May 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSHUA K. PUTZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Municipal Appeal No. A-18-08-Y18.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 29, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Joshua Putz appeals from his conviction of driving under the influence of alcohol (DUI), N.J.S.A. 39:4-50.*fn1 His driver's license was suspended for seven months and he was required to report to the Intoxicated Drivers Resource Center for twelve hours and pay a $307 fine, $33 in costs, $200 as a DUI fee, $50 Violent Crime Compensation Board assessment, and a $75 Safe Neighborhoods assessment.*fn2 We now reverse.
On March 7, 2008, Lopatcong Township Police Officer Robert Stefano was on patrol, working the 7:00 p.m. to 7:00 a.m. shift. At 2:00 a.m. on March 8 he was driving a patrol car northbound on Route 519 heading towards Route 57 just before a tunnel. He observed a vehicle parked in a gravel turnaround on the side of the road heading northbound just before the tunnel about five feet from the fog line with its lights on and the engine running, an unusual observation at that hour of the morning. Although he had driven through this area more than once since 7:00 p.m., he had not previously observed the vehicle. He did not know at what points in time he drove through this area that evening. The officer did not know whether the turnaround was on private or county property, but it was about fifteen feet from a long driveway going up to a horse farm. The turnaround was used to park tractor-trailers that drop off livestock at the horse farm. Stefano pulled in behind the vehicle and activated his emergency lights to check on the welfare of anyone inside.
Stefano observed one person in the vehicle, exited the patrol car, observed exhaust coming from the tailpipe, and approached the driver's side window. Defendant was asleep in the driver's seat, slouched over with his head tilted towards his lap and to the side. His feet were on the floor close to the gas pedal and brake. Because he could not see the driver breathing, he knocked on the window a few times to awaken him but was unsuccessful. Observing that the door was unlocked, he opened it, detected a strong odor of alcohol, heard the driver snoring, and poked him in the shoulder several times before he woke up. When Stefano asked defendant if he was alright, defendant said, "Hey," and then nodded his head. Stefano asked defendant for his driver's license and at that time noticed that the vehicle was a manual transmission and that the parking brake had not been set. Stefano asked defendant several times to set his brake and turn off his vehicle before he complied. Defendant, with some difficulty, then handed Stefano his license, registration, and insurance card.
The officer asked defendant if he had been drinking, to which he offered the standard reply that he had one or two drinks. When asked why he was parked there, defendant said he was waiting for his buddy. He also said that he had been at the Applebee's Restaurant in Phillipsburg. Stefano asked defendant to step out of his vehicle to perform field sobriety tests. Defendant stipulated that the subsequent breathalyzer test demonstrated that he was under the influence of alcohol at the time it was administered with a reading of 0.14.
Defendant and several of his witnesses testified at the suppression hearing and at the subsequent trial, which immediately followed the hearing.*fn3 Defendant testified that he was parked in the middle of the turnaround and that he had permission to park there, which he did on the evening of March 7. He intended to stay at the farm that night and had confirmed with his friend, Kim Gapinski, that she would be there. His friend Jeffrey Hackett picked him up and they went to Applebee's Restaurant on March 7 and remained there until around 11:00 p.m., when Hackett took him back to his vehicle. In the meantime, defendant's vehicle was being used by another friend, Patrick Fletch, who used it to go to Washington Township between 8:00 and 10:00 p.m.
When Hackett dropped defendant by his truck sometime between 11:30 p.m. and midnight, defendant relieved himself in the woods and then returned to his truck, where he sat because he was cold. On further questioning, he stated that Hackett dropped him off around 11:00 p.m. and that he hung out on his tailgate until midnight because he assumed that Gapinski would be cleaning the horses or taking care of something on the farm. He then turned his truck on to get some heat and made a call to Gapinski at 12:12 a.m. to come out and get him, but she did not answer the phone and he fell asleep.
Tuesday Remsburg, who leased the farm from the owner, required him to call her or one of her customers before he entered the farm; defendant had complied the twenty or more times he stayed there. Defendant acknowledged that the farmhouse was close enough to the road to walk there from his truck, but he did not do so because he had had quite a few beers to drink and he did not want to interrupt anyone riding their horses, since they were doing training lessons all night. He also testified that he would rouse the dogs, which would begin barking and then the sensor lights on the barn would come on. Defendant denied driving his truck after Hackett dropped him off, or even attempting to drive it.
