May 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PATRICIA ACCARDI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 93-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2009
Before Judges Lihotz and Messano.
Defendant, Patricia Accardi, appeals her conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.4(a). Defendant was found guilty of these offenses in Atlantic City Municipal Court. She was acquitted of the additionally charged offense of reckless driving and a careless driving charge was merged. Defendant was sentenced as a second-time DWI offender, N.J.S.A. 4-50(a)(2), resulting in the suspension of her driving privileges for four years (two years for the DWI and two years for the refusal); the imposition of an Interlock Device for one year, commencing on the date her driving privileges are restored; thirty days of community service; a forty-eight hour period at the Intoxicated Driver Resource Center; and an assessment of applicable fines and penalties. Defendant appealed.
The Law Division conducted a de novo review, Rule 3:23-8(a), and again convicted defendant of DWI and refusal to submit to a breathalyzer test, receiving the same sentence as municipal court. On appeal, defendant presents the following arguments:
THE DE NOVO JUDGE'S FINDING OF OPERATION CANNOT BE SUSTAINED BY SUBSTANTIAL AND CREDIBLE EVIDENCE.
A. IT WAS AN ERROR FOR THE DE NOVO JUDGE TO PLACE ANY WEIGHT UPON DEFENDANT['S]  ADMISSION.
B. THE DE NOVO JUDGE IGNORED THE ONLY DISINTERESTED EYEWITNESS'S TESTIMONY.
C. LOGIC AND COMMON SENSE DICTATE THAT DEFENDANT  WAS NOT THE DRIVER.
D. THE DE NOVO JUDGE MISUSED THE TESTIMONY CONTAINED IN THE MUNICIPAL COURT TRANSCRIPT.
DEFENDANT  CANNOT BE GUILTY OF REFUSAL WHERE THE STATE FAILS TO PROVE THE STATUTORY ELEMENTS OF N.J.S.A. 39:4-50.4(A).
DEFENDANT  CANNOT BE GUILTY OF DWI WHERE THE STATE FAILS TO PROVE THE STATUTORY ELEMENTS OF N.J.S.A. 39:4-50.
DEFENDANT['S]  CONVICTIONS FOR CARELESS AND RECKLESS DRIVING MUST BE REVERSED.
THE PROOF OF DEFENDANT['S]  EXTREME INTOXICATION IS SO STRONG THAT THE POLICY AND REMEDIAL PURPOSE OF THE IMPLIED CONSENT LAW IS NOT SERVED BY CONVICTING HER OF A REFUSAL.
Following our review of the record, in light of the arguments raised on appeal and the applicable legal standards, we affirm.
On March 11, 2007, at approximately 1:50 a.m., Officer John D. Slota of the Atlantic City Police Department responded to a radio call advising of a two-vehicle accident at the intersection of California and Atlantic Avenues. Slota arrived within seconds of receiving the call and was first on the scene. He observed two vehicles pulled onto the shoulder, the first, a Chevrolet Tahoe SUV and the second a Volvo. A gentleman, later identified as Ronald Potter was standing next to the SUV, the vehicle that had been rear-ended.
Slota approached the SUV and questioned Potter and Lauren McHugh, the SUV driver. Thereafter, Slota spoke with defendant, the owner of the Volvo, as she stood adjacent to the open passenger-side door, rummaging through the glove box and center console looking for paperwork. Defendant's intoxication was admitted. The issue challenged in municipal court and before the Law Division was whether defendant was the operator of the Volvo.
Slota testified he asked defendant what happened and she replied, "What does it look like happened? I was driving. I didn't see the truck. I crashed into the back of it." A second officer, Joseph Donatucci, arrived. Donatucci, along with Officer Jake Abbruscato, attempted to administer psychophysical tests to defendant, which she was physically incapable of performing. At another point, defendant told Donatucci she already had a DWI, she was not driving the car, and Potter was the driver. Defendant began to yell and threaten the police. Many of her comments were nonsensical. Defendant's mother arrived and spoke with her. Thereafter, Donatucci resumed his inquiry, again asking defendant what happened. Defendant responded, "I'll tell you what happened. I was driving the car. I didn't see the lady stop in front of me. I ran in the back of her." Defendant was placed in custody and advised of her Miranda*fn1 rights.
