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State v. Cuneo

Decided: July 5, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD CUNEO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.

Before Judges King, Havey and A. M. Stein.

King

The opinion of the court was delivered by

KING, P.J.A.D.

This case concerns the application of the doctrine of double jeopardy where a defendant charged with DWI and other motor vehicle offenses submits to a municipal court trial on the sole issue of operation. We conclude that jeopardy attached to the proceeding. The State cannot appeal an adverse determination and, if successful, seek to retry the defendant after the adjudication of nonoperation is made. The adjudication of nonoperation was tantamount to a judgment of acquittal.

On May 9, 1992 defendant was arrested and charged with driving while intoxicated (N.J.S.A. 39:4-50), failure to use headlights (N.J.S.A. 39:3-47), driving on the revoked list (N.J.S.A. 39:3-40), driving without a license (N.J.S.A. 39:3-10), and possessing an open container of alcohol in a vehicle (N.J.S.A. 39:4-51a). Defendant pleaded not guilty and asserted that he was not the driver of the vehicle. At a hearing in Millville Municipal Court, the Judge found that defendant was not the operator of the vehicle. The State appealed pursuant to R. 3:24(b). The law division Judge reversed the finding of the municipal Judge. He found that the decision was against the weight of the evidence and ordered a new trial. On October 18, 1992 we granted defendant's motion for leave to appeal. R. 2:2-3(b); R. 2:5-6. We conclude that this order was in error because the original proceeding was a trial on the issue of operation and jeopardy attached, precluding a retrial.

On May 8, 1992 defendant and a friend left defendant's home in his father's truck, a pick-up with a cab on the rear. The friend drove the truck to a bar in Richland, Atlantic County. Defendant testified that he let his friend drive because defendant was not a licensed driver. At about 7 p.m., defendant and his friend left that bar and drove to the Third Ward Tavern in Millville, Cumberland County. Sometime after this, defendant's friend left the Third Ward Tavern in his wife's car.

According to defendant, he gave the keys to the truck to Dave Byron, a bartender at the Third Ward Tavern, while inside the bar. Byron had offered to drive defendant back to Byron's house. Defendant explained that he wanted to make sure he did not drive. Defendant drank about twelve to fifteen beers that night.

At about 2 a.m., defendant left the Third Ward Tavern. He entered his father's truck with Byron, Keith Ross, a friend of the defendant's, and an individual referred to only as John. Ross got into the rear of the truck. Byron drove and John and defendant rode in the front. The four proceeded to Byron's house.

Millville police officers noticed the truck travelling behind their police car. According to the officers' testimony, the truck had its lights turned off. The police officers pulled to the side of the road and allowed the truck to pass on the left. They then pulled the truck over.

Both police officers identified defendant as the driver of the vehicle. One of the police officers explained that defendant was wearing a hat when the truck passed them and defendant still had it on after the truck had been stopped. Defendant testified he did not wear a hat. Neither officer noticed any movement in the front portion of the truck after it had stopped. The police officers testified that their view of the occupants, from the rear, was unobstructed. As the police officers approached the vehicle, they saw defendant in the driver's seat. They both stated that defendant did not deny being the operator of the motor vehicle at the scene. The officers asked defendant to leave the vehicle and arrested defendant.

A third officer, Watson, arrived at the scene after the truck had been stopped. Officer Watson was called to the scene because he was in charge of the DWI patrol. According to Watson, defendant did state to him that he was not the operator of the truck.

Defendant testified he fell asleep during the ride and awoke to hear somebody yell, "Move, move, move, move." Defendant explained he felt poking in his side. Defendant described how Byron had jumped over him from the driver's seat and moved defendant into the driver's seat. Defendant pointed to the fact that he had to replace the knobs on the dashboard because they had been kicked off as evidence of this movement. According to defendant, the truck did not have a console and or gear shift on the floor which might hinder such a change in positions. Ross corroborated defendant's account. Upon completion of the witness' testimony, the municipal Judge stated:

All right, gentlemen. I'm going to tell you, I don't think I need to wait and have [a] brief or anything like that. I've heard the testimony and usually there's certainly a lot of reason for people to lie under circumstances of this nature. But I've heard the testimony. I've heard Mr. Cuneo and I believe him, just as clear as it can be. I just believe him having heard his testimony today. I believe that he was highly intoxicated and that somebody moved him at the time. Ordinarily there are many circumstances when people come here, and I hear a lot of misrepresentations as to what happened, but it's the obli -- it'd be the obligation of the State to prove the case beyond a reasonable doubt, operation certainly is one of those, and I'm going to grant the motion at ...


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