Next to testify was Jeffrey Hackett who related that defendant met him at Hackett's place of business on March 7 between 6:00 and 7:00 p.m. Defendant had a couple of beers there and around 8:00 p.m. they each drove to the turnaround on Route 519 just before the tunnel, where defendant parked his truck so Fletch could borrow it, and they went to Applebee's Restaurant together in Hackett's Explorer. They arrived at the restaurant a little after 8:00 p.m. and stayed there until roughly 11:00 p.m. Todd Jason was also at the restaurant.
When Hackett dropped off defendant sometime after 11:00 p.m., defendant assured him that he was not going to drive the truck and that he was going to call Gapinski and stay on the farm. Hackett noticed that defendant's truck had been moved from its initial position in the turnaround. Defendant did not have his cell phone with him at the restaurant, but was going to retrieve it from his truck to call Gapinski. Hackett knew that defendant had to call before he went up to the farm so as not to spook the horses.
Jason testified that he had known defendant for ten years and had seen him at the Applebee's Restaurant in Phillipsburg on the evening of March 7. Jason had been sitting at the bar since 7:00 or 7:30 p.m. and saw defendant and Hackett arrive. He did not know how much defendant drank, but he did see Hackett and defendant leave around 11:00 p.m. Jason followed them out and watched them get into Hackett's Explorer, defendant on the passenger side, and drive away.
Remsburg testified that she was familiar with Route 519, a two-lane roadway. Defendant was allowed to park in the turnaround, which she understood was on the property she leased. If he wanted to stay overnight, he was required to call either her; Megan, who lives on the farm; or Gapinski, who stays overnight sometimes. Defendant had probably stayed overnight twenty times or so. Defendant had parked his truck in the turnaround previously and he would let Megan or Fletch use it. She requires defendant to call before staying overnight because she has a tenant on the farm who has a daughter and Remsburg likes to know who is on the property because she does not live there herself. She does not allow people to drive down toward the barns at 8:00 p.m. if she is giving lessons.
Finally, Gapinski testified that she first met defendant around Christmas 2007. She, too, reiterated that defendant was required to call before staying overnight at the farm so they know who is going onto the property because they cannot see the entrance to the driveway from the farm. Early on March 7, defendant called Gapinski and told her that he would be parking his truck in the turnaround and that he and Hackett would be going out together. She had seen him park there before and Fletch would sometimes use his truck. When she woke up Saturday morning, March 8, she saw that she had missed a call from defendant at 12:12 a.m., but he had not left any voicemail message. She further testified that she had been told by the owner of the farm, Chris, that the turnaround was on his property and that it was built for the farm to pull trucks and trailers out because they could not make the right-hand turn into the tunnel. She thought defendant may not have asked to stay overnight when she spoke with him earlier in the day because he may not have thought he was going out drinking. They do not like him to drive his truck down the driveway at night because it gets all five dogs barking. Like Remsberg, Gapinski believed defendant had stayed at the property around twenty times.
The Municipal Court judge found as undisputed facts that defendant was sitting in his car, he was intoxicated with a blood alcohol level of 0.14, the lights of his truck were on, the motor was running, and the parking brake was not set. He noted that Hackett was the only witness who completely corroborated defendant's story. Gapinski did not know what happened and could only say that defendant was supposed to call if he was going to stay at the farm and that he did call at 12:12 a.m. on March 8, but she did not know why. The judge found that Jason did not say anything particularly relevant except to corroborate defendant's arrival at and departure from Applebee's as a passenger in Hackett's truck. The judge further found that Remsburg also did not know anything about the incident except that defendant stayed at the farm sometimes and that she wanted to know when he was going to be there.
The judge stated that he did not find the testimony of defendant and Hackett credible, although he did not say why that was so. He did not find that any other witness lacked credibility. He found as a fact that defendant moved his truck because it was not in the same place as it had been when he dropped it off, as defendant and Hackett testified. He also found as a fact that defendant intended to drive the truck down the lane to the farm because he was not going to walk down there with the dogs in the cold and the rain. He also found that the only reason defendant did not drive down the lane was because he fell asleep at the wheel.
