STATE OF NEW JERSEY v. PATRICIA M. NEVAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5123-08T15123-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICIA M. NEVAN,

Defendant-Appellant.

 

Argued: April 14, 2010 - Decided:

Before Judges C.L. Miniman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 02-09-C-T13.

Richard R. Uslan argued the cause for appellant.

Anthony J. Parenti, Jr., Assistant Prosecutor, argued the cause for respondent (Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent; Mr. Parenti, of counsel and on the brief).

PER CURIAM

Defendant Patricia M. Nevan appeals from a judgment con victing her of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50a(1)(i). Summons No. H-061656 charging her with this offense was issued by the Hillsborough Police on May 30, 2008. After pleading not guilty, she filed a motion to suppress evidence, which was denied by an order entered on December 24, 2008. The trial took place on January 9, 2009, and she was con victed as charged on January 26, 2009, by the municipal judge for Hillsborough. The municipal judge imposed sentence as fol lows: $1364 in fines and costs; ten years loss of driving and registration privileges; and 180 days in the Somerset County Jail. Defendant appealed her conviction to the Law Division. Incarceration was stayed pending appeal. After denying a stay with respect to the loss of driving and registration privileges, the appeal de novo was argued on May 29, 2009. The Law Division judge also found defendant guilty of DWI and on June 2, 2009, entered a judgment of conviction that imposed the same penalties as were imposed on January 26, 2009, but this time the suspen sion of defendant's driving and registration privileges was stayed pending appeal. We now affirm.

The matter was tried on stipulated facts contained in three joint exhibits: (1) a tape recording and transcript of a police dispatch call on May 30, 2008; (2) a copy of the police drink ing-and-driving report, a three-page supplement, the alcohol influence report, and the drinking-driving questionnaire; and (3) a stipulation as to the qualifications of the operation and the foundational documents that the machine was properly working together with Worksheet A.

At about 3:27 p.m., a call was made to the Hillsborough Police Department in which the caller identified herself as Jen and stated that she was a teacher who was at the Bottle King. She reported she had just seen a blonde woman who was wearing all black clothing enter the Bottle King as Jen walked out. She reported that "she's so drunk I don't know how she drove here." She expressed that she was afraid the woman would get back in her car. The dispatcher sent a squad car to the Bottle King based on Jen's report. The dispatcher asked Jen if the woman was still in the store, and she replied that she was. He told Jen he had an officer right around the corner. Jen stated that she was still in the parking lot and the woman was still in the store. Jen soon saw the officer as he "pulled up front," and the telephone call ended.

Officer Howard entered the store and saw a woman, later identified as defendant, matching the description given by Jen. Defendant carried two containers of wine to the checkout area, paid the cashier, exited the store, staggered to an unoccupied motor vehicle, entered the front passenger side of the vehicle, sat down, and closed the passenger door. Howard inquired about the driver of the vehicle, and she replied that a friend was driving. Defendant was unable to explain where her friend was or what her name was. Ulti mately, defendant admitted to being the driver of the vehicle. Further, she stated to Howard that she had driven to the Bottle King to purchase wine.

Howard smelled alcohol on defendant's breath. He adminis tered several field sobriety tests. Defendant could not raise her foot six inches off the ground, simply raising her heel, but not her toe, during the One-Leg Stand Test. She was instructed on the performance of the Walk-and-Turn Test, noticeably swaying during the instructions. Although she was asked three times to perform this test, each time she only stood still and the test was terminated. Howard noted that defendant was "swaying, grasping for support, staggering, continually leaning for bal ance[;] her speech was slow and slurred[;] her eyes were watery and bloodshot[;] her eyelids were droopy[;] her face was flushed[;] and her clothes were mussed." Defendant was arrested and charged with DWI. Officer Russell Wilde administered an Alcotest at police headquarters, and it was determined that defendant's Blood Alcohol Concentration (BAC) was 0.27%.

The municipal court judge found, in light of defendant's admission that she drove to the Bottle King, she had driven to the store while intoxicated. He also based this finding on the observations of Jen and Howard. The judge found that defen dant's BAC was 0.27%. He concluded beyond a reasonable doubt that defendant was guilty of DWI. Because defendant had been convicted of DWI in 1991 and again in 2000, the judge sentenced defendant as a third-time offender.

The Law Division judge made similar findings of fact and imposed the same sentence as the municipal court judge. However, in doing so, he expressed that he was familiar with the Hillsborough Bottle King store, which he described for the record. He found that defendant operated the vehicle to get to the store and then described the layout of the shopping complex in which the store was located. He then found, "It's apparent to me . . . that when she returned to the vehicle, seeing two squad cars and two cops, [she] wisely decided to sit in the passenger side . . . and decided to tell the police a bogus story." He concluded that there was no intent to drive. He found there was no evidence of any bottles in the car to sug gest that defendant sat in her car and became intoxicated in the parking lot. He found a person weighing 115 pounds had to drink a lot of alcohol to have a BAC of 0.27%. He concluded that defendant became intoxicated elsewhere and drove to the Bottle King in that condition to purchase wine. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I - THERE WAS INSUFFICIENT, CREDIBLE EVIDENCE ADDUCED BELOW TO SUSTAIN THE DEFEN DANT'S CONVICTION FOR DRIVING WHILE INTOXI CATED BEYOND A REASONABLE DOUBT, NECESSITA TION A REVERSAL OF HER CONVICTION FOR A VIO LATION OF N.J.S.A. 39:4-50 AND THE ENTRY OF A JUDGMENT OF ACQUITTAL.

The court below relied upon facts (some of which were not in the record before it) and purportedly, the reasonable inferences drawn therefrom, to incorrectly conclude that the defendant operated, or intended to operate a motor vehicle under the influence of alcohol.

