STATE OF NEW JERSEY v. ARTHUR T. CHESTER, III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2331-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARTHUR T. CHESTER, III,

Defendant-Appellant.

______________________________

April 26, 2013

Submitted December 5, 2012 - Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. 06-10.

Stefankiewicz & Barnes, L.L.C., attorneys for appellant (David A. Stefankiewicz, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following trial de novo on the record of the Lower Alloways Creek/Elsinboro Municipal Court, the Law Division Judge found defendant Arthur T. Chester, III guilty of driving while under the influence. N.J.S.A. 39:4-50. The judge sentenced defendant to forty-eight hours in jail to be served at the Intoxicated Driver Resource Center, thirty days of community service, imposed a $507 fine, a $50 VCCB penalty, a $75 SNSF assessment, a $200 DWI surcharge, $33 for court costs, suspended his license for two years, and required installation of an ignition interlock device.

The parties had declined oral argument in the trial court, and they received in the mail the judge's order of November 1, 2010 finding defendant guilty. Unbeknownst to the trial judge or the parties, however, the judge's statement of reasons that was to accompany that order was not attached. Defendant appealed to this court, and we reversed and remanded to the trial judge to make findings of fact and conclusions of law. State v. Chester, No. A-1942-10 (App. Div. Oct. 11, 2011).

On remand, the Law Division Judge heard oral argument, placed findings on the record and found defendant guilty. She entered an amended order to that effect and attached her original statement of reasons, noting argument and reaffirming her prior findings.

This appeal followed. We draw the facts from the transcript of a suppression hearing and trial that took place on the same day in municipal court.

Defendant and his brother drove up to the Salem/Hope Creek nuclear generating station security checkpoint in the middle of a December night. The checkpoint is located on an access road running through acres of marshland, three or four miles off the main highway in Lower Alloways Creek Township in Salem County. Defendant's brother testified that they were lost and trying to find the Parkway. Both had been drinking. The men had received a call earlier in the evening that their father had been taken to a distant hospital in critical condition. En route, they learned that their father had died. The men turned back, and were trying to make their way home to Villas in Cape May County when this incident occurred.

Defendant's brother testified that the two were in defendant's girlfriend's car and that he, and not defendant, was driving. The men pulled up to the checkpoint to ask directions. They were told to pull over to the right of the booth and to stay inside their car and someone would be with them shortly. The two pulled over and waited for several minutes. When no one came, they got out and began to approach the booth "to find out what the deal was." Defendant's brother said that was when a dark SUV pulled up, and a man who "seemed military" got out and ordered the men back into their car if they "didn't want to be shot." The man had his hand on a holstered gun when he spoke. Defendant's brother testified that defendant "just jumped right in the driver's seat," and he got into the passenger side. A minute later another SUV and a State Police troop car arrived.

The trooper testified that he was working supplement overtime patrolling the nuclear generating station and parked on the access road half a mile beyond the checkpoint when guards drove up and told him of a suspicious vehicle. The guards advised that they had also notified the Lower Alloways Creek police who were en route. The trooper testified that he immediately drove to the checkpoint to find out what the car was doing there. The guards followed.

On arriving at the checkpoint, he parked his troop car and went over to speak to the driver whom he identified as defendant. The trooper asked to see defendant's license. He testified that defendant was sitting behind the wheel and that the keys were in the ignition, but he could not recall whether the engine was running. In response to the trooper's question, defendant told him that he had come from the hospital and was trying to get to Villas. Detecting a strong odor of alcohol emanating from the car, the trooper asked defendant to get out to speak with him. The odor followed. The trooper asked defendant where he thought he was and defendant answered that he thought he was on the Parkway. The trooper concluded that defendant was under the influence of alcohol. He estimated that he continued to talk with defendant for five minutes or so until the Lower Alloways Creek police could arrive to process him.

The Lower Alloways Creek police officer testified that when he arrived at the checkpoint five minutes after being dispatched, defendant was standing outside his car talking with the trooper. Defendant's brother was sitting in the front passenger seat. Defendant told the officer that he had come from a hospital in Vineland where his father had been taken. The officer administered a balance test and thereafter placed defendant under arrest. Defendant did not advise the officer that his brother had been the driver.

The officer advised defendant's brother that defendant was being placed under arrest for suspicion of drunk driving. Defendant's brother likewise did not advise the officer that he, and not defendant, had been the driver. Because defendant's brother had also been drinking, and his license was under suspension, he was driven to the station by another officer, and the car was towed from the scene.

Defendant acknowledges being over the legal limit to drive. He stipulated to a blood alcohol level of .14. His contention is that because the State did not call any of the individuals who initially detained him at the security checkpoint before the arrival of the State trooper, the prosecution could not establish the legitimacy of the initial motor vehicle stop. Defendant also contends that the State failed to prove operation.

Like the municipal court that initially heard the proofs, and the Law Division Judge that reviewed them on de novo appeal, we have no difficulty in determining that the initial investigative detention of defendant's car by security personnel at the Salem/Hope Creek nuclear generating station security checkpoint was lawful. Reasonable suspicion for an investigatory stop requires only a minimal level of objective justification. State v. Nishina, 175 N.J. 502, 511 (2003). A reviewing court is to evaluate all of the circumstances surrounding the encounter, balancing the State's interest in public safety and effective law enforcement against an individual's right to be spared unwarranted police intrusions. State v. Davis, 104 N.J. 490, 504 (1986). Common sense and good judgment are essential tools for this work.

Defendant, of course, was not stopped in this instance at all. He presented himself at the security checkpoint of a nuclear generating station on a remote access road in the middle of the night. Detaining him long enough to summon nearby law enforcement officers to ask why appears "not only reasonably called for but [] actually dictated by elemental police responsibilities." State v. Dilley, 49 N.J. 460, 468 (1967). Weighing the obvious potential threat to the security of a nuclear generating station against the minimal intrusion on defendant, we have no hesitation in holding that the State met its burden in demonstrating the lawfulness of the stop, even in the absence of direct testimony from the person who initially directed defendant to wait on the side of the road.

We likewise reject defendant's contention that the State failed to prove that defendant operated his motor vehicle while intoxicated. N.J.S.A. 39:4-50. Our courts construe operation broadly and have long held that the focus of the inquiry is properly on a defendant's intent to drive. See, e.g., State v. Morris, 262 N.J. Super. 413, 417-18 (App. Div. 1993).

Here, the trial judge determined that the trooper found defendant behind the wheel of the car with the keys in the ignition. The trooper testified that defendant admitted that they had come from the hospital and got lost trying to get to Villas. The judge agreed with the municipal court that the brother's testimony that he was the driver was incredible. The two men were in defendant's girlfriend's car, both intoxicated, and defendant's brother had a suspended license. Based on the circumstantial evidence, defendant's admission, and defendant's brother's incredible testimony, the judge found the State proved defendant had operated his car while intoxicated. See State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005) (finding combination of defendant's admissions, position of the car, and incredibility of her trial testimony supported finding that she drove while intoxicated).

We are satisfied based on our review of the record that the judge's finding of defendant's guilt could reasonably have been reached "on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964); see State v. Locurto, 157 N.J. 463, 470-72 (1999) (applying the Johnson standard in reviewing a judge's determinations on a suppression motion).

Affirmed.