STATE OF NEW JERSEY v. ASHLEE SILVERSTEIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1108-07T41108-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ASHLEE SILVERSTEIN,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 26, 2009 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 54-07.

Barbara J. Lieberman, attorney for appellant.

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Tracey L. O'Brien, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Ashlee Silverstein, appeals from her conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of permitting another person who was under the influence of intoxicating liquor to operate her motor vehicle, N.J.S.A. 39:4-50(a), for which she was sentenced to seven months loss of driving privileges, twelve hours IDRC, and to pay a $350 fine, $33 costs, $200 drunk driving surcharge, $50 VCCB, and $75 safe neighborhood assessment. Defendant argues:

POINT I

THE SUPERIOR COURT ERRED IN FINDING SUFFICIENT COMPETENT EVIDENCE THAT THE DEFENDANT REASONABLY SHOULD HAVE KNOWN THAT THE OPERATOR WAS INTOXICATED.

POINT II

THE SUPERIOR COURT ERRED IN FAILING TO FIND THAT THE DEFENDANT TIMELY REVOKED HER PERMISSION FOR THE OPERATOR TO DRIVE HER CAR.

We reject these arguments and affirm.

Defendant arrived at her home in Mays Landing at about 1:00 a.m. on April 6, 2007. Three friends were in her home at that time, including Dwight Qawi. Qawi had been drinking for an extended period of time, first in Somers Point and then at a friend's house in Mays Landing, before he arrived at defendant's house. Qawi claimed he had gone upstairs in defendant's house before she arrived to freshen up. He said he brushed his teeth, put on some oil, and he began chewing gum. He said he did this to be sure that he did not smell like alcohol.

When defendant arrived at her home, she greeted Qawi with a kiss on his cheek. The group remained in defendant's home for more than an hour. Defendant and Qawi denied that any alcohol was consumed by anyone during that time. Indeed, defendant testified that, due to a medical condition, she was not permitted to consume alcohol and she did not keep any in her house. At some point, Qawi suggested that the group should go to Atlantic City. They all agreed. As they were walking toward defendant's car, Qawi suggested that he would drive. Defendant acquiesced without question and handed him the keys. Defendant's car was a small compact model (a Volkswagen Jetta). Defendant sat in the front seat. The other two individuals sat in the rear. The trip to Atlantic City took about fifteen minutes.

Defendant contended that throughout the entire time at her house and during the drive to Atlantic City, Qawi appeared to be fine and did not appear to her to be under the influence of alcohol. Indeed, she denied knowing that he had consumed any alcohol in the preceding hours.

When the group arrived in Atlantic City, Officer Michael O'Hala took note of the vehicle because of the unusual manner in which it was being driven. He followed directly behind defendant's vehicle for about one-half mile, and described his observations thusly:

Yes. While I was leaving 1100 North Albany, which is our police compound, it's where the tow lot is and all that, I came out onto Route 40 and stopped. And I looked at traffic coming eastbound and I saw a red Volkswagen Jetta in the right-hand lane and traffic passing by it in the left-hand lane. The traffic was moving past it pretty good and it, the traffic didn't appear like it was speeding so the vehicle in the right lane looked like it was driving extra slow. As it passed me I got behind it, I pulled out and got behind it in the right lane. And while I'm following it the vehicle is swerving to the right, crossing over the fog line into the shoulder, and then it would make a jerky movement back onto the right lane and then it would swerve a little bit. And when it came up to, just past the compound is a curve to the left, and that almost makes like an S, so the first curve the left the vehicle continued straight onto the shoulder over the fog line and then jerked back onto the right lane. And it continued around the curve and as it curved to the right it looked like it was trying to get off to the right to go maybe towards West End Avenue and it was still moving pretty slow. Then it kind of swerved back to the left to go straight onto, to cross over West End Avenue. The right turn signal came on and then went off again. And it continued to cross West End Avenue. As it got across West End Avenue I thought it was going to hit the curb on the, I guess it would be the north, I'm sorry, south, southwest corner as it's approaching. And it kind of jerked to the left and it rode along the curb swerving and still moving at a really slow pace. And then the right turn signal came on like it was going to pull into McDonald's and it shut off. And then the light turn signal came on at Crosson Avenue. And when it got to Crosson Avenue it has a green light. At the green light it came almost to a complete stop and then made the right-hand turn. And that's when I initiated a stop with the emergency lights.

. . . .

As soon as I turned the lights on and hit the air horn the vehicle sped up like it was going to continue west. And once it got past, it might be Wareno Road, it's an alley that runs behind McDonald's right there as it it's approaching Trenton Avenue, it pulled over to the right.

When he interacted with Qawi, O'Hala immediately detected a perceptible odor of alcohol emanating from Qawi's breath. He described Qawi's eyes as watery and bloodshot. When Qawi got out of the car, he was staggering and had difficulty maintaining his gait. O'Hala asked Qawi if he had been drinking, and Qawi responded in the affirmative. O'Hala subjected Qawi to a number of roadside psychophysical tests, on which Qawi performed very poorly. Qawi was arrested and taken to the police station, where he promptly passed out. His breath was tested by Alcotest, resulting in a .15% BAC reading.

