STATE OF NEW JERSEY v. HERIBERTO VALEDON

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2209-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HERIBERTO VALEDON,

Defendant-Appellant.

_________________________________

February 10, 2012

Submitted January 17, 2012 - Decided

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Law

Division, Essex County, Municipal Appeal No. 2010-036.

Law Offices of Peter D. Russo, LLC, attorney for appellant (Mr. Russo, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Heriberto Valedon 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.

According to the State's proofs, at 4:10 a.m. on November 6, 2009, Officer Dean Berardi of the Montclair Police Department was dispatched to Valley Road on a report of a suspicious vehicle parked there for over an hour with its hazard lights on. Upon arrival, Berardi observed a red Acura parked facing north on Valley Road with keys in the ignition, engine running and hazard lights flashing. Valley Road is a relative busy thoroughfare where overnight parking is prohibited by Montclair ordinance.

Defendant was observed reclined in the driver's seat, apparently asleep and unresponsive. Debris was strewn inside the car, including on defendant's chest and lap. Concerned for defendant's safety, Berardi knocked on the window several times, but unable to rouse defendant, he opened the unlocked car door and shook defendant's shoulder. Defendant awoke, but was minimally responsive, unable to explain his presence in a running car parked illegally on the side of the road.

Defendant's speech was "slurred" and "mumbling[,]" and he smelled of alcohol. His eyes were bloodshot and glazed. Defendant's condition prompted Berardi to ask him if he had been drinking, to which defendant gave an incomprehensible response. Defendant eventually admitted he had been drinking a few beers, but also mentioned that he had been taking cold medicine, although no bottles were found inside or in the immediate vicinity of the vehicle. Defendant, who lived in a nearby town, denied having any friends or family in the area. Defendant also ignored Berardi's repeated request to turn off the ignition, prompting the officer to reach in and turn the vehicle off himself for safety reasons. Berardi noticed the car was warm when he touched it.

Suspecting that defendant was intoxicated, Berardi ordered him to exit the vehicle to perform two standard field sobriety tests the walk and turn test and the one-leg stand test which he proceeded to fail "pretty badly."1 On the basis of his observations to this point, Berardi concluded that defendant was intoxicated. Upon his arrest, defendant was transported to police headquarters where he was administered an Alcotest exam, the results of which were suppressed in the municipal court because the State failed to produce certain documents relating to the device's calculation. Nevertheless, on May 11, 2010, the court found defendant guilty of DWI based on the police officer's observations of defendant:

I do find the State has established beyond a reasonable doubt that [defendant] did operate the vehicle to the place of rest, that he had consumed alcohol, that he was clearly under the influence of alcohol at the time he stopped, even though the operation took place sometime earlier. Now, so, because we have no Alcotest reading [defendant] is subject only to the penalty that's applicable under the first tier of [N.J.S.A.] 39:4-50.

Defendant was sentenced pursuant to N.J.S.A. 39:4-50(a)(2) as a second time offender to a two-year suspension of his driver's license, a $500 fine, a $200 DWI surcharge, two days jail time to be served at the Intoxicated Driver Resource Center program, thirty days of community service, and other costs and assessments.

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, finding the observational evidence alone sufficient to support the conviction. In so concluding, the judge noted "[t]here is nothing in the record to permit a reasonable inference that [defendant] did not drive his car while intoxicated to Valley Road, at which point, sometime prior to Berardi's arrival, [defendant] pulled over and passed out or fell asleep with his vehicle still running and with the hazard lights on."

On appeal, defendant raises the following issues:

I. THE COURT ERRED IN IGNORING THE FACT THAT THE STATE COULD NOT ESTABLISH WHEN THE APPELLANT DROVE HIS CAR SINCE THE ANONYMOUS CALLER PLACED HIM AT THE SCENE AT LEAST TWO HOURS BEFORE THE POLICE ARRIVED.

II. THE COURT ERRED BY IGNORING THE PLAIN ERROR COMMITTED BY THE TRIAL JUDGE WHEN HE HEARD TESTIMONY REGARDING THE ALCOTEST RESULTS WITHOUT ADMITTING THE ACTUAL RESULTS OR THE FOUNDATIONAL DOCUMENTS NECESSARY TO ADMIT THE RESULTS.

III. THE COURT ERRED BY IGNORING THE PLAIN ERROR COMMITTTED BY THE TRIAL JUDGE WHEN HE DISREGARDED PETITIONER'S MOTION TO SUPPRESS.

IV. THE COURT ERRED BY IGNORING THE PLAIN ERROR COMMITTED BY THE TRIAL JUDGE WHEN HE STEPPED INTO THE ROLE OF PROSECUTOR.

We address the first issue as we deem the others not of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

N.J.S.A. 39:4-50(a) prohibits the operation of a motor vehicle under the influence of intoxicating liquor. Defendant contends there is insufficient evidence of "operation." We disagree.

The term has been interpreted broadly in the context of the DWI statute. State v. Mulcahy, 107 N.J. 467, 478 (1987); 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). It is not limited to a vehicle in motion. Mulcahy, supra, 107 N.J. at 476. Rather, the State may prove "operation" of a vehicle either by "actual observation of the defendant driving while intoxicated, by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, or by defendant's admission." State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005) (internal citations and quotations omitted). Moreover, "operation" may be proven by direct or circumstantial evidence so long as it is "competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992).

Here, although Officer Berardi did not directly observe defendant driving, it was entirely reasonable for the trier of fact to conclude that defendant was in physical control of, and had recently operated, the vehicle in which he was found intoxicated. Indeed, defendant was observed asleep behind the steering wheel with the key still in the ignition. The vehicle was warm to the touch, its engine running and its hazard lights flashing. The car was parked illegally on a busy thoroughfare where defendant had no ostensible reason for being at 4:00 a.m., given he lived in another town and had no family or friends in the area. Under the circumstances, the inference is inescapable that defendant was the "operator" of the vehicle and had recently "operated" the vehicle within the meaning of N.J.S.A. 39:4-50(a) when he pulled over to the side of the road and fell asleep while intoxicated. See, e.g., State v. Wright, 107 N.J. 488, 491-92 n.1 (1987); State v. Dannemiller, 229 N.J. Super. 187, 190 (App. Div. 1988); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974); State v. Sweeney, 77 N.J. Super. 512, 521 (App. Div. 1962), aff d, 40 N.J. 359 (1963). These same facts also support the reasonable inference that, as the vehicle was still running, defendant intended to operate the vehicle to his planned destination once he awoke. See Tischio, supra, 107 N.J. at 520. Unlike State v. DiFrancisco, 232 N.J. Super. 317 (Law Div. 1988), where the defendant was found behind the steering wheel of a truck that was stuck in a ditch, inoperable and had to be towed, here, there is no suggestion defendant's vehicle, with engine running, could not be driven or was otherwise inoperable.

Having demonstrated defendant's operation of his vehicle, the State offered sufficient credible evidence of defendant's intoxication. In this regard, the observations of defendant's physical condition and his performance on the field sobriety tests more than suffice to support defendant's DWI conviction. State v. Liberatore, 293 N.J. Super. 535 (App. Div. 1996).

Affirmed.

1 By then Berardi had been joined by another police officer, James Lawlor, certified in Horizontal Gaze Nystagmus (HGN) testing. Subsequent to defendant's failed performance on the field sobriety tests, he was administered the HGN text by Lawlor, who concluded defendant was profoundly intoxicated based on nystagmus in both eyes.