SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5740-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL ESPOSITO,

Defendant-Appellant.

_______________________________

Submitted February 8, 2017 – Decided 

Before Judges Carroll and Gooden Brown. 

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, Municipal 

Appeal No. 2015-022.

Anthony H. Guerino, attorney for appellant.

Carolyn A. Murray, Acting Essex County 

Prosecutor, attorney for respondent (Stephen 

A. Pogany, Special Deputy Attorney General/

Acting Assistant Prosecutor, on the brief). 

 The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

Defendant Michael Esposito appeals his conviction for driving 

while intoxicated (DWI), N.J.S.A. 39:4-50(a), DWI in a school 

zone, N.J.S.A. 39:4-50(g), and refusal to submit to a breath test 

NOT FOR PUBLICATION WITHOUT THE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.

September 18, 2017
2 A-5740-14T3

(Refusal), N.J.S.A. 39:4-50.4(a). Defendant was convicted 

following a trial de novo in the Law Division.

1 After merger, 

defendant's driver's license was suspended for two consecutive 

one-year terms, participation in the Intoxicated Driver Resource 

Center for twelve hours was imposed, installation of an ignition 

interlock device for six months following restoration of his 

driving privileges was ordered, and all applicable fines and 

penalties were assessed. We affirm.

We glean the following facts from the record. At about 3:00 

a.m. on June 15, 2014, after observing a vehicle cross over the 

double yellow lines on the roadway, Officer Kevin Brogan conducted 

a motor vehicle stop at the intersection of Roseland Avenue and 

Lenfell Lane in Essex Fells. The driver, later identified as 

defendant, had "bloodshot and glassed over" eyes; slow, slurred 

and incoherent speech; and a strong odor of alcoholic beverage 

emanating from his mouth. Defendant also failed three field 

sobriety tests,

2 staggered and swayed "from side to side" when he 

 

1 In the municipal court, defendant was also convicted of failure 

to keep right, N.J.S.A. 39:4-82. However, that conviction was not 

appealed.

2 Brogan administered the Horizontal Gaze Nystagmus (HGN), the 

walk-and-turn, and the one-leg stand. He testified that for each 

test, defendant exhibited indicators of intoxication. 
3 A-5740-14T3

attempted to walk, stood with his feet wide apart for balance, and 

moved "slowly" when producing his driving credentials. 

Based on his observations and the results of the field 

sobriety tests, Brogan placed defendant under arrest and 

transported him to police headquarters, where Brogan read 

defendant the New Jersey Attorney General's Standard Statement for 

Motor Vehicle Operators (Standard Statement), which advised 

defendant of the statutory requirement to submit to a chemical 

breath test. After Brogan read the Standard Statement verbatim, 

defendant refused to submit to a breath test and requested an 

attorney. Defendant was subsequently charged accordingly.

At trial, a certified drug-free school zone map was admitted 

into evidence as a business record. Brogan identified on the map 

his original location and the location of the motor vehicle stop, 

both of which were within the drug-free school zone. Brogan also 

testified that the dash-cam video recorder in his patrol car was 

activated during the motor vehicle stop. However, when crossexamined about conducting the field sobriety tests out of the view 

of the dash-cam, Brogan explained that he conducted the tests to 

the right of the parked vehicles for safety reasons because 

Roseland Avenue was a "busy road[.]" 

Defendant testified on his own behalf and directly 

contradicted Brogan's testimony in material areas. Defendant 
4 A-5740-14T3

denied drinking alcohol on the night in question or crossing the 

yellow lines on the roadway. Contrary to Brogan's testimony, 

defendant testified that the field sobriety tests were performed 

on an area of the roadway that was uneven. Nonetheless, defendant 

claimed that he successfully completed the field sobriety tests 

and attributed the redness in his eyes to seasonal allergies. 

Defendant also claimed Brogan did not inform him of the refusal 

consequences and, when defendant inquired whether he had to take 

the test, Brogan's partner told him that he did not. However, 

defendant admitted during cross-examination that he was familiar 

with the Standard Statement from a prior motor vehicle stop in

November 2013 when he was suspected of DWI. 

The municipal judge found Brogan's testimony credible based 

on the manner in which he testified and his consistency on both 

direct and cross-examination. In contrast, the municipal judge

rejected defendant's denials, finding that they were "selfserving" and not credible. The Law Division judge accepted the

municipal judge's credibility determinations and, on July 30, 

2015, found defendant guilty anew. In her oral decision, after 

applying the applicable legal principles, the judge determined 

that the evidence presented supported the guilty verdicts based 

upon "[d]efendant's failure to successfully complete sobriety 

tests and the police officer's observation of the [d]efendant's 
5 A-5740-14T3

conduct[,]" as well as defendant's refusal to take a breath test 

after "he was fully informed of the consequences[.]" This appeal 

followed. 