According to O'Hala, when he pulled the car over, the windows were up, which would make it more likely that defendant, sitting for fifteen minutes in close quarters with Qawi would have smelled the odor of alcohol. O'Hala smelled only the odor of alcohol on Qawi. He did not smell any cigarette smoke, oil or gum. Defendant and Qawi claimed that the windows were down because Qawi was smoking.

In describing Qawi's driving, defendant testified as follows:

Q. How was Dwight driving?

A. Fine.

Q. Okay. And then what happened when you got to Atlantic City?

A. Um, he went to get a cigarette and lighter out of my change holder which is in like the middle console between the two seats and while he was fumbling around for it to find it he had swerved a little bit and, you know, I asked him if he was too tired to drive because he looked tired. And he said yeah. And we pulled over on, I think it's Albany Avenue because we were on the way to drop him off and go to the casinos. And when we pulled over like almost immediately after we pulled over the cop came up behind us and put his lights on.

Defendant denied smelling any alcohol on Qawi's breath, but smelling only the oil, cigarettes and gum.

The municipal court judge found O'Hala credible and accepted his version of the events. Included in O'Hala's testimony was his statement that "there's no possible way in my opinion that [defendant] couldn't know [that Qawi was impaired]." The municipal judge said as part of his findings: "I can't see how this person could exhibit those type of indications of intoxication all suddenly, miraculously twenty minutes after being perfectly presumably, you know, sober, at least to everybody's observations." He therefore concluded:

I find clearly that a reasonable person would know that this person is intoxicated. I don't know how you can get in a car, drive 20 minutes and get out of a car and not be able to do any of the tests and exude all the indications of being intoxicated. I can only feel that those were present at the time. . . . [T]he lady [was] sitting right next to him. Windows are up. The officer detected alcohol and she didn't? I really find that's incredible. I just don't, I really can't accept that. I'm satisfied the State has established beyond a reasonable doubt in my view that the person did allow the intoxicated individual to drive their car. . . . The man I'm satisfied based upon the testimony of the officer appeared intoxicated. The Alcotest actually bore out those observations made by the officer. [I am] [g]oing to find Ms. Silverstein guilty.

Defendant appealed and the matter came before Judge Neustadter in the Law Division. The judge acknowledged his responsibility to make his own findings of fact, but in doing so, to give due but not controlling deference to the credibility findings of the municipal court judge. Judge Neustadter found the facts to be as described by O'Hala and found by the municipal court judge. Judge Neustadter found, as did the municipal court judge, that defendant knew or should have known that Qawi was impaired while driving her vehicle. Defendant and Qawi were in close quarters, beginning with the kiss on the cheek when she arrived at her house, and certainly in the compact Jetta for fifteen minutes with the windows closed. They were conversing. The manner in which Qawi was driving as observed by O'Hala was particularly egregious, and Qawi exhibited multiple indicia of intoxication that would have been readily apparent to anyone in his presence.

Judge Neustadter rejected defendant's contention that Qawi exhibited no signs of intoxication until the very end of the trip and that she then revoked permission for him to drive her vehicle. He stated:

Having said all that, it seems to me beyond a reasonable doubt that sitting next to Mr. Qawi for the period of time that it would have taken to drive from Mays Landing to Atlantic City that Ms. Silverstein should have seen and observed enough to believe that Mr. Qawi was under the influence of alcohol. I don't think she knew it when she got into the car, but I think there was reason to be suspicious, and then as it developed his driving and the tests and the way he swerved, the vehicle was going slow, I think that a reasonable person in the position of Ms. Silverstein would have known or should have known that he was unfit to drive that car because of alcohol. I think the judge found her guilty properly for that offense.

To sustain a conviction for this offense, the State must prove beyond a reasonable doubt that the owner of the vehicle permitted a person to operate that vehicle when the owner knew or reasonably should have known the person was intoxicated. State v. Skillman, 226 N.J. Super. 193, 199-200 (App. Div. 1988); State v. Michalek, 207 N.J. Super. 340, 349-50 (App. Div. 1985). Evidence of the driver's intoxication and blood alcohol content may be used as evidence in a prosecution for this offense. State v. Gormley, 139 N.J. Super. 556 (App. Div. 1976). Even if the owner did not become aware of the permittee's intoxication until after permission to operate was given, a conviction may be sustained. Id. at 560.

On de novo review, Judge Neustadter applied the correct standard by making his own findings of fact based upon the municipal court record, giving due, though not controlling, regard to the municipal judge's credibility findings. See State v. Locurto, 157 N.J. 463, 473-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). The judge's findings of fact were substantially as we have recited them. We are satisfied from our review of the record that those findings are amply supported by sufficient credible evidence in the record as a whole, and we have no occasion to interfere with them. Further, Judge Neustadter correctly applied the controlling legal principles, and he did not err in concluding that the State proved beyond a reasonable doubt all elements of the offense.

Affirmed.

(continued)

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A-1108-07T4

February 9, 2009