On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 08-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2010
Before Judges Grall and Messano.
A judge of the Vineland Municipal Court and a judge of the Superior Court, on trial de novo, found defendant Tyrone Bard guilty of a third violation of N.J.S.A. 39:4-50. Due to the date of his first conviction, defendant was sentenced as a second offender. N.J.S.A. 39:4-50a(3). On appeal, defendant contends that the State's evidence was inadequate to establish that he "operated" or "intended" to operate the vehicle. Substantially for the reasons stated by Judge Geiger in a written opinion filed on June 27, 2009, we affirm.
The State's evidence was provided by Officer Greg Pacitto of the Vineland Police Department. At about 11:00 p.m. on March 30, 2007, he was directed to respond to a WaWa in Vineland. When he reached the parking lot of the convenience store, the WaWa was still open for business. The officer saw an SUV parked in the lot with its engine running, but he did not notice whether the headlights were illuminated.
Officer Pacitto approached the car. He saw that defendant was in the driver's seat and "hunched" over the steering wheel. The keys were in the ignition, and there was no one else in the vehicle. There was no evidence that defendant had been drinking in the parking lot.
Officer Pacitto knocked on the car window for about five seconds before defendant looked at him. When he did, he appeared to be startled. Officer Pacitto asked defendant if he needed help, and defendant said he did not. Detecting the odor of alcohol, a fact stipulated by the defense, Officer Pacitto asked defendant to get out of the car, and he complied. After conducting sobriety tests on the scene, defendant was taken to police headquarters. He admitted that he had consumed about six beers earlier that evening. As stipulated by the defense, his Alcotest reading was .16.
The officer did not question defendant about his driving, and defendant did not provide any information on the subject. The SUV is registered in defendant's name. Defendant did not testify.
The judges of the Municipal Court and Law Division who considered this evidence found, beyond a reasonable doubt, that the circumstantial evidence established that defendant drove his car to the WaWa parking lot while intoxicated.
The issues raised by defendant on appeal require us to determine whether the conviction is supported by "'sufficient credible evidence present in the record,' considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). In conducting that review after the "Municipal Court and the Superior Court 'have entered concurrent judgments on purely factual issues,' we will not disturb [the judges' factual] findings 'absent a very obvious and exceptional showing of error.'" Ibid. (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). The standard governing this court's review requires us to defer "unless we are 'thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
There is no question that "operation" of a vehicle may be established by observation of a defendant in a vehicle "under circumstances indicating that the defendant had been driving while intoxicated." Id. at 11 (and cases cited therein). The observations made in the circumstances of this case were sufficient to permit a conviction on that basis. Accordingly, we reject defendant's claim that the evidence was insufficient to sustain a finding of operation.
Because the evidence was adequate to support a conviction based upon operation, it is not necessary to consider whether the evidence was also adequate to support a conviction on the ground that defendant intended to drive the car from its ...