STATE OF NEW JERSEY v. DESMOND M. CLAYTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2067-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DESMOND M. CLAYTON,

Defendant-Appellant.

________________________________________________________________

November 16, 2011

Submitted October 13, 2011 - Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-12-10.

Ragonese, Albano, Viola & Almeida, L.L.C., attorneys for appellant (Anthony S. Almeida, on the brief).

SeanF. Dalton,Gloucester County Prosecutor, attorney for respondent (Margaret A. Cipparrone, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Desmond M. Clayton appeals his December 2, 2010 conviction for driving under the influence after a trial de novo in the Law Division. N.J.S.A. 39:4-50. Defendant was sentenced as a third-time offender to a term of six months incarceration in the Gloucester County Jail; his driving and registration privileges were suspended for ten years; and he was ordered to pay the mandatory fines and penalties. Defendant contends on appeal that his conviction should be overturned because the State failed to prove beyond a reasonable doubt that he operated the car or, in the alternative, that he did not ingest alcohol between the time he drove the car and his arrest approximately one-half hour later. After reviewing the record in light of the contentions advanced on appeal, we affirm based on the thorough written opinion of Presiding Criminal Judge Walter L. Marshall, Jr.

Judge Marshall made the following findings of fact. On November 22, 2009, at approximately 3 a.m., Uma Rani Singh was rear-ended near the intersection of Cooper Street and Almonesson Road while driving her car in Deptford Township, damaging the right rear bumper of her car. As the other car pulled away, Singh noticed it had sustained damage and had oil on it. Singh watched as the other car pulled off the road into the Almonesson Firehouse parking lot. Singh then noticed a person walking towards her. Concerned for her safety, she left the scene of the accident and drove approximately one-half mile to a Gulf Station, where she contacted police.

At 3:18 a.m., three members of the Deptford Township Police Department arrived at the Gulf station in response to her call. Singh was unable to identify the driver, the color, or the license plate of the car that struck her. One of the officers, Patrolwoman Sandra Anne Reid, drove to the area of the reported collision. She observed an unoccupied, dark-colored Infinity parked in the Almonesson Firehouse parking lot. The engine of the parked car was still warm; it also had front-end damage and was leaking fluids. Officer Reid followed a trail of fluid from the car into the street about twenty feet away. She then called in the car's license plate number. She was informed that defendant was the registered owner and obtained a digital photograph of him.

At 3:34 a.m., Officer Reid observed defendant walking through the intersection at Cooper Street and Almonesson Road. She stopped to speak with him and noticed the strong odor of alcohol and bloodshot, watery eyes. He told Officer Reid that he was walking home. His car keys were in his possession. Defendant told the officer that no one else had driven his car that night. In response to questioning about whether there were other occupants in his car who may be injured, defendant stated "No, and I m not injured." He said he was walking home and never explicitly admitted to driving his car that night.

There are two bars near the intersection of the accident, one of which is Filomena's Bar and Restaurant. Defendant was found by Officer Reid walking in the direction away from his car, approximately two hundred feet from Filomena's entrance. Although both bars close at 3 a.m., Officer Reid acknowledged that she has responded to bars after closing time in the past. Defendant's blood alcohol level was .18, which constitutes a per se violation of N.J.S.A. 39:4-50(a).

Defendant raises the following issues on appeal:

I. JUDGE MARSHALL ERRED IN FINDING THAT THE STATE PROVED THE ISSUES OF "OPERATION" AND "TIME OF OPERATION" BEYOND A REASONABLE DOUBT

A. Judge Marshall Erred in Finding "Operation" Was Established

B. Judge Marshall Erred in Finding Time of Operation Was Established Because the Evidence Does Not Establish Beyond a Reasonable Doubt that Defendant was Involved in UMA Rani Singh's Automobile Accident

II. JUDGE MARSHALL ERRED IN FINDING THAT THE STATE PROVED BEYOND A REASONABLE DOUBT THAT THERE WAS NO FURTHER INGESTION OF ALCOHOL BY DEFENDANT BETWEEN THE TIME OF ALLEGED OPERATION AND THE TIME OF THE ALCOTEST TESTING

Our review is governed by the substantial evidence rule. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). In other words, our analysis is limited to a determination of whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). The Appellate Division "consider[s] only the action of the Law Division and not that of the municipal court." Id. at 175-76 (citing State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001)). When both the municipal court and the Superior Court enter "concurrent judgments on purely factual issues," those findings should not be disturbed "absent a very obvious and exceptional showing of error." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)).

We affirm substantially on the basis of Judge Marshall s well-reasoned, thorough written opinion. Judge Marshall relied on the factually similar case of State v. Ebert, supra, 377 N.J. Super. at 10, to support his decision that the State had proven operation of the automobile through circumstantial evidence. Defendant s close proximity to his damaged car, which was still warm, and the car keys in his pocket were strong circumstantial evidence that he operated the car one-half hour earlier.

Judge Marshall also found that the State proved beyond a reasonable doubt that defendant had not ingested alcohol between the time he operated the car and the time of his arrest. The bars were closed at the time of the accident, defendant had no alcoholic beverages on his person and there was no other evidence to suggest that defendant drank any alcohol during the half hour following the accident.