STATE OF NEW JERSEY v. QUINTIN PRIOLEAU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5736-07T45736-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUINTIN PRIOLEAU,

Defendant-Appellant.

 

Submitted June 8, 2010 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4727.

Callen & Callen, attorneys for appellant (Bernard Callen, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Quintin Prioleau appeals from his driving while intoxicated (DWI) conviction, N.J.S.A. 39:4-50, in the municipal court, and again on appeal in the Law Division after a trial de novo. We affirm.

On August 5, 2006, at approximately 4:45 a.m., Officer Chris Canova of the North Haledon Police Department, while on duty, pulled into the Foodtown parking lot in Haledon, to conduct a property check. Canova observed a tan Mazda 626, improperly backed into a parking space, with defendant slumped forward in the driver's seat with the window half-way down.

Upon exiting his vehicle and approaching the Mazda, Canova immediately detected the odor of alcohol emanating from the interior of the Mazda. Defendant appeared unconscious and was holding keys in his left hand. Canova twice attempted to wake him, but to no avail. The officer then reached inside the partially open window and awoke defendant by shaking his left shoulder. As defendant lifted his head and looked up, Canova noticed that defendant's eyes were extremely bloodshot and watery. When asked for his identification, defendant presented his driver's license, and then rambled in a slurred manner. Canova then asked defendant what was going on this morning, and defendant replied that he was on his way to his job in Kearny. Defendant, however, did not respond when questioned about where he was, but answered in the affirmative when asked whether this was his usual route to work.

By this time, Sergeant Mark Rowe arrived on the scene. Canova asked defendant to exit his vehicle. After conducting a battery of field sobriety tests, Canova "concluded that defendant was intoxicated and placed him under arrest." Defendant's keys were later used by Rowe to raise the window and by the tow truck operator who impounded defendant's Mazda.

At trial, in the municipal court, defendant's girlfriend of four years, Tania Lopez, testified that she and defendant were returning to Paterson from a party in Harlem in the early morning hours on August 5, 2006. Lopez was driving defendant's vehicle while defendant was seated in the passenger seat, as defendant had been drinking that evening. During the car ride she and defendant argued over his drinking, so she pulled into the Foodtown parking lot. Although she was unfamiliar with the area, she left defendant there, sitting in the car, and took what she thought was the only set of keys to the Mazda. Lopez claimed she had a friend pick her up and take her home.

Discrediting Lopez's testimony, the municipal court judge found defendant guilty as a third-time DWI offender, N.J.S.A. 39:4-50, and of driving while his license was suspended, N.J.S.A. 39:3-40. After merging the offenses, the court sentenced defendant to a 180-day jail term, ninety days of which could be served in an in-patient rehabilitation program; a ten-year license suspension; and appropriate fees, fines, and penalties.

On a de novo review of the record, the Law Division judge adjudicated defendant guilty of DWI and imposed the same sentence as the municipal court. In doing so, the judge discredited Lopez's testimony and found that defendant had actually operated the vehicle. Specifically, the judge found it unbelievable that Lopez would leave defendant alone in an unfamiliar area, and he further discredited her testimony based upon the fact that defendant had possessed a set of keys for the Mazda. The court also mentioned that Lopez's testimony was not corroborated by her friend, who supposedly picked her up at the Foodtown parking lot.

The court then held that even if Lopez's testimony had been credible, defendant intended to operate his motor vehicle while under the influence of alcohol. The court based its conclusion on the fact that after Lopez had been picked up by her friend, defendant switched from the front passenger seat to the driver's seat; admitted his intent to drive to work; and actually possessed a set of car keys in his hand when Officer Canova found him sleeping and slumped in the seat. Thus, the court concluded that "there is evidence that suggests but for defendant falling asleep, he would have successfully completed an attempt to drive his motor vehicle while under the influence of alcohol."

On appeal, defendant argues:

THE APPEAL SHOULD BE GRANTED BECAUSE THE COURT IN THE MUNICIPAL APPEAL ERRED IN HOLDING THAT THE DEFENDANT "OPERATED" THE VEHICLE OR HAD THE "INTENT" TO OPERATE THE VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL WHEN HE WAS FOUND IN A PARKED VEHICLE WITH ITS ENGINE OFF WHILE ASLEEP.

We disagree.

The scope of appellate review is limited to determining whether the record contains sufficient credible evidence to support the findings of the Law Division. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964); State v. Locurto, 157 N.J. 463, 471 (1999). "Moreover, when the Municipal Court and the Superior Court '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). This court is "bound by the trial court's findings of fact even though we may have reached a different conclusion, unless we are 'thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). Accordingly, this court is obliged, as was the Law Division judge, to defer to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). By the same token, a "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference" on appeal. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Here, the essential issue is a mixed question of fact and law: what constitutes "operation" and was there sufficient evidence of such to support defendant's DWI conviction.

