STATE OF NEW JERSEY v. DAVID C. JUDGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5212-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID C. JUDGE,

Defendant-Appellant.

_________________________________

Submitted June 6, 2011 Decided June 16, 2011

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5940.

Peter A. Fico, attorney for appellant.

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David C. Judge was convicted in municipal court for violating N.J.S.A. 39:4-50 ("driving while intoxicated" or "DWI" statute). He appealed to the Law Division, which likewise convicted him. He appeals from the May 28, 2010 Law Division conviction, and we affirm.

I

On this appeal, there is no dispute that defendant was intoxicated at the time of his arrest. The only issue is whether the State proved that defendant intended to drive his vehicle. Defendant entered a conditional plea of guilty after the trial court decided that issue in favor of the State. This was the most pertinent trial testimony.

Officer Ron DeSimoni, of the Berkeley Heights Police Department, testified that on the evening of July 23, 2009, he responded to a call from a local restaurant and bar, reporting that a car had struck a light pole. When he arrived, he found defendant and his female companion, Judy Macrae, meeting with the restaurant owner in the parking lot. They admitted that defendant's car hit the light pole, and they had already paid the owner for the damage. Macrae told the officer that she had been driving when the accident occurred. Observing that defendant appeared to be highly intoxicated, the officer warned him not to drive home, and defendant agreed.

Officer DeSimoni drove his car to a point where he could observe the parking lot, and, shortly thereafter, he noticed defendant's car backing out of a parking space, traveling to another section of the parking lot, and parking again. DeSimoni then drove over to defendant's car and parked behind it.

As DeSimoni approached defendant's car, he saw Macrae standing next to the driver's side of another vehicle, which she later admitted was her car. He saw defendant sitting inside of his vehicle "in the driver's seat" with the engine running and the headlights on. When the officer approached defendant's car, defendant "quickly turned off the vehicle, put the keys in the console area and started scrolling through his phone as if he was sitting there . . . trying to make a phone call."

Defendant smelled strongly of alcohol and refused to answer directly when the officer asked if he had been drinking. He also would not answer when the officer asked him if he had been driving when the car struck the light pole, and he did not respond when the officer asked if he was "planning on driving himself home." While the officer was questioning defendant, Macrae interjected that she would drive defendant home. The officer then asked her, if that was her plan, why she was standing outside defendant's car while defendant was sitting inside the car alone with the engine running. Macrae first repeated that she was going to drive defendant home in her car, but then changed her story and stated that she was not planning to drive him home.

As the officer ordered defendant to get out of the car, defendant protested, "Are you going to arrest me for driving in a parking lot?" After administering field sobriety tests, which defendant failed, DeSimoni placed him under arrest. At that point, defendant again protested that "We're in a parking lot, we're not even on the street . . . I could see if you caught me driving out there [indicating the street]."

According to Macrae's trial testimony, she was backing defendant's car out of a parking space when that car hit the light pole. Macrae testified that she then drove defendant's car over to where her car was parked in the lot. Because defendant was intoxicated, she intended to drive him to her house, where they planned to watch television. She intended to drive him in her car, because she was unfamiliar with driving his car. According to Macrae, after she got out of defendant's vehicle, she saw defendant get out of the passenger side, walk around and get into the driver's seat; she believed he was looking for his cell phone. She admitted that when she got out of defendant's car, she left the keys in the ignition and the engine running.

Defendant testified that he and Macrae had agreed that she would drive because he was intoxicated after having several drinks inside the restaurant. He corroborated her testimony that she drove his car over to where her car was parked. He testified that he moved from the passenger side to the driver's side to retrieve his mobile phone from under the driver's side seat and to remove his wallet from a pocket on the driver's side door.1 He contended that he left the engine running to keep the car cool, while he called and sent a text message to his girlfriend explaining that he would not be home for a while. He denied driving his car in the parking lot and denied that he intended to drive the vehicle.

