On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels, Gruccio and D'Annunzio. The opinion of the court was delivered by Michels, P.J.A.D.
Defendant Christopher W. Moore was found guilty in the Municipal Court of Midland Park, New Jersey of consuming an alcoholic beverage while operating a motor vehicle in violation of N.J.S.A. 39:4-51a. The Municipal Court judge sentenced defendant as a second offender to ten days of community service and fined him $250 pursuant to N.J.S.A. 39:4-51a(c). Defendant appealed to the Law Division where, following a trial de novo on the record, he was again found guilty and the same sentence imposed. Defendant appealed and the Law Division judge stayed the sentence pending this appeal.
According to the State's proofs, on September 14, 1989 at approximately 12:05 a.m., Sergeant Robert Klingen (Sergeant Klingen) of the Midland Park Police Department was on routine patrol with Officer Smith in a marked police vehicle when he came upon a disabled passenger car at the corner of Goffle Road and Godwin Avenue in Midland Park. The disabled car was stopped underneath the traffic light with its hood up. Sergeant Klingen parked his patrol car behind the disabled car and approached defendant who was underneath the hood. Also present was a passenger, John Gallagher (Gallagher), who was seated in the front right hand passenger side seat.
Once the disabled car was removed from the road, Sergeant Klingen asked defendant for his license, registration and insurance card. During this conversation, defendant admitted to being the operator of the car before it became disabled. At this point, Sergeant Klingen was standing within one to two feet of defendant and detected a "strong odor of alcoholic beverages on [defendant's] breath." The area was well-lit with street lights on both sides of the road and Sergeant Klingen observed defendant's eyes to be "somewhat red and watery." Based upon these observations, Sergeant Klingen asked defendant to perform certain field sobriety tests which were done satisfactorily.
Shortly after defendant completed the field sobriety tests, Gallagher exited the car. Sergeant Klingen then "examined the interior of the vehicle" and saw a brown paper bag (bag) on the floor of the front passenger's seat. "[T]he bottom of the bag was wet and there was liquid around the bottom of the bag." When Sergeant Klingen lifted up the bag, the bag's bottom fell out and two open, partially consumed cans of Budweiser beer fell to the floor. Since both cans of beer were open, "a good portion spilled from both cans on to the floor." Sergeant Klingen retrieved the two beer cans, which were still cold, and found that each can was "approximately half full." At that time, Sergeant Klingen asked both defendant and Gallagher to whom the cans of beer belonged, but neither party admitted to ownership or possession.
Defendant, however, denied drinking any beer from the containers in the bag. According to defendant, he worked at his grandmother's house that day scraping paint, painting and resurfacing the house; these activities irritated his eyes making them red. That night while watching T.V. and relaxing at his grandmother's house, defendant consumed one beer between approximately 11:00 p.m. and 11:30 p.m. "A little before twelve," defendant received a phone call from Gallagher asking defendant to pick him up on Goffle Road at the Hess gas station. Defendant got up and drove the ten to fifteen minutes from his house to the Hess gas station where he picked up Gallagher.
When defendant arrived at the Hess gas station, Gallagher had a bag with him. Gallagher picked up the bag, put it down on the passenger's seat and then entered the car. Once Gallagher was in the car, defendant exited the Hess gas station and proceeded north on Goffle Road to take Gallagher home. As defendant drove north, neither Gallagher nor the bag moved from the passenger's side. Defendant denied drinking any beer from the containers in the bag or smelling any alcohol when the bag was brought into the car or knowing that beer was in the bag. Defendant did not know what was in the bag but
"presumed it was [Gallagher's] clothes because he has no driver's license, and he usually carries a spare set on him."
While traveling north on Goffle Road, defendant's car stalled at the light. When defendant was under the hood of the car, the police officer approached him. Defendant explained to the police officer that he "was just picking [his] friend up, and dropping him off, and giving him a lift home because he was down and out." The police officer then asked defendant if he had been drinking and defendant responded that he had one beer at his house. At that point, defendant's car was pushed into a gas station. Once defendant and Gallagher got out of the car, the police officer went into the car and picked up the bag. When the police officer asked defendant and Gallagher who owned the beer, defendant denied ownership. Defendant was charged with having an "open alcoholic beverage in the motor vehicle" in violation of N.J.S.A. 39:4-51a, while Gallagher was charged with "consuming an alcoholic beverage in a motor vehicle" contrary to N.J.S.A. 39:4-51a.
Defendant seeks a reversal of his conviction, or alternatively, a modification of his sentence on the following grounds ...