The Law Division judge on de novo review deferred to the credibility determination by the Municipal Court judge and found the facts from the evidence. He distinguished State v. Daly, 64 N.J. 122, 124 (1973), on the ground that Daly was sleeping in a reclined driver's seat whereas defendant's seat was upright. He also pointed out that defendant did not tell Stefano that he was sleeping but, rather, that he was waiting for someone. He found the fact that the parking brake was not set further weakened defendant's claim that he had no intention of driving his truck. He concluded that the Municipal Court judge properly inferred from the evidence that defendant intended to move his vehicle. Thus, he convicted defendant of DUI and imposed the same sentence. This appeal followed.
Defendant raises a single issue on appeal:
THE STATE FAILED TO PROVE DEFENDANT "OPERATED" THE VEHICLE OR HAD THE INTENT TO "OPERATE" THE VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL.
The scope of our appellate review in this case is limited. Municipal court decisions are appealed first to the Law Division. R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division conducts a trial de novo on the record developed in the municipal court, pursuant to Rule 3:23-8. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). The Law Division judge is bound to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964); State v. Locurto, 157 N.J. 463, 474 (1999). Deference, however, does not mean adherence and the Law Division judge may reach a different result. Locurto, supra, 157 N.J. at 473.
The scope of our review is more limited. We must review the record in light of the defendant's contention that the trial court erred in deciding the facts, "but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." Johnson, supra, 42 N.J. at 161. We must "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.
"The aim of the review at the outset is rather to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. This involves consideration of the proofs as a whole . . . ." Id. at 162. Like the Law Division, we are not in a good position to judge credibility and should not make new credibility findings. Id. at 161.
When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal. That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect. [Id. at 162.]
It is generally "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Locurto, supra, 157 N.J. at 471.
But if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways --from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-evaluation of crucial evidence, a clearly unjust result, and many others. This, then, is when and how the permissive power of R.R. 1:5-4(b)*fn4 should be utilized by the first appellate tribunal and is what our prior cases mean no matter how they have expressed it. [Johnson, supra, 42 N.J. at 162 (citations omitted).]
Here, the Law Division judge acceded to the Municipal Court judge's credibility assessments. The Locurto Court has observed that the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error. [157 N.J. at 474 (citations omitted).]
We are satisfied that such a showing of error has been made here. Initially, we are troubled that the Municipal Court judge made a credibility determination respecting defendant's testimony after argument on the suppression motion. He stated that defendant's testimony respecting the location of his truck visà-vis the roadway was not credible, that "[h]is whole story doesn't make any sense at all to be perfectly honest with [you]." The judge also said, "It's a completely absurd story," although he later said that he would keep an open mind with respect to the issue of operation. We do not believe that he did so.
Many of the details of defendant's story were corroborated by other credible witnesses, yet the judge never modified his initial credibility determination. For example, Remsburg and Gapinski confirmed defendant's testimony that he had permission to park his truck in the turnaround and that he had done so many times before March 7. Gapinski confirmed that, as defendant testified, he called her earlier in the day to be sure she would be at the farm. Jason confirmed that defendant and Hackett arrived at the Applebee's together around 8:00 p.m. and left around 11:00 p.m. Jason also confirmed that defendant was a passenger in Hackett's truck when they left and no evidence raised a dispute respecting Hackett's and defendant's testimony that Hackett drove defendant back to his truck.
Although there was no corroborating evidence respecting defendant's activities between the time he was dropped off at his truck and his cell phone call to Gapinski at 12:12 a.m., his explanation for sitting in his truck rather than going down the lane to the farm was echoed by Gapinski and Remsburg, who testified that he was not permitted to enter the farm without speaking with someone before he did so and they did not like him driving his truck down the lane at night because it would get all the dogs barking. In fact, Remsburg testified that he complied with this requirement the twenty or so times he stayed at the farm, as did Gapinski. Although Remsburg could not confirm that defendant loaned his truck to Fletch on March 7, she confirmed that he did so from time to time, as did Gapinski.
