the third test.     He also claimed the observation period had not

been long enough.

     Defendant admitted having three beers with his meal.          He

testified that he swerved into the other lane because he was

texting.     He denied making a wide right turn at an intersection.

He denied having difficulty retrieving his driver's license.       He

denied having any difficulty performing any of the field sobriety

tests, but claimed he could not do them that day because of pain

in his feet and legs.


                                  7                         A-0095-15T4
       Defendant testified that he suffered from heel spurs that

caused him "to hobble" and "can't really stay on [his] feet a long

time."      He had be treated with cortisone injections in the past,

had left knee surgery in 2009 for a torn meniscus and had bilateral

hernia surgery in 1998.           He claimed he told McDowell at the scene

that he was going to have difficulty performing the tests while

wearing his shoes.

      The municipal court judge found the testimony of the two

officers to be credible.           He held that there was probable cause

for   the    motor     vehicle    stop    and    arrest    based   on    McDowell's

observations.         He rejected defendant's arguments attacking the

reliability     of     the    Alcotest,       finding     that   the    tests    were

administered        properly.      The    municipal     court    judge    convicted

defendant of operating his vehicle on August 30, 2013, while

intoxicated in violation of N.J.S.A. 39:4-50.

                                          B.

                                The Park Ridge Case

      At 2:10 a.m. on September 13, 2013, Officer John Szot of the

Park Ridge Police Department saw a vehicle make a left turn onto

Pascack      Road    and     accelerate       very   quickly     "grabbing      [his]

attention."         The driver made a right turn at a red light.                  The

vehicle was moving quickly.          Szot saw the vehicle make a wide turn


                                          8                                  A-0095-15T4
onto another street.    He turned on the siren and overhead lights,

but the vehicle did not stop.     The driver, later identified as

defendant, put on his left directional signal, turned left, and

then pulled into his driveway.   Szot testified defendant had been

driving over the posted speed limit, failed to stop at a red light

and failed to keep right before making a wide turn.         Defendant

also failed to stop for the siren and lights.

      Defendant produced his driver's license at the officer's

request.   Szot detected a faint odor of alcohol coming from the

vehicle, but a strong odor of cologne.        Defendant was "sweating

profusely."   He "had bloodshot, watery eyes, his . . . movements

were slow, lethargic, he was shaking a little bit because he

. . . appeared to be nervous."        He also was slurring his words.

His face was "very flush."       Defendant produced the requested

registration but not his insurance card.     Defendant was "fumbling"

looking for the documents.

     Defendant told Szot he was coming from a friend's house.        He

denied having had any alcohol.   Defendant could not satisfactorily

recite the alphabet from D to Q; did not accurately count backwards

from 69 to 54; and staggered as he got out of his vehicle.

     Szot again noticed an odor of alcohol as he conducted the

field sobriety tests.    Defendant did not tell Szot he would have


                                  9                           A-0095-15T4
any problem performing the tests because of a physical condition.

Defendant   did   not   successfully    perform   the   heel-to-toe   test,

raising his arms for balance, stepping off the line, turning

incorrectly and taking the wrong number of steps.          He also did not

count aloud as instructed.      On the one-leg stand test, defendant

raised his arms, put the other foot down, and swayed.                  Szot

testified that based on his experience and observation, defendant

was intoxicated and placed him under arrest.

     Once at the police station, Szot testified the "odor of an

alcoholic beverage became more apparent."          He observed defendant

for a full twenty minutes beginning at 2:53 a.m.           Defendant told

Szot as they completed the in-custody screening form that he had

surgery on his left knee and heel spurs on both feet.

     Sergeant Peter Mauro performed the Alcotest.           He noted that

defendant's eyes were "bloodshot and watery."           He smelled an odor

of alcohol on defendant's breath.          Defendant was slurring his

words.   Mauro also concluded that defendant was intoxicated.

     Mauro entered defendant's "pedigree" information into the

Alcotest machine and waited for the twenty-minute observation

period to elapse.       He checked to make sure everyone was free of

electronic devices.      He put a new mouthpiece on the hose for the

first and second test.       On cross-examination, he testified that


                                   10                              A-0095-15T4
the observation period commenced at 2:53 a.m. and the first test

was    completed     at    3:13    a.m.,   although       there    may   have   been    a

discrepancy in the clocks that were used.