The scope of our appellate review in cases such as this is typically lim ited. Municipal court decisions are appealed first to the Law Division. R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division conducts a trial de novo on the record developed in the municipal court, pursuant to Rule 3:23-8. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). The Law Division judge is bound to give "due, although not necessarily controlling, regard to the oppor tunity of the [municipal court judge] to judge the credibility of the wit nesses." State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted); State v. Locurto, 157 N.J. 463, 472-74 (1999).

Deference, however, does not mean adherence, and the Law Division judge may reach a different result.

But if the appellate tribunal is thor oughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand inter vention and correction, then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judi cial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mis take must have been made. This sense of "wrongness" can arise in numerous ways from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-evaluation of crucial evidence, a clearly unjust result, and many others. This, then, is when and how the permissive power of R.R. 1:5-4(b) should be utilized by the first appellate tribunal and is what our prior cases mean no matter how they have expressed it.

[Johnson, supra, 42 N.J. at 162 (citations omitted).]

Thus, our review is limited to determining whether there is sufficient credible evidence pre sent in the record to support the findings of the Law Division judge, not the municipal court. Id. at 161-62. Generally, it is "improper for the Appellate Division to engage in an independent assess ment of the evidence as if it were the court of first instance." Locurto, supra, 157 N.J. at 471.

Defendant urges that the two-court rule does not apply here, because the matter was tried on stipulated facts and neither judge made credibility determinations. We disagree. The rule in Locurto goes beyond credibility determinations and encom passes fact-findings and inferences drawn from those facts. We must defer to "concurrent judg ments on purely factual issues," id. at 474, unless they are "so wide of the mark, a mis take must have been made," Johnson, supra, 42 N.J. at 162. Thus, we examine the evidence to determine whether there is a "manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-evaluation of crucial evidence, a clearly unjust result, and many others." Ibid.

We begin with the observation that no one, including Jen, saw defendant drive to the Bottle King. No one knew when she arrived in the Bottle King parking lot. Defendant asserts that the Law Division judge considered facts that were not in the record when he concluded that she was intoxicated before she arrived in the parking lot. She urges that this conclusion is based on mere speculation and no evidence in the record.

The judge, of course, erred in making findings of fact respecting the Hillsborough Bottle King and the shopping center in which it was located. Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960) ("A judge's private knowledge is no substitute for required proof, no matter how accurate such knowledge might prove to be."); see also State v. LiButti, 146 N.J. Super. 565, 571 (App. Div. 1977) (stating that a "judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer"). Because the Law Division judge relied on those fact-findings in deter mining defendant's guilt, we will "appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (citations omitted).

To prove a DWI charge, the State must establish that the defendant "operate[d] a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood." N.J.S.A. 39:4-50(a).

"Operation" may be proved by actual observation of the defendant driving while intoxicated. State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976); by observa tion of the defendant in or out of the vehi cle under circumstances indicating the defendant had been driving while intoxi cated, State v. Mulcahy, 107 N.J. 467, 476 (1987); [State v. ]Morris, 262 N.J. Super. [413,] 419-20 [(App. Div. 1993)]; State v. Sweeney, 77 N.J. Super. 512, 521 (App. Div. 1962)[, aff'd, 40 N.J. 359 (1963)]; State v. Witter, 33 N.J. Super. 1, 5-7 (App. Div. 1954); or by defendant's admis sion, State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant's conviction based upon his admis sion that he had been driving earlier that night after the police found his empty over turned vehi cle on the highway), certif. denied, 88 N.J. 506 (1981); State v. Dick ens, 130 N.J. Super. 73, 78 (App. Div. 1974) (affirming defendant's conviction based on his admis sion to drinking and driving when the police woke him up in his parked car on Interstate 287); State v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960) (affirming defendant's conviction based on the testi mony of two witnesses that he was intoxi cated and his admission to police that he had been driving after his car was found "buried full length in some shrubbery and lilac bushes["]).

[State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005).]

Operation with a BAC of 0.08% or more must be proved beyond a rea sonable doubt. State v. Eckert, 410 N.J. Super. 389, 402-03 (App. Div. 2009) ("[T]he DWI statute requires proof beyond a reasonable doubt of operation of a vehicle while intoxicated."). This burden of proof is described in our Model Jury Charges:

A reasonable doubt is an honest and rea sonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a rea sonable person hearing the same evidence would have.

Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant's guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every pos sible doubt. If, based on your considera tion of the evidence, you are firmly con vinced that the defendant is guilty of the crime charged, you must find her guilty. If, on the other hand, you are not firmly convinced of defendant's guilt, you must give defendant the benefit of the doubt and find her not guilty.

[Model Jury Charge (Criminal), "Reasonable Doubt."]

Clearly, the evidence did not support a conviction based on a present intent to operate at the time defendant was approached by the police. Thus, guilt may only be found based on opera tion. Without considering the Law Division judge's personal familiarity with the Bottle King in Hillsborough, we are satis fied that defendant is guilty beyond a reasonable doubt. She was in a highly inebriated state with a BAC of 0.27%, which is more than threefold the legal limit. She admitted she drove to the Bottle King to purchase wine. She did not say that she drove there to get drunk in the parking lot and ran out of liquor while she was doing so. This is more than sufficient evi dence to convict defendant beyond a reasonable doubt of operating her vehicle while her BAC was over 0.08%.

Affirmed.

 

None of these joint exhibits has been included in the appendices. However, the parties do not dispute the facts they establish. As a result, our description of the facts is taken from the parties' briefs and the judges' findings of fact.

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A-5123-08T1

July 13, 2010