On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4727.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Defendant Quintin Prioleau appeals from his driving while intoxicated (DWI) conviction, N.J.S.A. 39:4-50, in the municipal court, and again on appeal in the Law Division after a trial de novo. We affirm.
On August 5, 2006, at approximately 4:45 a.m., Officer Chris Canova of the North Haledon Police Department, while on duty, pulled into the Foodtown parking lot in Haledon, to conduct a property check. Canova observed a tan Mazda 626, improperly backed into a parking space, with defendant slumped forward in the driver's seat with the window half-way down.
Upon exiting his vehicle and approaching the Mazda, Canova immediately detected the odor of alcohol emanating from the interior of the Mazda. Defendant appeared unconscious and was holding keys in his left hand. Canova twice attempted to wake him, but to no avail. The officer then reached inside the partially open window and awoke defendant by shaking his left shoulder. As defendant lifted his head and looked up, Canova noticed that defendant's eyes were extremely bloodshot and watery. When asked for his identification, defendant presented his driver's license, and then rambled in a slurred manner. Canova then asked defendant what was going on this morning, and defendant replied that he was on his way to his job in Kearny. Defendant, however, did not respond when questioned about where he was, but answered in the affirmative when asked whether this was his usual route to work.
By this time, Sergeant Mark Rowe arrived on the scene.
Canova asked defendant to exit his vehicle. After conducting a battery of field sobriety tests, Canova "concluded that defendant was intoxicated and placed him under arrest." Defendant's keys were later used by Rowe to raise the window and by the tow truck operator who impounded defendant's Mazda.
At trial, in the municipal court, defendant's girlfriend of four years, Tania Lopez, testified that she and defendant were returning to Paterson from a party in Harlem in the early morning hours on August 5, 2006. Lopez was driving defendant's vehicle while defendant was seated in the passenger seat, as defendant had been drinking that evening. During the car ride she and defendant argued over his drinking, so she pulled into the Foodtown parking lot. Although she was unfamiliar with the area, she left defendant there, sitting in the car, and took what she thought was the only set of keys to the Mazda. Lopez claimed she had a friend pick her up and take her home.
Discrediting Lopez's testimony, the municipal court judge found defendant guilty as a third-time DWI offender, N.J.S.A. 39:4-50, and of driving while his license was suspended, N.J.S.A. 39:3-40.
After merging the offenses, the court sentenced defendant to a 180-day jail term, ninety days of which could be served in an in-patient rehabilitation program; a ten-year license suspension; and appropriate fees, fines, and penalties.
On a de novo review of the record, the Law Division judge adjudicated defendant guilty of DWI and imposed the same sentence as the municipal court. In doing so, the judge discredited Lopez's testimony and found that defendant had actually operated the vehicle. Specifically, the judge found it unbelievable that Lopez would leave defendant alone in an unfamiliar area, and he further discredited her testimony based upon the fact that defendant had possessed a set of keys for the Mazda. The court also mentioned that Lopez's testimony was not corroborated by her friend, who supposedly picked her up at the Foodtown parking lot.
The court then held that even if Lopez's testimony had been credible, defendant intended to operate his motor vehicle while under the influence of alcohol. The court based its conclusion on the fact that after Lopez had been picked up by her friend, defendant switched from the front passenger seat to the driver's seat; admitted his intent to drive to work; and actually possessed a set of car keys in his hand when Officer Canova found him sleeping and slumped in the seat. Thus, the court concluded that "there is evidence that suggests but for ...