The municipal judge found Officer DeSimoni to be a completely credible witness. He found that Macrae was attempting to shade her testimony to favor defendant. He concluded that "there was no preconceived plan for her to drive [defendant] to her house or to any other place." The judge also found "incredible" defendant's explanation for getting into the driver's seat of his car. Based on all of the circumstances, including Macrae's admission to the officer that she was not planning to drive defendant home, the judge found that defendant was sitting in the driver's seat with the engine running and the lights on, because he intended to drive the car.

In deciding defendant's appeal to the Law Division, Judge Stuart L. Peim found Officer DeSimoni to be a credible witness. He found Macrae and defendant not credible. In his May 28, 2010 oral opinion, Judge Peim found that defendant "was behind the wheel, the engine was on, [and] the lights were on," and that when the officer came over to the car defendant "very quickly turned off the engine and tried to make it look like he was making a phone call." He also believed Macrae's admission to the officer that she was not planning to drive defendant home, which was contrary to her trial testimony. Based on those facts, he concluded that defendant intended to operate the car, while intoxicated.

II

On this appeal, defendant contends:

POINT I. THE STATE FAILED TO PROVE DAVID JUDGE INTENDED TO OPERATE A MOTOR VEHICLE.

Based on our review of the record, we cannot agree with defendant's argument. The DWI statute, N.J.S.A. 39:4-50, applies to "a person who operates a motor vehicle while under the influence of intoxicating liquor." The parties agree on the proper construction of the law, and in particular, that actual operation of a vehicle is not necessary to a conviction under N.J.S.A. 39:4-50. See State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005).

As the Supreme Court has stated it:

[W]e are dealing with law enforcement efforts designed to curb one of the chief instrumentalities of human catastrophe, the drunk driver. The New Jersey Legislature had in mind the prevention of accidents when it enacted its drunk-driving legislation. . . . We therefore believe 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 required by N.J.S.A. 39:4-50.4a.

[State v. Mulcahy, 107 N.J. 467, 479 (1987)(citations omitted).]

For comparison's sake, we repeat the facts on which the Court found intent to operate a vehicle in Mulcahy:

As the police officer described it, he saw the defendant approach his car, get into the car, seat himself behind the wheel, take out his keys, and start to put the keys in the ignition. As noted, at that point the officer reached in the car window and took the keys out of defendant's hand. The engine was off. It had not been started. . . . The officer was quite direct in stating that he had . . . no independent basis for determining that the defendant had operated the vehicle at any time prior to the moment when he started to turn the key in the ignition.

[Id. at 472-73.]

Assuming the facts to be as Judge Peim found them, defendant was clearly intending to operate his car. In fact, there was significantly more evidence than there was in Mulcahy, because in addition to defendant sitting in the driver's seat with the keys in the ignition, the engine was running and the headlights were on. Moreover, there was evidence that defendant was about to travel to Macrae's house, and Macrae admitted to the police officer that she did not intend to drive defendant there. See State v. George, 257 N.J. Super. 493, 496-97 (App. Div. 1992) (where defendant was found "behind the wheel of a vehicle with its lights on and its engine running at a time when his breath disclosed a heavy odor of alcohol," the "vehicle's operating condition combined with defendant's presence behind the steering wheel permits the logical conclusion of an intent to drive").

Defendant's appellate contentions amount to an argument that we should second-guess the credibility determinations and other factual findings of the trial judge. However, we are bound by the Law Division judge's factual findings so long as they are supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 474 (1999). We owe particular deference to the judge's credibility determinations. Ibid. That deference is particularly strong when the municipal judge and the Law Division judge reach the same factual conclusions. Ibid.; State v. Ebert, supra, 377 N.J. Super. at 8. In light of the record, we find no basis to disturb Judge Peim's factual findings or his legal conclusions. We affirm substantially for the reasons stated in his opinion.

Affirmed.

1 Defendant claimed, however, that he used a credit card to pay the restaurant owner for the damaged light pole.