It is not clear why the judge did not find Hackett credible, other than the fact that he corroborated defendant's "absurd" story, because the judge did not explain what in his demeanor or his testimony was not credible, and it was only defendant's "story" that the judge found "absurd." The only relevant part of Hackett's testimony that was not corroborated by Jason, Gapinski or Remsburg was his testimony that defen- dant's truck had been moved between the time he picked him up and dropped him off, but that testimony is relevant only to whether Fletch actually borrowed the truck, not whether defendant operated it. The only relevant part of defendant's testimony that was not corroborated by Remsburg, Jason, Gapinski, and Hackett was what defendant did between the moment in time when Hackett dropped him off by his truck and the time when the officer aroused him from a stupor.*fn5
Although the judge found as a fact that defendant moved his vehicle, there is simply no record evidence to support that finding as the testimony respecting the movement of the truck related only to what happened to the truck while defendant and Hackett were at Applebee's. Had defendant moved the truck after he returned from Applebee's, Hackett would not have seen it in a different position. More troubling is that any movement of the truck was found at all with the testimony of defendant and Hackett rejected as not credible. Without that testimony, there was no evidence of movement of the truck at all and the conviction based on actual operation cannot be sustained. Thus, we can affirm only if defendant intended to move the vehicle.
The Supreme Court first considered the issue of intent to drive in State v. Sweeney, 40 N.J. 359 (1963). Over a vigorous dissent by Justice Francis, the majority concluded that intent to drive was demonstrated because the police officer found the defendant sitting in his properly parked car on a city street with the motor running. Id. at 361. At trial, the defendant stipulated that he was intoxicated, he turned the ignition key, and started the motor. Ibid. The majority concluded that the trial judge "could clearly infer" intent to move the vehicle from such evidence. Ibid.
That case was followed by Daly, supra, 64 N.J. 122. There, the defendant was found sitting in the driver's seat of his car with the motor running at 3:20 a.m. in the parking lot of a tavern. Id. at 124. The lights were off and the seat was "slightly reclined." Ibid. (footnote omitted). As the officer shined a light on the defendant, he looked up. Ibid. The officer testified that the defendant had not been asleep at the time. Ibid. The "[d]efendant told the officer he was sitting in the car to keep warm and intended to drive home in a little while." Ibid. The defendant testified that he had left the tavern between twelve and twelve-thirty in the morning, "he realized he had too much to drink and decided to 'sleep it off.'" Ibid. He got into his car and reclined the seat, and fell asleep. Ibid. He was awakened a few times by the cold and started the engine. Ibid. He was sound asleep when the officer awakened him and he told the officer he had no intention to drive, but was arrested anyway. Id. at 124-25.
Under the facts of this case, the Supreme Court concluded that the mere evidence that the defendant started the engine was not sufficient to sustain a conviction under N.J.S.A. 39:4-50. Daly, supra, 64 N.J. at 125. "[E]vidence of intent to drive or move the vehicle at the time must appear." Ibid. (emphasis added). There was no evidence of intent where Daly "'sat behind the wheel with the engine running for a considerable length of time, using the engine only to power the heater in the car but with no intent to move the vehicle.'" State v. Mulcahy, 107 N.J. 467, 477 (1987) (quoting State v. Stiene, 203 N.J. Super. 275, 278 (App. Div.), certif. denied, 102 N.J. 375 (1985)).
The Supreme Court again considered intent to operate in Mulcahy, supra, 107 N.J. 467. The police observed the defendant stagger out of a tavern toward a car parked illegally on the sidewalk in front of the tavern, enter the vehicle, and put the keys in the ignition. Id. at 470. A police officer reached into the car, took the keys out of his hand, and arrested him. Ibid. After acknowledging the case required "line-drawing on a very difficult set of facts," the Court concluded, when one enters a car and puts one's self in the driver's seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation, at least sufficient to warrant an arrest for purposes of submission to the sobriety test required by N.J.S.A. 39:4-50.4a. [Id. at 479.]