N.J.S.A. 39:4-50(a) prohibits a motorist from operating a vehicle while under the "influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or . . . with a blood alcohol concentration of 0.08% or more. . . ." The term "operates" as used in N.J.S.A. 39:4-50(a) has been broadly interpreted. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005)("Actual operation is not required to satisfy the element."); 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); State v. Mulcahy, 107 N.J. 467, 478 (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).

Thus, "[o]peration" may be proved by observation of the defendant in or near the vehicle under circumstances indicating that the defendant had just recently been driving while intoxicated. Mulcahy, supra, 107 N.J. at 476; State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974). A vehicle found in operating condition combined with a "defendant's presence behind the steering wheel" can support the finding that a defendant had an "intent to drive." George, supra, 257 N.J. Super. at 497; Tischio, supra, 107 N.J. at 513. An observing officer determines operation "'by the use of his senses.'" Dickens, supra, 130 N.J. Super. at 76 (quoting State v. Smith, 37 N.J. 481, 495 (1962), cert. denied, 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963)).

Inferring intent sufficient to satisfy a finding of "operation" from the surrounding circumstances "is completely consistent with [this jurisdiction's] decisions holding that even before a vehicle is put in motion, a drunk driver offends the law when he evinces an intent to drive his car." Tischio, supra, 107 N.J. at 520. "'The law was not intended to encourage a perilous race to reach one's destination, whether it be home or the next bar, before the blood alcohol concentration reaches the prohibited level.'" Id. at 519-20 (quoting State v. Tischio, 208 N.J. Super. 343, 348 (App. Div. 1986)).

In Mulcahy, supra, the Court noted that

when one enters a car and puts one's self in the driver's seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation, at least sufficient to warrant an arrest for purposes of submission to the sobriety test . . . .

[107 N.J. at 479.]

There, the police observed defendant stagger out of the bar, enter his car, seat himself behind the driver's wheel, and attempt to place the key into the ignition when one of the officers reached into the passenger compartment and took the keys from the defendant's hand. Id. at 470. The Mulcahy Court found the defendant's actions constituted "operation" of a motor vehicle. Id. at 479; see also State v. Wright, 107 N.J. 488, 491-92 n.1 (1987) ("[o]ne can be an 'operator' without driving.").

Defendant's principal reliance on State v. Daly, 64 N.J. 122 (1973), is misplaced. There, the Court found that the State failed to prove an intention to move the motor vehicle where the defendant was found sleeping in a car parked in the lot of a tavern, with the motor running solely for the purpose of keeping warm. Id. at 124-25. The police discovered the defendant sleeping in the driver's seat of his car at 3:20 a.m., slightly reclined, over an hour and twenty minutes after the bar had closed. Id. at 124. Based on these facts, the court held that it could not be inferred that the defendant had the intent to drive. Id. at 125. Moreover, the car's presence in the tavern's lot strongly suggested that the defendant had not moved his vehicle since he left the tavern, and therefore no logical conclusion could be drawn that the defendant had recently moved his vehicle. Ibid.

Here, unlike Daly, the record evidence supports the finding that defendant recently operated his vehicle while intoxicated and, moreover, intended to drive the automobile to work but for his falling asleep behind the wheel. He was found in his parked car in the Foodtown lot, which even according to Lopez, was far removed from the location where he consumed alcohol. Lopez's version of being the "designated driver" having been discredited, the State's proofs, including the fact that defendant was sitting in the driver's seat, albeit slumped over the wheel, with car keys in hand, certainly allow for the reasonable inference that defendant recently arrived at this location after driving the vehicle himself in an intoxicated condition. This same evidence, together with defendant's admission that he was on his way to work, supports the court's finding that defendant intended to move or "operate" his vehicle while still intoxicated.

In determining whether the State sufficiently met all elements of a crime beyond a reasonable doubt, we view the "evidence in its entirety[.]" State v. Reyes, 50 N.J. 454, 458-59 (1967). The prosecution's evidence may be direct or circumstantial, and we are to give the evidence all "favorable inferences [that] reasonably could be drawn therefrom[.]"

Ibid.; State v. Taccetta, 301 N.J. Super. 227, 240-41 (App. Div.), certif. denied, 152 N.J. 187 (1997). Governed by this standard, we are satisfied that the court's determinations that defendant had recently been in operation of the vehicle and intended to further operate it while intoxicated is well supported by the evidence and the reasonable inferences therefrom.

 
Affirmed.

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A-5736-07T4

July 9, 2010