On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Michels and Baime. The opinion of the court was delivered by Michels, P.J.A.D.
Defendant Carter B. Morris was found guilty in the Law Division of (1) operating a motor vehicle while under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50(a); (2) resisting arrest in violation of N.J.S.A. 2C:29-2 and (3) simple assault in violation of N.J.S.A. 2C:12-1a. These findings were made following a trial de novo on the record of the proceedings which had previously taken place in the Municipal Court of the City of Newark. Based on these findings, the Law Division Judge fined defendant $250, imposed a $100 insurance surcharge under N.J.S.A. 39:4-50.8, assessed a $30 Violent Crimes Compensation Board penalty, directed defendant to attend twelve hours at an Intoxicated Driver Resource Center and suspended defendant's driver's license for six months as a result of his conviction for operating a motor vehicle while under the influence of intoxicating liquor. In addition, the trial court merged defendant's convictions for resisting arrest and simple assault for purposes of sentencing, and then fined defendant $100 therefor. Defendant appeals.
Defendant seeks a reversal of his convictions based on the following grounds set forth in his brief:
I. DEFENDANT COULD NOT HAVE BEEN FOUND TO HAVE OPERATED THE VEHICLE IN VIOLATION OF N.J.S.A. 39:4-50 SINCE THE VEHICLE WAS INOPERABLE.
II. THE COURT MISAPPLIED THE HOLDING IN STATE v. STIENE, SINCE IN THIS CASE THERE WAS NO EVIDENCE THAT DEFENDANT "ATTEMPTED TO OPERATE" THE VEHICLE OR THAT THERE WAS "THE POSSIBILITY OF MOTION."
III. THE STATE, WHILE PRESENTING EVIDENCE REGARDING DEFENDANT'S "INTOXICATION," FAILED TO PRESENT [EVIDENCE SHOWING], AND THE COURT FAILED TO FIND[,] THAT THE DEFENDANT VIOLATED N.J.S.A. 39:4-50, IN ACCORDANCE WITH THE REQUIREMENTS OF STATE v. TAMBURRO.
IV. THE COURT ERRED IN FAILING TO CONSIDER THE UNREFUTED EVIDENCE OF DEFENDANT'S EXPERT THAT DEFENDANT'S B.A.C. READING WAS BETWEEN .00% AND .025% AT THE TIME OF HIS ALLEGED OPERATION.
V. THE ACT OF ASSAULT ALLEGED BY THE STATE OCCURRED AFTER DEFENDANT'S ARREST, THEREFORE HIS CONVICTION ON BOTH SIMPLE ASSAULT AND RESISTING ARREST AMOUNTED TO DOUBLE JEOPARDY.
VI. THE COURT ERRED IN THAT IT EMPLOYED AN IMPROPER STANDARD OF PROOF AND BASED ITS DETERMINATION, IN LARGE PART, UPON SUPPOSITION AND SPECULATION AND NOT UPON THE PROOFS PRESENTED AT TRIAL, CONTRARY TO THE STANDARD OF PROOF BEYOND A REASONABLE DOUBT.
We have carefully considered these contentions, and all of the arguments advanced by defendant in support of them, and find that they are clearly without merit. R. 2:11-3(e)(2). Careful study of this matter satisfies us that there is sufficient credible evidence on the record as a whole to support defendant's conviction for operating a motor vehicle while under the influence of intoxicating liquor, as proscribed by N.J.S.A. 39:4-50(a), and we discern no sound basis or reason to interfere therewith. See State v. Johnson, 42 N.J. 146, 161-62, 199 A.2d 809 (1964). Additionally, defendant's separate convictions for resisting arrest and simple assault are also amply supported by the record, and are entirely proper under the law. Thus, they will not be upset. Accordingly, the judgment under review is affirmed substantially for the reasons expressed by Judge Levy in his thorough letter opinion of February 14, 1992.
Nevertheless, we deem it appropriate to comment on certain of defendant's contentions concerning his driving while under the influence conviction. In this regard, we emphasize that ...