       Mauro could not access the computer to enter the readings

"through the calculator," so he called an officer at the Montvale

police department who ran the readings through the calculator and

physically brought the results over to Mauro.                     The reading was .13

percent BAC.

       The municipal court judge "reaffirmed" his prior order of

June    11,   2014,    that   barred       expert   witnesses        other   than    Dr.

Saferstein.     Also, Flanigan was not available to testify about the

Alcotest.      The court concluded there was probable cause for the

motor vehicle stop, denying defendant's motion to suppress the

police videotape.           The municipal court found Szot's testimony

credible      that    he   could    not    catch    up    to   defendant     and    that

"[defendant] was clearly going in excess of a speed that's required

on a residential road" in the Borough.                   The municipal court judge

found defendant guilty of DWI based on observation evidence from

the police officers who he found to be credible.                     He rejected the

Alcotest results, however, because there was reasonable doubt

about whether the twenty-minute observation period had elapsed.




                                           11                                   A-0095-15T4
                                  C.

                   Superior Court De Novo Review

      Defendant appealed the convictions under the process codified

in Rule 3:23-1 to -9.     On July 15, 2015, both convictions were

heard de novo in the Law Division based on the municipal court

record. See R. 3:23-8. The trial court found that Dr. Greenberg's

report had been properly excluded because it was not served on the

State until a week before the Montvale trial.    Independent of this

discovery violation the report also was "not relevant" because it

never gave an opinion about whether defendant could have performed

the field sobriety tests when he was arrested in in 2013.        "There

[was] nothing in the report that indicate[d] that the defendant

[was] unable to perform these tests a year earlier."     Further, Dr.

Greenberg's testimony would have been limited to the "four corners

of the report," meaning that he could not have offered an opinion

at trial about defendant's abilities as of 2013.

      The Law Division found defendant guilty of DWI in the Montvale

case based on the Alcotest result of .15         percent BAC and on

observation evidence by the police.      The judge deferred to the

credibility findings of the municipal court judge.      He also found

the   officers'   testimony,   observations,   and   opinions    to    be

credible.   The court found probable cause for the motor vehicle


                                 12                             A-0095-15T4
stop.   The court rejected defendant's argument that the Alcotest

was   improperly      administered.         Although   the   testimony     about

changing the mouthpieces between the second and third tests was

"sketchy," the court was satisfied from the transcripts that the

officer changed the mouthpieces.

      The trial court found defendant guilty of DWI in the Park

Ridge case based solely on the observation evidence.                 Reviewing

the transcript de novo, the court found there was probable cause

for the motor vehicle stop of defendant based on "violation of the

motor vehicle laws."        The court found the officer's testimony to

be credible.     Szot had to travel in excess of the posted speed

limit to catch up with defendant; he observed defendant's failure

to stop; and defendant did not stop despite the officer's siren

and lights.

      The judge also denied defendant's motion to suppress the

police video tape.          The court reviewed Szot's testimony about

defendant's    odor    of   alcohol,   his    appearance,    slow   movements,

flushed face and cognitive testing, finding that the officer "had

a right to ask [defendant] to step out of the vehicle."

      The trial court convicted defendant based on observation

evidence that was "beyond a reasonable doubt."                 The officer's

testimony was corroborated by the video tape. The field sobriety


                                       13                                A-0095-15T4
tests were properly given.       Defendant did not testify at trial.

The court found defendant's failure to perform the sobriety tests

resulted from being under the influence of alcohol and not from

any   medical   or   physical   disability.   Defendant   also    failed

cognitive tests, noting there would be no physical reason for

this.

                                  II.

      On appeal, defendant raises the following issues:

           POINT I

           APPELLANT WAS PRECLUDED FROM INTRODUCING
           EXPERT TESTIMONY IN VIOLATION OF HIS DUE
           PROCESS RIGHTS.

           A.   The Lower Courts Misinterpreted and
           Overextended Judge Norton's Recusal Order.

           B.    Dr. Greenberg's Testimony is Relevant.

           C.   At a Minimum, Dr. Greenberg's Testimony
           was Subject to a Rule 104 Hearing.

           D.   Dr. Greenberg's Preclusion was Related in
           Part to Ineffective Assistance of Counsel (Not
           Raised Below).

           POINT II

           THE OCTOBER 23, 2014 TRIAL COURT IMPROPERLY
           ADMITTED EVIDENCE PERTAINING TO THE ALCOTEST
           AS THE STATE FAILED TO PROVE THAT PROPER
           PROCEDURES WERE FOLLOWED.