On appeal, defendant presents the following points for our 

consideration:

POINT I

THE STATE FAILED TO MEET ITS BURDEN OF PROOF 

AS TO THE DATE OF THE OFFENSE, AN ESSENTIAL 

FACT NECESSARY TO ESTABLISH THE BASIS OF THE 

PROBABLE CAUSE FOR THE MOTOR VEHICLE STOP, AND 

TO PROVE THE SUBSTANTIVE CHARGES BEYOND A 

REASONABLE DOUBT. 

POINT II

THE CHARGE OF [N.J.S.A.] 39:4-82, KEEPING TO 

THE RIGHT WAS THE INCORRECT STATUTE FOR THE 

DEFENDANT'S PURPORTED MOVING MOTOR VEHICLE 

VIOLATION. 

POINT III

THE STATE FAILED TO LAY THE PROPER FOUNDATION 

FOR THE CHARGE [N.J.S.A.] 39:4-50(g), DWI 

WITHIN A THOUSAND FEET OF SCHOOL PROPERTY. 

POINT IV

THE STATE FAILED TO MEET ITS BURDEN OF PROOF 

AS TO THE VIOLATION OF [N.J.S.A.] 39:4-50.2.

POINT V

THE LAW DIVISION'S REVIEW OF THE TRIAL COURT'S 

DECISION ON THE TRIAL DE NOVO IS DEFECTIVE.

Our review of the trial court's factual findings is limited 

to whether the conclusions of the Law Division judge "could 
6 A-5740-14T3

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, 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. (citation omitted). 

"However, no such deference is owed to the Law Division or the 

municipal court with respect to legal determinations or 

conclusions reached on the basis of the facts." State v. Stas, 

212 N.J. 37, 49 (2012).

Based upon these principles and our review of the record, we 

affirm. We are satisfied that the Law Division judge's findings 

of guilt could reasonably have been reached on sufficient credible 

evidence present in the record. Defendant argues for the first 

time on appeal that the State "failed to effectively establish the 

date on which the alleged violations occurred." According to 

defendant, because of this "critical defect in the State's case[,]" 

the convictions should be reversed. At trial, Brogan mistakenly 

testified that the incident occurred on June 22, 2014. However, 
7 A-5740-14T3

the summonses issued to defendant were dated June 15, 2014. 

Because defendant made no objection before the Law Division, we 

review the Law Division's decision for plain error. R. 2:10-2. 

Under this standard, "an error is reversible if it was 

'clearly capable of producing an unjust result.'" State v. 

Taffaro, 195 N.J. 442, 454 (2008) (quoting R. 2:10-2). Here, in 

light of the fact that each summons issued to defendant had the 

correct date and defense counsel conducted a vigorous crossexamination of Brogan and never questioned him on the discrepancy, 

we are satisfied that the date of the commission of the offenses 

was never in dispute. Moreover, while testifying, defendant 

admitted that the date of the incident was, in fact, June 15, 

2014. Defendant testified that it was Father's Day and he had 

plans to celebrate with his children later in the day. Because 

the incorrect date had no real effect on the State's overall proofs

and the evidence of defendant's guilt was overwhelming, we find

no plain error.

Defendant also argues for the first time on appeal that the 

State failed "to establish the proper foundation" for introducing

the drug-free school zone map into evidence as a business record. 

When presented with the certified drug-free school zone map, Brogan 

confirmed that it was kept in the ordinary course of business at 

the Essex Fells Police Department, and that he was familiar with 
8 A-5740-14T3

its contents. Brogan also provided credible testimony of his 

observations at the time of the motor vehicle stop, specifically,

the distance traveled and the location of his and defendant's 

vehicle in relation to the school zone. When the prosecutor sought 

to introduce the map into evidence, defense counsel expressly 

indicated that he had no objection. Counsel's failure to object 

at trial constitutes a waiver of his opportunity to seek appellate 

review of this issue on appeal. R. 2:10-2. Nonetheless, we are 

satisfied that the State met its evidentiary burden because 

N.J.S.A. 39:4-50(g) permits, but does not require, the 

introduction of a certified map to prove the school zone element 

of the violation. 

Finally, we will not consider defendant's argument that the 

State erroneously charged failure to keep right, instead of failure 

to maintain a lane, N.J.S.A. 39:4-88, because defendant did not 

appeal that conviction to the Law Division. See State v. Robinson, 

200 N.J. 1, 20 (2009) (reiterating the well-settled principle that 

"appellate courts will decline to consider questions or issues not 

properly presented to the trial court when an opportunity for such 

a presentation is available unless the questions so raised on 

appeal go to the jurisdiction of the trial court or concern matters 

of great public interest" (citation omitted).).

Affirmed.