STATE OF NEW JERSEY v. KUNAL GOORIAH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KUNAL GOORIAH,

Defendant-Appellant.

_________________________________

December 6, 2013

Submitted November 18, 2013 Decided

Before Judges Parrillo and Harris.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 19-12-M.

Robert S. Seguin, attorney for appellant.

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nicole McGrath, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kunal Gooriah appeals from his driving while under the influence (DUI) 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.

Around 1:44 a.m. on October 17, 2010, Franklin Township Police Officer Jose Jaime found defendant hanging upside-down in his vehicle, still buckled into his seatbelt, with the car's headlights still on. From the tire tracks on the side of the roadway, it appeared that the vehicle had left the road, hit a mailbox, severed a telephone pole, swerved back onto the roadway and flipped over. The vehicle was smoking and had sustained front-end and side panel damage.

Officer Jaime released the seatbelt from the driver's seat and guided defendant onto the roof of the car, where he laid until an ambulance arrived. Defendant's eyes were bloodshot and watery, and his speech was slurred. Officer Jaime refrained from conducting any field sobriety tests for fear of causing any further injury to defendant. Instead, defendant was placed on a backboard and transported to a hospital by ambulance. While in the ambulance, Officer Jaime tried to talk to defendant about the accident and at that point detected the odor of alcohol on his breath.

At the hospital, Officer Jaime arrested defendant for DUI, and issued a summons for careless driving and failure to keep to the right. Defendant was advised of his Miranda1 rights, after which he began to cry and apologize for the incident. He admitted being "under the influence," and having consumed three shots of vodka at a bar in New Brunswick before heading home.

At trial, defendant briefly testified that he did not recall the evening's events, but had a vague recollection of being at the hospital. He was diagnosed with a concussion.

Finding that the totality of circumstances created a "mosaic of guilt," the municipal court judge convicted defendant of DUI. On a de novo review of the record, the Law Division judge found defendant guilty of DUI, concluding:

The State can prove its case by way of the observations made by the officer of the Defendant's physical condition[]

. . . .

Here, Officer Jaime testified to numerous observations regarding defendant that rose to probable cause that defendant was driving while intoxicated: defendant's eyes were bloodshot, droopy and water[y]; his speech was slow and slurred; and the odor of alcohol was detected on the defendant's breath. Additionally, after leaving the scene of the accident, defendant indicated to the officer at the hospital that he was trying to get home from the Rutgers Knight Club in New Brunswick, NJ after consuming three vodkas and that at one point he was "definitely under the influence." Defendant also admitted that he consumed his first drink at approximately 12 a.m. and his last drink around 1 a.m. The officer responded to the scene at 1:44 a.m., approximately forty-four minutes after defendant's last drink.

On appeal, defendant argues:

I. THE STANDARDS SET BY THE N.J. COURTS FOR CONVICTION OF A DEFENDANT FOR DUI HAVE NOT BEEN MET.

II. THE DEFENDANT'S CASE HAS UNFORTUNATELY SUFFERED FROM A GREAT DEAL OF CONFUSION AND INCONSISTENCIES ON ITS WAY TO THIS COURT.

We reject these contentions as without merit. R. 2:11-3(e)(2).

The function of the Law Division on an appeal from the municipal court is not to search the record for error by the municipal court, or to decide if there was sufficient credible evidence to support the municipal court conviction, but "to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the [judge]" to evaluate witness credibility. State v. Johnson, 42 N.J. 146, 157 (1964); see also State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make independent findings of fact. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)). In contrast, our function as a reviewing court is governed by the "substantial evidence" rule, namely to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162.

[T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[State v. Locurto, 157 N.J. 463, 474 (1999).]

When we are satisfied that the findings and conclusions of the Law Division are supported by sufficient credible evidence, our "task is complete and [we] should not disturb the result, even though [we] . . . might have reached a different conclusion" or if the result was "a close one." Johnson, supra, 42 N.J. at 162; see also Avena, supra, 281 N.J. Super. at 333. So measured, we are satisfied that the evidence in this case established defendant's "operation" of the vehicle "while intoxicated."

The term "operates," as used in N.J.S.A. 39:4-50(a), has been broadly interpreted. 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, 480 (1987); State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993). "Actual operation is not required to satisfy the element." State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005). "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).

There are three ways to prove "operation": 1) "actual observation of the defendant driving while intoxicated"; 2) "observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated"; or 3) admission by the defendant. Ebert, supra, 377 N.J. Super. at 10-11. Thus, "operation" 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. See Mulcahy, supra, 107 N.J. at 476; Ebert, supra, 377 N.J. Super. at 4-5, 9-12 (affirming defendant's DWI conviction based on her statements which led police to believe she had recently driven the car, which she had reported stolen, to the restaurant where police found it parked on the other side of the building); State v. Hanemann, 180 N.J. Super. 544, 547, 554 (App. Div.) (affirming defendant's DWI conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 506 (1981); State v. Guerrido, 60 N.J. Super. 505, 509-10, 513 (App. Div. 1960) (affirming defendant's conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found "buried full length in some shrubbery and lilac bushes").

Here, while there is a lack of actual observation of defendant operating the vehicle, there is both an admission of operation by defendant and substantial circumstantial evidence giving rise to the reasonable inference that defendant had operated the vehicle shortly before Officer Jaime arrived and found him in an intoxicated condition. Indeed, defendant was found in his overturned vehicle, in the middle of the road, still in his seatbelt, with the vehicle's headlights still on. His injuries were consistent with driving and rolling over in the vehicle. The tire tracks on the side of the roadway demonstrated that his vehicle had left the road, hit a mailbox and telephone pole, returned to the roadway and rolled over. Defendant recalled both at the hospital and in his testimony, that he had previously been driving that vehicle. Based on these facts, it may reasonably be inferred that the vehicle, prior to the damage sustained in the accident, was operable, and that defendant had been driving the vehicle when it flipped over.

Contrary to defendant's next contention, the State may demonstrate intoxication by observation alone, State v. Ravotto, 169 N.J. 227, 242 (2001); State v. Tamburro, 68 N.J. 414, 421 (1975), and the observational evidence of defendant's intoxication was substantial in this case. As noted, defendant admitted imbibing three shots of vodka and being "under the influence." He was thereafter involved in a one-car accident, in which his vehicle veered off the roadway, struck a mailbox and utility pole, swerved back on the road and overturned. Officer Jaime detected the odor of alcohol on defendant's breath from twelve inches away. Moreover, defendant exhibited visible signs of intoxication: slow and slurred speech, and watery, bloodshot eyes. In sum, the totality of Officer Jaime's observations coupled with defendant's admissions fully support the conclusion that defendant was under the influence of alcohol at the time he operated his vehicle.

Defendant's remaining contentions are devoid of merit, not warranting discussion in this opinion. R. 2:11-3(e)(2).

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).