                                   14                            A-0095-15T4
          POINT III

          APPELLANT WAS IMPROPERLY STOPPED ON SEPTEMBER
          13, 2013 AND COUNSEL SHOULD HAVE MADE AN
          APPROPRIATE MOTION TO DISMISS (Raised in Part
          Below).


     On appeal, we "consider only the action of the Law Division

and not that of the municipal court."        State v. Oliveri, 336 N.J.

Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J.

179, 184 (1961)).    Under Rule 3:23-8(a)(2), the Law Division makes

independent findings of fact and conclusions of law de novo, based

on the record from the municipal court.         See State v. States, 44

N.J. 285, 293 (1965).        We determine "whether the findings made

could reasonably have been reached on sufficient credible evidence

present in the record." State v. Locurto, 157 N.J. 463, 471 (1999)

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)).           Our review

of legal determinations is plenary.         See State v. Handy, 206 N.J.

39, 45 (2011).

     We   are    satisfied    that    the   State   produced   sufficient

observation evidence in both cases to convict defendant of driving

while under the influence beyond a reasonable doubt.

     The thrust of the Motor Vehicle Act is safety on the highway.

          N.J.S.A. 39:4-50(a) prohibits the operation of
          a motor vehicle under the influence of
          intoxicating liquor. The phrase "under the
          influence" means a substantial deterioration

                                     15                           A-0095-15T4
            or diminution of the mental faculties or
            physical capabilities of a person. State v.
            Tamburro, 68 N.J. 414, 420 (1975). In a case
            involving intoxicating liquor, "under the
            influence" means a condition which so affects
            the judgment or control of a motor vehicle
            operator "as to make it improper for him to
            drive on the highway." State v. Johnson, 42
            N.J. 146, 165 (1964).

            [State v. Cryan, 363 N.J. Super. 442, 455
            (App. Div. 2003).]

       An officer's subjective observation of a defendant is a

sufficient ground to sustain a DWI conviction.               See Cryan, 363

N.J.   Super.   at   456-57   (sustaining      DWI    conviction    based      on

observations of defendant's bloodshot eyes, hostility, and strong

odor of alcohol); see also State v. Cleverley, 348 N.J. Super.

455, 465 (App. Div. 2002) (sustaining DWI conviction based on

officer's     observation     of   the   defendant's      driving       without

headlights,     inability     to    perform     field     sobriety       tests,

combativeness, swaying, and detection of odor of alcohol on the

defendant's     breath);    Oliveri,     336   N.J.     Super.     at    251-52

(sustaining DWI conviction based on officer's observations of

watery eyes, slurred and slow speech, staggering, inability to

perform   field   sobriety    tests,     and   defendant's    admission        to

drinking alcohol earlier in the day).

       In the Montvale case, the police officers testified about

defendant's odor of alcohol, watery and blood shot eyes, and slow

                                    16                                  A-0095-15T4
speech that was slurred.         He was wobbly and unsteady.          He failed

the field sobriety tests in a number of ways, including not taking

the proper number of steps and not counting out loud as instructed.

He had driven over the center line and turned widely.

      In   the    Park   Ridge   case,      the   officers    testified     about

defendant's odor of alcohol, particularly when he was at the

station, that his speech was slow and slurred, eyes bloodshot and

watery, and his face was flush.          He fumbled for his documents. He

staggered and took the wrong number of steps in the field sobriety

tests that he failed.        He could not recite the alphabet or count

backwards properly.        He had accelerated rapidly and turned wide.

He had not stopped for the police officer's siren and lights.

       A defendant's demeanor, physical appearance, slurred speech,

and   bloodshot    eyes,    together     with     an   odor   of   alcohol,    are

sufficient to sustain a DWI conviction.            State v. Bealor, 187 N.J.

574, 588-89 (2006); State v. Morris, 262 N.J. Super. 413, 421-22

(App. Div. 1993).        The Law Division judge did not err in finding

that the observation evidence satisfied these standards beyond a

reasonable doubt and in convicting defendant of driving while

intoxicated, N.J.S.A. 39:4-50.

      We reject defendant's argument that there was no probable

cause for the motor vehicle stop in Park Ridge on September 13,


                                       17                                 A-0095-15T4
2013. "Probable cause exists where the facts and circumstances

within . . . [the officers'] knowledge and of which they had

reasonably trustworthy information [are] sufficient in themselves

to warrant a [person] of reasonable caution in the belief that an

offense has been or is being committed."           State v. Moore, 181 N.J.