Once defendant was placed in the patrol car, Slota continued his crash investigation. He approached the Volvo to move it from the roadway. Slota observed the driver's seat was pushed close to the steering wheel, suggesting the positioning would suit a driver of defendant's stature, rather than that of Potter.
While at the police station, Abbruscato read defendant the standard form to request a breath sample. Defendant refused to provide a sample and began to rant, rave, holler, and yell obscenities. Donatucci asked her a series of questions relating to her health, several of which she answered. However, at some point, she refused to answer any further questions without a lawyer present.
The municipal court record includes McHugh's deposition. McHugh described the impact and noted that within a minute Potter was by her driver's side window. Although she believed he was driving, she could not state that fact unequivocally, as she did not see who was driving the Volvo.
On appeal, defendant argues the facts found by the Law Division are not supported by substantial credible evidence. Further, she maintains the State failed to prove operation beyond a reasonable doubt.
In a de novo review of a municipal court determination, the Law Division must make independent findings of fact and conclusions of law. It is bound by the evidentiary record of the municipal court and must give due regard to the municipal judge's opportunity to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964); State v. Loce, 267 N.J. Super. 102, 104 (Law Div. 1991), aff'd o.b., 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993), cert. denied, 570 U.S. 1165, 114 S.Ct. 1192, 127 L.Ed. 2d 542 (1994).
The scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). However, like the Law Division, we are not in a position to judge credibility and do not make any new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, supra, 42 N.J. at 161-62). We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1998), but give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Unless we determine the Law Division's finding was "'clearly a mistaken one and so plainly unwarranted... [and] the interests of justice demand intervention and correction... then, and only then,  should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Avena, supra, 281 N.J. Super. at 333 (citations omitted).
In the context of a DWI charge, courts have consistently adopted a practical and broad interpretation of the term "operation," as used in N.J.S.A. 39:4-50(a), in order to express fully the meaning of the statute. State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S.Ct. 768, 98 L.Ed. 2d 855 (1988); State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993). "Operation may be proved by any direct or circumstantial evidence -- as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). Additionally, "'[o]peration' may be proved by actual observation of the defendant driving while intoxicated, by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, or by defendant's admission." State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005) (internal citations omitted).
Finding McHugh could not say who was driving the Volvo and crediting the testimony of the police officers, the Law Division judge determined:
People don't admit to driving or doing anything wrong, committing a crime, I don't think, unless there's the truth behind it.... I think that there's certain facts that are important. The seat was up. I don't think it came up. There's no proof that it came up because of an impact.... I think it's evidential that the seat was set where it would fit the defendant and not a larger man. It's evidential to me that when [defendant's] mother came over and they spoke for a few minutes, shortly right after that [defendant] stated again what happened and acknowledged the incident. Commonsense and logic tells me that [defendant] was the driver and that nobody else drove that car into that car in front, as far as I'm concerned and I find her guilty as charged.
The record contains sufficient credible evidence to uphold the Law Division's findings and conclusion sustaining defendant's conviction. The vehicle belonged to defendant, she twice admitted she was driving and had not noticed the stopped SUV, and the driver's seat was adjusted to fit her height, not Potter's.
We find unpersuasive defendant's assertions that her confession was unreliable in light of her extreme intoxication and that McHugh's disinterested testimony cast reasonable doubt on whether Potter was the driver. Immediately after the accident, defendant was lucid enough to search for her documentation in the glove box, she responded to police she was the driver, and when asked to take a breathalyzer, she refused stating she wanted to speak to her father. While defendant made other outlandish statements, such as accusing Slota of driving her car and causing the accident, the comments actually were designed to suggest she was not driving, as defendant was aware this would be her second DWI offense. Regarding McHugh, her statements concerning Potter were not based on observation but rather speculation. As the Law Division judge observed, "[d]espite a lengthy deposition and much questioning,... the thrust of [McHugh's] testimony was that she really didn't see who was driving."
Having reached this determination, the remainder of defendant's arguments on appeal are not of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).