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State of New Jersey v. Herlan Avella

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 23, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERLAN AVELLA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4839.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 31, 2011

Before Judges Kestin and Newman.

Defendant appeals from a Law Division judgment, on appeal de novo on the record from the Clifton Municipal Court, pursuant to Rule 3:23-8(a), convicting him of driving while intoxicated in violation of N.J.S.A. 39:4-50. The court suspended his driving privileges for nine months; imposed a fine of $400 plus costs and assessed a $200 DWI surcharge, a $50 Victims of Violent Crime Compensation Board penalty, and a $75 Safe Neighborhood Services Fund penalty; and ordered defendant to serve twelve hours at the Intoxicated Driver Resource Center. The judgment and its specifications affirmed the result previously reached.

The facts of the matter were not in dispute. At about 3:30 a.m. on November 27, 2008, a Clifton police officer found defendant behind the wheel of his car in a parking lot, with the engine running and the headlights on. Defendant was sitting upright behind the wheel, unconscious. He was unresponsive to a knock on the driver's-side door. Another police officer arrived, and the two discovered that the door was unlocked. On opening it, they detected an odor of alcoholic beverage in the vehicle. With great difficulty, they eventually succeeded in awakening defendant. After defendant awoke, the officers asked him how he was. Defendant said he was fine, that he had come from a nearby nightclub, and that he was driving his vehicle to his home in Clifton.

One of the officers asked defendant to step out of his car. He described defendant as "very shaky" and said defendant "stumbled as he was getting out of the vehicle and he fell into" the officer. At that moment, the officer "was able to detect a strong odor of alcoholic beverage emanating from [defendant's] breath."

On the officer's request, defendant produced his driving credentials, which showed that he resided in Garfield. The officer testified: "after I asked him where he was going the second time[,] he stated that he was going to Passaic." Defendant then acknowledged that he lived in Garfield.

The officers administered field tests for sobriety, and determined that defendant was likely intoxicated. A subsequent test, administered with defendant's consent, produced a blood alcohol content (BAC) reading of 0.15%. The result of the test was stipulated at trial.

In his testimony, defendant said that, at about 2:30 a.m., a half-hour before the nightclub was to close, he had exited the premises to get some fresh air. It was very cold, and he had left his coat inside. When he attempted to re-enter the nightclub to retrieve his coat, the bouncer told him that all departures from the premises were "final" and he would not be permitted to re-enter. Defendant went to his car to be warm. He testified that he had no intention to drive home and that he had asked his companions to do so. Nevertheless, on cross-examination, while acknowledging the stipulated 0.15% BAC result on the test that had been administered, he stated that he had consumed one alcoholic beverage since his arrival at the nightclub at 10:00 p.m. earlier that evening.

The single point advanced on appeal mirrors the arguments presented before both the Clifton Municipal Court and the Law Division:

THE STATE FAILED TO PROVE [DEFENDANT] GUILTY OF ALL OF THE ELEMENTS OF THE OFFENSE BEYOND A REASONABLE DOUBT. THE JUDGMENT OF CONVICTION SHOULD BE VACATED AND THE MATTER REMANDED TO THE MUNICIPAL COURT FOR THE ENTRY OF A JUDGMENT OF ACQUITTAL.

The essence of the position is that the State failed to prove operation of the motor vehicle.

We review the Law Division judgment, State v. Johnson, 42 N.J. 146, 161-62 (1964) giving due regard, as the Law Division must, see State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000), to the credibility determinations of the judge who heard and observed the witnesses. See also, State v. Locurto, 157 N.J. 463, 471, 474 (1999); Dolson v. Anastasia, 55 N.J. 2, 7 (1969). "[W]hen the municipal court and the [Law Division] 'have entered concurrent judgments on purely factual issues,' we will not disturb those findings 'absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting Locurto, supra, 157 N.J. at 474).

Judge Honigfeld found that sufficient evidence existed of defendant's intention to operate the vehicle. The engine was running; the headlights were on; defendant was in an upright position at the steering wheel, albeit asleep; and, when wakened, he stated to the police officers a clear intent to drive home. We adopt the factual distinctions Judge Honigfeld drew between this case and State v. Daly, 126 N.J. Super. 313 (App. Div.), aff'd, 64 N.J. 122 (1973). This defendant's car seat was upright, not reclined; and rather than asserting only an intention to sleep, as the defendant in Daly had, this defendant, when questioned by the police officer said he intended to drive home. As Judge Honigfeld observed, "[t]here was no indication that [defendant] had just gone into the car to sleep and no indication to the officer that he turned the motor on simply to keep warm." The judge concluded from these distinctions and his factual analysis "that the defendant was operating the vehicle at the time."

We are in substantial agreement with Judge Honigfeld's conclusion based on the findings made, which were well-supported by the evidence and the reasonable inferences derived therefrom. Proof of "actual operation is not required to satisfy the element" of N.J.S.A. 39:4-50a that prohibits a motorist from operating a motor vehicle while under the influence of intoxicants. State v. Ebert, supra, 377 N.J. Super. at 10 (citations omitted). See also 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) (intent to move motor vehicle is "operation" under N.J.S.A. 39:4-50); State v. Mulcahy, 107 N.J. 467, 478-79 (1987). "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).

The Law Division judgment is affirmed.

20110323

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