40, 46 (2004) (alterations in original) (quoting Schneider v.

Simonini,    163   N.J.   336,   361   (2000)).      A     police   officer   has

justification to stop a motor vehicle where he has an "articulable

and reasonable suspicion" that the driver has committed a motor

vehicle offense.     State v. Smith, 306 N.J. Super. 370, 380 (App.

Div. 1997).

     Here, the municipal court and Law Division judges found Szot's

testimony to be credible.        We defer to that finding.           "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."              Locurto, 157 N.J at 474.          Szot

testified he saw defendant accelerate quickly, proceed through a

red light, turn right, turn widely and fail to stop for the officer

once his siren and lights were activated.                Under the totality of

the circumstances, these facts were enough for an objectively




                                       18                               A-0095-15T4
reasonable police officer to believe that defendant had committed

a motor vehicle in violation.

       Any error with respect to not permitting Dr. Greenberg to

testify was harmless in light of our decision here that the

convictions are affirmed based on observation evidence.                      See State

v. Castagna, 187 N.J. 293, 312 (2006) (quoting State v. Macon, 57

N.J. 325, 337-38 (1971)) (providing based on Rule 2:10-2 that

"[w]e will disregard '[a]ny error or omission [by the court]

. . . unless it is of such a nature as to have been clearly capable

of    producing    an   unjust     result.'").           There    was    overwhelming

observation evidence of defendant's guilt in both cases based on

his    driving,      appearance,       smell,       behavior        and     cognitive

inabilities.      Defendant       admitted    he   had    been     drinking       in   the

Montvale    case.       Dr.   Greenberg's      testimony         about     defendant's

physical condition would not have explained away any of the other

evidence of intoxication.

       If there were errors by trial counsel, "[o]ur courts have

expressed    a    general     policy   against      entertaining         ineffective-

assistance of counsel claims on direct appeal because such claims

involve    allegations      and    evidence    that      lie     outside    the    trial

record."    State v. Castagna, 187 N.J. 293, 313 (2006), (quoting

State v. Preciose, 129 N.J. 451, 460 (1992).


                                        19                                     A-0095-15T4
      Finally, we reject defendant's argument that the Alcotest

procedures were flawed in the Montvale case.               Defendant contends

that there was no direct testimony that the officer removed cell

phones and other devices before starting the test.                   The State

bears the burden of proving compliance by clear and convincing

evidence.      State v. Campbell, 436 N.J. Super. 264, 270 (App. Div.

2014).   However, the Court provided in Chun that "there is ample

support for the finding that the Alcotest is well-shielded from

the impact of any potential RFI that might otherwise affect the

reported results or limit our confidence in the accuracy of the

test results."         State v. Chun, 194 N.J. 54, 89 (2008).          We said

in Carrero that "even if sources of RFI happened to be found in

the testing area at the [police station] where [defendant's] blood-

alcohol level was tested, those sources would not suffice to call

into reasonable question the accuracy or validity of the Alcotest

results for the purpose of a DWI prosecution."              State v. Carrero,

428 N.J. Super. 495, 510 (App. Div. 2012), rev'd on other grounds,

225 N.J. 582 (2016).

      Defendant also contends there was no affirmative testimony

by the officer that he put a new mouthpiece on the machine after

the   second    test    and   before   the   third   in   the   Montvale   case.

However, we agree that the record supported the trial court's


                                       20                              A-0095-15T4
finding that proper procedures were followed in the testing.              The

officer described the process. "You hit continue, and the defendant

blows   again.   And   the   same   process.   Um,   again,   with    a   new

mouthpiece, not the old one . . . ."       He described the procedures

in detail.   The officer responded to the question "and that's what

you remember doing" after he described this and other procedures,

with the answer "I do remember doing that, yes."              Based on the

record, we have no basis to attack the findings of the Law Division

judge that the Alcotest was properly performed.         Thus, there also

was independent credible evidence to convict defendant of DWI on

a per se basis in the Montvale case.       See N.J.S.A. 39:4-50.

     Defendant's remaining arguments lack sufficient merit to

warrant discussion in a written opinion.        R. 2:11-3(e)(2).

     Affirmed.




                                    21                               A-0095-15T4
