On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 58-07.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Yannotti and LeWinn.
Following a trial de novo in the Law Division, defendant was found guilty of refusal to provide breath samples, N.J.S.A. 39:4-50.2. He has appealed from that conviction. The State has cross-appealed from the sentence imposed by the Law Division, contending it was an illegal sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction but remand for resentencing.
Shortly after one o'clock on the morning of April 24, 2007, several members of the Union City Police Department responded to the apartment complex known as Troy Towers, located at 380 Mountain Road in Union City, to a report of a motor vehicle accident involving a possibly intoxicated driver. Four members, Officers Gonzalez, DePinto, D'Andrea, and Sergeant Botti, testified at the subsequent proceedings in Union City municipal court. Officer Gonzalez was the first on the scene. She said that she came upon defendant sound asleep on a bench near the security guard's booth. Witnesses estimated the distance between the bench and the spot where defendant's car had been left at between twenty and forty feet. Defendant's car was not in its assigned spot in the garage and had been left facing the wrong way. The keys were in the ignition but there was no testimony from anyone who saw defendant operating the car.
Officer Gonzalez had difficulty awakening defendant. Once she roused defendant, she and the other officers came to the conclusion that he was intoxicated. His face was flushed, he smelled of alcohol, and he was belligerent. He refused to perform any of the field sobriety tests without first consulting an attorney. Sergeant Botti directed that defendant be placed under arrest and taken to police headquarters. At police headquarters, the police read to defendant the standard statement seeking his consent to provide breath samples. Defendant, however, refused to do anything without first consulting with an attorney. He was then charged with violating both N.J.S.A. 39:4-50, driving while intoxicated, and N.J.S.A. 39:4-50.2, refusing to provide breath samples.
At the conclusion of the State's case in municipal court, defendant moved for a directed verdict on both charges. The trial court granted defendant's motion to dismiss the charge of driving while intoxicated, there being no proof that defendant had operated the vehicle. It denied, however, the motion to dismiss the charge of refusing to provide a breath sample and found defendant guilty of that offense. State v. Wright, 107 N.J. 488, 490 (1987) (holding that actual operation of a vehicle is not an element of N.J.S.A. 39:4-50.2; it is sufficient if the police had probable cause to believe the defendant had been driving while intoxicated).
Defendant appealed to the Law Division and, in addition to the record of the municipal court trial, the parties submitted the following stipulated facts: the parking garage for Troy Towers included 345 parking spaces; the garage was constructed on four levels; residents of Troy Towers enter the parking garage through use of an access card with a photo identification; and visitors and tradesmen were not generally permitted to park in the garage. The parties also stipulated that parking in the garage was controlled by the following regulations:
23. The upper south parking lot is for guest parking. In order to park in this lot, the guest must register his or her vehicle with the Concierge (name of resident & apartment number, make of car, color, and license number). The Concierge will allocate a space and provide the Guest with a Parking Permit, which must be visible from the outside of the vehicle at all times.
23.3 Guest parking is not for use by ...