On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4832.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 5, 2011
Before Judges Cuff and Simonelli.
This appeal has its genesis in a night of drinking at a local bar. Defendant Manaf Stas and Joseph Putz, known to each other as regular patrons of the bar, left together. Defendant offered to drive Putz home. Following an accident, Putz was charged with driving while intoxicated and defendant Stas was charged with allowing another to operate a motor vehicle while under the influence of alcohol, in violation of N.J.S.A. 39:4-50(a). Tried together, both were convicted in municipal court of the charged offenses.
Defendant sought de novo review in the Law Division. The judge found defendant guilty of the charge. We affirm.
This case hinges on conflicting versions of a drive home from a bar. It is undisputed that on April 16, 2008, defendant arrived at Duffy's Tavern (Duffy's) in Paterson after drinking two beers at another location. While at the bar, defendant consumed an additional beer. Also present at Duffy's that night was Putz, who consumed at least six beers over the course of the night. The two men recognized each other from previous nights at Duffy's, and despite having never spoken before April 16, 2008, defendant offered to drive Putz home when the bar closed at approximately three o'clock in the morning. The two men entered the green Dodge van defendant had borrowed from his sister and began the short trip to Putz's home in Hawthorne.
In the municipal court, the responding police officer testified about his observations, his investigation, and statements made to him by co-defendant Putz. At approximately 3:15 a.m. on April 16, 2008, Hawthorne Police Sergeant Jeff Vanderhook was dispatched to Pasadena Place, where a green van rested disabled in the middle of the road. The van had front-end damage to both the passenger side cab and the passenger side front tire. Nearby a red sedan had been pushed onto the apron of the sidewalk. The red sedan had damage along its driver's side, and the green van had visible traces of red paint in its damaged areas.
Vanderhook observed defendant and Putz walking around the disabled green van. At trial, Vanderhook testified that Putz approached him and stated that he had been driving home from Duffy's, and the vehicle had suffered a flat tire. Vanderhook observed that Putz smelled of alcohol and was unsteady on his feet. When asked if he had been drinking, Putz told the officer that he had consumed six beers. Vanderhook administered a battery of field sobriety tests. Because Putz could not safely complete them, he was instructed to sit on the curb. Based on Putz's perceived intoxication and his statement, Vanderhook concluded that Putz had operated the vehicle while intoxicated and arrested him. Meanwhile, other officers had arrived in support and questioned defendant.
Vanderhook transported Putz to the police station. During the trip, Putz elaborated and explained that defendant had initially driven the vehicle after leaving Duffy's. Putz told defendant to pull over so he could operate the van because defendant could not control the vehicle. At the police station, Putz submitted to a breathalyzer. His blood alcohol content registered .14% and .15%. Vanderhook also determined that the green van belonged to defendant's sister.
Both Putz and defendant testified at trial. Their version of the night contradicts Vanderhook's. Putz corroborated that he had been drinking heavily the night of the incident, and that he had accepted a ride home from Duffy's with defendant. However, Putz testified that defendant was the driver. Putz explained that defendant failed to follow some of Putz's directions and hit a parked car. Putz told defendant to pull over, and the police arrived while the two men were assessing the damage. Putz claimed that Vanderhook approached him, and when Vanderhook "assumed that I was driving[,] I kind of went with it." Putz believes he was not acting rationally when he confessed to being the driver and lied to the officer because he had been drinking.
Defendant's testimony corresponded with Putz's. Defendant testified that he was driving from Duffy's, lost control of the van when it suffered a flat tire, and hit the parked, red sedan. Defendant remembered the officer arrived soon after the accident, and the officer initially approached and spoke with Putz. Defendant claims that while Putz was being questioned, he was asked to remain on the other side of the street where he observed Putz's arrest. Defendant did not intervene as Putz was arrested. When auxiliary officers arrived, defendant was questioned and allowed to walk home from the scene.
After hearing this testimony, the municipal court judge found Putz's admission at the scene "unsolicited" and credible. By contrast, she found his recantation at trial eleven months later unreasonable. She also found Vanderhook credible and defendant's testimony not "credible." The judge found defendant guilty of permitting Putz to operate a vehicle that was under defendant's control.
The Law Division judge found defendant guilty as charged. In doing so, the judge discussed defendant's silence at the scene and considered it an admission. The judge also found the testimony of both defendant and Putz lacked credibility because "it's mind boggling to me that two individuals who admittedly did not know each other well would, then, have one individual take the blame . . . ." The Law Division judge found Putz's explanation that he confessed because he was confused illogical, and the judge could not "accept the explanation given by [defendant] at trial that later on he felt some type of moral reason to say that he was driving." Instead, the judge classified defendant's testimony and Putz's recantation as convenient and self-interested because by altering his position months later defendant insulated himself from a drunk-driving charge because the opportunity to conduct a breathalyzer test had long since passed. ...