The Court reemphasized that a sobriety test may be required "only [(1)] of a person properly suspected of being under the influence [(2)] who is in actual physical control of a vehicle and [(3)] has started to place the car's machinery in operation, [(4)] intending to drive it on a public way." Id. at 481. The Court concluded that the police did not have to wait for the defendant to turn the ignition key in order to require him to submit to a breathalyzer test and reinstated the conviction for refusal. Id. at 469.
Later that term, the Court decided State v. Tischio, 107 N.J. 504, 507 (1987), appeal dismissed, 484 U.S. 1038, 108 S.Ct. 768, 98 L.Ed. 2d 855 (1988), a case where the arresting officers observed actual operation and conviction was based on breathalyzer results. After discussing relevant case law, the Court observed, "We are thus strongly impelled to construe the terms of N.J.S.A. 39:4-50(a) flexibly, pragmatically and purposefully to effectuate the legislative goals of the drunk-driving law." Id. at 514.
In Stiene, supra, we affirmed the defendant's DUI conviction. 203 N.J. Super. at 280. A prospective purchaser of the defendant's car took it for a drive, but it ran out of gas close to the defendant's home. Id. at 276-77. The defendant tried to move it, "and then later without the key and in an admittedly intoxicated state, he had his mother use another vehicle to attempt to push the car in question back to his house," but the car could not be moved because the gear-shift lever popped back into park, causing an accident. Id. at 277. The defendant told the officer that he was being pushed by his mother. Ibid.
We held that "when one in an intoxicated state places himself behind the wheel of a motor vehicle and not only intends to operate it in a public place, but actually attempts to do so (even though the attempt is unsuccessful) and there is the possibility of motion, he violates the statute." [Id. at 279.] We concluded that the evidence proved intent to operate the vehicle and a "concerted attempt" to do so. Ibid. We also rejected the defendant's contention that he could not be convicted of operating an inoperable vehicle, ibid., because the vehicle was operable in the sense that it could be rolled or pushed, id. at 280.
We have recently distilled extant case law regarding operation as follows:
"Operation" may be proved by actual observation of the defendant driving while intoxicated. State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976); by observation of the defendant in or out of the vehicle under circumstances indicating the defendant had been driving while intoxicated, Mulcahy[, supra,] 107 N.J.[ at] 476 . . . ; [State v. ]Morris, 262 N.J. Super. [413,] 419-20 [(App. Div. 1993)]; . . . Sweeney, [supra,] 77 N.J. Super. [at] 521 . . . ; State v. Witter, 33 N.J. Super. 1, 5-7 (App. Div. 1954); or by defendant's admission, State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant's conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 106 (1981); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974) (affirming defendant's conviction based on his admission to drinking and driving when the police woke him up in his parked car on Interstate 287); State v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960) (affirming defendant's conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found "buried full length in some shrubbery and lilac bushes["]). [State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005).]
Here, defendant's denial of any intention to drive was at least circumstantially corroborated by the testimony of other witnesses whom the judge found credible. The testimony of Stefano alone cannot support a finding beyond a reasonable doubt that defendant intended to operate his vehicle at the time of his arrest, as required by Daly, supra, 64 N.J. at 125, and Prociuk, supra, 145 N.J. Super. at 573. He was in such a deep stupor at 2:00 a.m. when he was arrested that he could not have had any such intent. He certainly made no movements or statements to the officer suggesting that he intended to operate that truck at the moment of arrest. Furthermore, the evidence clearly suggested that he had been soundly asleep for several hours when Stefano finally roused him because he had made no further calls to Gapinski after 12:12 a.m.
The conclusion that defendant intended to move the vehicle cannot have been made with respect to the moment of arrest, but must have been predicated upon his "intent" before he fell asleep. We are not persuaded by the Law Division judge's reliance on the fact that the parking brake was not set, defendant's seat was not reclined, and he did not tell the officer that he was sleeping, but rather that he was waiting for his buddy as sufficient to infer that he had an intent to operate his vehicle at some unspecified point in time. This evidence is simply insufficient to support a reasonable inference of intent to operate given defendant's prolonged stupor. In any event, we have found no reported decision sustaining a conviction based on an intent long since dissipated by the time of arrest and see no valid basis for distinguishing the facts in this case from those found insufficient in Daly, supra, 64 N.J. at 125, and Prociuk, supra, 145 N.J. Super. at 574.