Carton, Crahay and Handler.
Defendant was convicted in the municipal court of driving while under the influence of intoxicating liquor on a restricted service road at the Newark Airport (N.J.S.A. 39:4-50). After a de novo trial on the record on appeal, the County Court entered a judgment of acquittal on the ground that defendant had not been operating the vehicle on a public road. The State appeals.
We conclude that the State's appeal must be dismissed for lack of jurisdiction. Here defendant was acquitted by the court after a trial on the merits. It appears
to be settled that under such circumstances the State has no right of review. Newark v. Pulverman , 12 N.J. 105 (App. Div. 1961). Pulverman involved an appeal from a conviction in the municipal court for violation of a zoning ordinance. The court said (at 112): "[U]nder our current statutes and rules of court no similar review of legal rulings may be had by the State in a criminal case where the defendant has been acquitted at trial." To the same effect is State v. Fiore , 69 N.J. Super. 122 (App. Div. 1961), and Paramus v. Martin Paint , 128 N.J. Super. 138 (App. Div. 1974).
Nor is an appeal by the State authorized in the present case under the rules of the Supreme Court. R. 2:3-1 enumerates those actions of the trial court which can be appealed by the State:
In any criminal action the State may appeal or, where appropriate, seek leave to appeal pursuant to R. 2:5-6(a):
b. to the appropriate appellate court from: (1) a judgment of the trial court entered before or after trial dismissing an indictment, accusation or complaint * * *.
As that rule states, such an appeal is permissible only "where appropriate." Here the judgment of acquittal was on the merits after a trial and is not appropriate. Contrary to the State's contention, the court's action was not based on a procedural ground or one that can be equated with such a ground. The fact that the acquittal was granted for a legal reason, rather than on the basis of a factual determination, does not alter the result. This is so whether or not the trial judge may have erred in his ruling.
Although we are precluded from reaching a decision on the merits, we observe that it is long-settled law in New Jersey that one who operates a motor vehicle in an area open to the public is subject to the drunken driving laws even if the place of operation is privately owned. See State v. Gillespie , 100 N.J. Super. 71 (App. Div. 1968) (apartment house parking lot); State v. Sisti , 62 N.J. Super. 84
(App. Div. 1960) (shopping center parking lot); State v. O'Grady , 19 N.J. Misc. 559, 21 A.2d 864 (Spec. Sess. 1941) (ferryboat and dock). See generally, Annotation, "Applicability to Operation of Motor Vehicles on Private Property, of Legislation Making Drunken Driving a Criminal Offense," 29 A.L.R. 3d 938 (1970). In view of the danger presented to members of the public by an intoxicated driver, it may be cogently argued that ...