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State v. Ferry

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 21, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN FERRY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 56-2006.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 22, 2008

Before Judges Stern and C.L. Miniman.

Defendant pled guilty in the South Plainfield Municipal Court to driving while intoxicated (DWI), reserving for appeal the question of his "operation" of the vehicle. On trial de novo, Judge James Mulvihill found sufficient evidence of "operation" and entered a judgment of conviction,*fn1 subject to defendant's ability to apply to the municipal court for relief "should the Supreme Court . . . find that the Alcotest is unreliable." See State v. Chun, 194 N.J. 54 (2008), which was subsequently decided on March 17, 2008. Defendant's brief states that defendant "wished to take advantage of his right to argue at a future date that there are problems relative to the Alcotest, 7110 MKIII C, once the issue of the reliability . . . is ultimately decided by our Supreme Court in State v. Chun."

The State agreed to this procedure. We do not comment on the scope of such a "reservation."*fn2 Nor do we comment on the ability of a defendant to enter the type of conditional plea of guilty entered here, while challenging the sufficiency of the proofs concerning an element of the offense but accepting the judge's findings for purposes of the plea. See R. 7:6-2(c); see also R. 3:9-3(f).

Defendant's brief before us details the stipulation before the municipal court:

1. The Court to review the videotape that deals with the officer's stop and questioning of the Defendant up to the point where he commences his field sobriety testing. The Municipal Court advised that it shall be reviewing the videotape and shall advise as to the Court's determination.

2. Submission of the police report, which the Court is to review up to the point where counsel has black lined it, which takes the Court to the point where the officer starts giving Defendant field sobriety test instructions. The Court was advised that said stipulation "ends with the line that says 'He said that he did.'" The Court was asked to stop reading at said point.

3. Defense counsel's "motion, procedural history, statement of facts, and his legal arguments to come in."

4. Defense counsel advised the Court that there is a typographical error on page 2 of his legal brief, that being that the Court is to ignore any reference in the brief to the fact that Defendant was merely sitting in the vehicle for a time. The State concurred when the State advised the Court that "it actually refers to a person sitting behind the wheel, and this was not the fact. But our statement of facts controls." It is my understanding that the Court's copy of the brief has the appropriate language crossed out.

5. The South Plainfield Police Officer acknowledges that it was Defendant who called Piscataway police, and Piscataway police then called South Plainfield police.

6. That for purposes of the motion, Defendant was on the revoked list.

7. That there was no spare tire in Defendant's vehicle.

8. That Defendant's engine was off.

9. That, by way of an addition to Defendant's Statement of Facts, Defendant left White Castle, took beer from the car, went to an adjoining field, drank beer, then returned to White Castle to await police arrival.

The defendant's statement above the line reads as follows:*fn3

BEVERAGE WAS COMING FROM BRIAN. 2) WHEN APPROACHED:

AT THIS TIME LT. ARANCIO AND P[.]O. MOLINARO WERE ON SCENE. BRIAN THEN STARTED TO SAY THAT SOMEONE HAD PUNCHED HIM IN THE RIBS AND HAD STOLEN HIS GOLD CHAIN AND A CHARM. AS HE SPOKE HIS SPEECH WAS SLIGHTLY SLURRED AND HE MUMBLED. WHEN ASKED HOW LONG AGO THE INCIDENT HAPPENED HE SAID ABOUT A HALF HOUR AGO. WHEN ASKED WHY HE DIDN'T CALL THE POLICE AT THE TIME HE SAID BECAUSE HE HAD LEFT THEN CAME BACK AND HAD BEEN DRINKING. BRIAN SAID HE DID NOT KNOW WHO THE ACTORS WERE AND ALL HE SAID WAS THAT THE PEOPLE WERE DARK.

I WALKED OVER TO THE CAR THAT BRIAN SAID HE DROVE TO WHITE CASTLE IN AND FOUND THE HEADLIGHTS ON WITH THE FRONT RIGHT TIRE FLAT. INSIDE THE FRONT PASSENGER COMPARTMENT ON THE FLOOR WERE BUDWEISER BOTTLES. I ASKED BRIAN WHY HE DROVE AND HE SAID THAT HE DID NOT KNOW AND THAT HE SHOULD NOT HAVE. I TOLD BRIAN THAT THE FRONT TIRE WAS FLAT AND HE SAID THAT HE KNEW.

BRIAN WAS ESCORTED TO A CLEAR, FLAT, WELL LIT AREA OF THE PARKING LOT FOR FIELD DEXTERITY TESTS.

AS I APPROACHED BRIAN I ASKED HIM IF THE CAR, N[.]J[.] REG[.] # RNT58D, THAT WAS PARKED NEXT TO HIM WAS THE CAR THAT HE DROVE TO WHITE CASTLE. HE REPLIED BY SAYING YES SIR. I ASKED HIM HOW HE GOT THE FLAT TIRE AND HE SAID THAT HE HIT THE CURB WHEN ENTERING THE PARKING LOT.

BRIAN WAS ASKED IF HE HAD ANY PROBLEMS WITH HIS ANKLES, KNEES OR BACK TO WHICH HE REPLIED THAT HE DID NOT.

BRIAN WAS ASKED IF HE UNDERSTOOD THE ENGLISH ALPHABET TO WHICH HE SAID THAT HE DID.

As already noted, defendant does not challenge the fact he was intoxicated, and had beer bottles in his vehicle at the time of offense, when police responded to his call for help from a White Castle parking lot. Defendant never challenged the element of intoxication before the plea was entered in municipal court and asserts that he drank and became intoxicated only after "operating" the car.

Judge Mulvihill reviewed the record including the videotape which has not been presented to us, and found the following:

So what we have here is from the stipulation that he did drive the motor vehicle to the White Castle, that he was in an accident which blew the I think front right tire. Also the headlights were on in the car? The headlights were on in the car.

The car headlights were on.

Now, also it was in there that during that thirty minutes, it was stipulated he left White Castle, took beer from his car, went to an adjoining field, drank beer and came back. People don't become drunk in thirty minutes. Alcohol takes a while to get into the system and to cause intoxication. There were also open beer bottles on the front passenger side of the vehicle which indicates an inference that he was [] [drinking] while he was in the car, not in the field but in the car.

In the video he was asked, all right, the officer says, "How did the car get here?"

Brian Ferry, "I drove it here."

"You know you're bombed."

His answer was, "Yeah."

So I find that with all the inferences, the defendant was intoxicated at the time he actually drove the motor vehicle to the White Castle and his claim that he was robbed and so on is not credible.

Defendant insists his statement that he was "bombed" referred only to the moment when he was questioned. He also claims the acknowledgement that he should not have driven the vehicle related to his prior suspension, not to operation while intoxicated.

Intoxication at some point in time was admitted, and the defendant complains the Law Division concluded, without expert testimony, that it takes more than thirty minutes to "become drunk" (which brings the reliability of the Alcotest into play).

We need not decide whether judicial notice can be taken of that fact. See, e.g., State v. Tischio, 107 N.J. 504, 522 (1987) (holding that prosecution under N.J.S.A. 39:4-50 "neither requires nor allows extrapolation evidence to demonstrate the defendant's blood-alcohol level while actually driving"). Even if the fact is not of common knowledge or subject to judicial notice, the passing comment is insignificant in terms of the judge's findings. From the circumstances observed and what was admittedly said to the responding officers, the inferences were sufficient to sustain the finding by Judge Mulvihill that defendant was intoxicated at a time when he was driving.

As there were enough inferences to sustain a finding of operation while intoxicated, we affirm the DWI conviction.


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