August 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PATRICK REO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 3-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012 -
Before Judges Axelrad and Sapp-Peterson.
In this appeal, the sole issue for our resolution is whether the State proved beyond a reasonable doubt that defendant was operating a motor vehicle at the time he was arrested and charged with driving while under the influence (DUI), N.J.S.A. 39:4-50. On appeal de novo from the Sayreville Municipal Court, where the municipal judge found defendant guilty of DUI, the Law Division judge found the evidence persuaded him, beyond a reasonable doubt, the State proved operation. We affirm.
At trial, one witness, Patrolman Matthew Barcheski testified on behalf of the State. Officer Barcheski testified, without any objection from defendant, he, along with two other officers, were dispatched in search of defendant whose girlfriend reported he had just taken her 1999 Ford Explorer without her permission. She indicated defendant was a regular at three places, one of which was the Road House, located on Route 35. Upon arriving at that location, the officers observed defendant seated in the driver's seat of the Explorer with the engine running. There were no other occupants in the vehicle or anyone else in the vicinity of the vehicle. When defendant exited the vehicle at the officers' request, he stumbled out and smelled of alcohol. Defendant presented no witnesses. In addition, the parties stipulated to an Alcotest reading of 0.26.
At the conclusion of the State's case, the defense moved to dismiss the charges, arguing the State failed to prove operation. The municipal court denied the motion, finding that the elements of operation, namely, defendant's actual operation and intent to drive, had been proved by the State beyond a reasonable doubt. The Law Division judge, based upon his de novo review of the record, reached the same conclusion, that is, that defendant intended to operate the vehicle. The court found defendant guilty of the offense and sentenced him to a 180-day custodial sentence, a ten-year loss of driving privileges, and additional fines and penalties.*fn1 The present appeal followed.
Operation or intent to operate a motor vehicle is an element of the offense the State must prove beyond a reasonable doubt. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005). The term "operates," as set forth in N.J.S.A. 39:4-50(a), has been broadly interpreted. State v. Tischio, 107 N.J. 504, 513 (1987); State v. Mulcahy, 107 N.J. 467, 478 (1987); State v. Sweeney, 40 N.J. 359, 360-61 (1963); Ebert, supra, 377 N.J. Super. at 10. "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). In determining what constitutes operation, our courts have adopted a practical and common sense approach. Tischio, supra, 107 N.J. at 513; State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993). As our Court stated nearly fifty years ago: a person 'operates' -- or for that matter, 'drives' -- a motor vehicle under the influence of intoxicating liquor, within the meaning of N.J.S.A. 39:4-50 and [N.J.S.A.] 39:4-50.1, when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle[.] [Sweeney, supra, 40 N.J. at 360-61.]
Thus, the Court in Sweeney found that evidence of intent to drive or "intent to move the vehicle" satisfied the statutory requisite of operation without the necessity of having to actually move the vehicle. Ibid.
Here, the evidence revealed that within minutes of the report that defendant had just taken his girlfriend's vehicle without her permission, police found defendant in the parking lot of the Road House, seated behind the steering wheel of the 1999 Explorer, with the engine running. There were no other persons present in or within the vicinity of the vehicle. The weather at that time, early May, would not suggest the need for heat or air conditioning. Police observed defendant stumbling out of the car and detected a strong odor of alcohol from defendant. Finally, the parties stipulated to the 0.26 Alcotest reading. This evidence constituted circumstantial evidence of both defendant's intent to operate and actual operation of the motor vehicle while under the influence of alcohol.
A conviction may be based entirely upon circumstantial evidence, if that evidence convinces the trier of fact of a defendant's guilt beyond a reasonable doubt. See State v. Kay, 151 N.J. Super. 255, (Cty. Ct. 1977) (finding the defendant guilty of leaving the scene of the accident based upon the "absence of evidence" that the defendant's car had been loaned to another person or had been stolen on the night when the defendant's car was involved in a two-car hit-and-run accident, and where the victim had identified the defendant as the driver). "'[I]ndeed in many situations circumstantial evidence may be 'more forceful and more persuasive than direct evidence.'" State v. Mayberry, 52 N.J. 413, 437 (1968) (quoting State v. Corby, 28 N.J. 106, 119 (1958)), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).
When an appeal is from the municipal court to the Law Division, the review is de novo on the record. R. 3:23-8. The Law Division makes a new decision on its own, "giving due, although not necessarily controlling regard to the opportunity of the [municipal judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). Since the Law Division judge is not in a position to judge the credibility of witnesses, the judge should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999). The standard of review we employ in this court is to determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, supra, 42 N.J. at 162. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).
Measured against these standards, we discern no basis to disturb the Law Division judge's decision. We are satisfied there is sufficient credible evidence in the record that proved defendant's operation of the vehicle, within the meaning of N.J.S.A. 39:4-50, beyond a reasonable doubt.