STATE OF NEW JERSEY v. ROBERT BUCKELEW

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT BUCKELEW,

Defendant-Appellant.

_________________________________

Telephonically argued April 18, 2013

Decided May 13, 2013

Before Judges Parrillo and Carroll.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, Municipal Appeal

No. 12-012.

Stephen M. Pascarella argued the cause for

appellant (Pascarella & Associates, P.C.,

attorneys; Alessandro Rinaldo Di Stefano, on

the brief).

Nicole D. Wallace, Special Deputy Attorney

General/Acting Assistant Prosecutor, argued

the cause for respondent (Christopher J.

Gramiccioni, Acting Monmouth County Prosecutor,

attorney; Monica do Outeiro, Special Deputy

Attorney General/ Acting Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Robert Buckelew was found guilty in the municipal court of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and the petty disorderly persons offense of disorderly conduct, N.J.S.A. 2C:33-2(a). On appeal to the Law Division, R. 3:23-2, he was again found guilty of the same offenses after a trial de novo. R. 3:23-8(a). Defendant appeals, and we affirm.

Responding to a report of a disorderly person and suspected drunk driver, Howell Township Police Officer Donald Franklin arrived at the Wawa convenience store on Route 9 South sometime after 2:00 a.m. on June 3, 2011. Upon arrival, Officer Franklin observed the vehicle that matched the description provided by dispatch. The vehicle's engine was running and defendant was seated behind the steering wheel. The vehicle was also "parked in a suspicious manner in the parking lot," "[e]xactly one car [length] in front of the gas pumps," essentially "[i]n the middle of the parking lot."

Officer Franklin exited his patrol vehicle and instructed defendant to move his vehicle forward to a safe area of the parking lot. When defendant failed to respond, Officer Franklin ordered defendant, who was sitting in the driver's seat eating a sandwich, to turn his vehicle off.

Defendant's demeanor was tumultuous. He complained to Officer Franklin "why the fuck am I here? Why the fuck are you here? This is a private lot. I know my fucking rules. You can't do anything to me." Officer Franklin immediately detected the odor of alcohol "emanating from [defendant's] breath." Despite Officer Franklin's continued attempts to speak with defendant, he responded by "continuously t[elling] [Officer Franklin] that [he was] a fucking asshole, [and] could fuck off."

Officer Franklin then ordered defendant to exit the vehicle and "walk to the back of the car." In attempting to comply with the request, defendant "stumbled a few times" and "had to hold onto the vehicle for support." Throughout, defendant continued calling the officer an "asshole" and stated, "the fucking police don't know what they're doing." When Officer Franklin informed defendant he intended to administer field sobriety tests, defendant refused, stating, "the fuck you will."

Defendant's "continuous[] yelling and screaming" attracted the attention of Wawa patrons and employees, causing them to gather in the parking lot and watch this encounter. Officer Franklin gave defendant "a couple of more warnings," but defendant continued to "rant and rave." Officer Franklin then placed defendant under arrest for disorderly conduct and

handcuffed him, approximately five to seven minutes after he first encountered defendant.

Officer Terrence Hurley arrived on the scene shortly after defendant's arrest. He witnessed defendant "screaming and cursing" at the two officers and "there [were] patrons of the store that had come out and had stood next to their cars to watch this all happen." According to Officer Hurley, defendant's overall disposition was "[a]ngry, angry, antagonistic, yelling, screaming, making a scene."

Defendant refused Officer Hurley's order to stop "causing a spectacle." Officer Hurley smelled alcohol on defendant's breath and body and observed him "swaying from side to side." Defendant's eyes were "red, watery" and his speech was slurred. Officer Hurley concluded that defendant "was intoxicated and

. . . shouldn't be driving." Field sobriety tests were not administered at that time, however, because the officers did not want "[defendant] without restraints on, because based on his demeanor [they] didn't know if he was going to fight [them]."

Officer Hurley secured defendant, who was still screaming and yelling, in the back seat of Officer Franklin's vehicle to "quiet him down" and he was then transported to police headquarters. During the transport, defendant continued to act

belligerently, threatening "that he'd have [Officer Franklin's] job about five times."

At the station, defendant was "a lot more calm and just more of a mellow personality." Officer Hurley read the Motor Vehicle Commission Standard Statement Form to defendant and asked him if he would submit to Alcotest testing; defendant verbally consented to testing. However, during Alcotest administration, defendant "refused to properly give breath samples," leading Officer Hurley to conclude that defendant was "purposely attempt[ing] to sabotage the test." After two such attempts, Officer Hurley informed defendant his behavior would be considered a refusal; defendant became "irate . . . very angry and began yelling again."

Defendant submitted to psychophysical sobriety tests. When he indicated that he had previous foot surgeries on his right foot, Officer Hurley instructed defendant to balance on his left foot, "so as not to cause an issue with the balance test."

After instructions and demonstration, defendant was administered the one-leg stand test. Defendant raised his right foot and "counted very quickly up to the number 20" before he "began to question the legitimacy of the testing" and asked the officer if he was done yet. Upon instruction from Officer Hurley that the test was not yet complete, defendant "resumed

the counting procedure with his foot raised" but "counted out of order" and "began swaying back and forth [and] eventually lost his balance."

The walk and turn test was next administered after instructions and demonstration. Defendant performed the test "poorly." Officer Hurley observed that defendant displayed "poor balance, swaying back and forth. At one point he was leaning on the wall . . . [h]e had to lean over and lean onto the wall for support, hold himself up at one point." Based on these observations, Officer Hurley concluded that the "physical testing just again reinforced [his] original opinion that [defendant] was intoxicated and . . . shouldn't be driving a motor vehicle."

Based on this evidence, the municipal court judge, crediting the testimony of Officers Franklin and Hurley, found defendant guilty of DWI and disorderly conduct and dismissed the reckless driving ticket as merged. Defendant was sentenced on the DWI to a $356 fine, $33 court costs, $50 VCCB, $200 DWI surcharge, $75 SNSF, $500 DEDR, three-month suspension of driving privileges, twelve hours of IDRC, and one-year ignition interlock. On the disorderly conduct, defendant was sentenced to a $400 fine, $30 court costs, $50 VCCB, and $75 SNSF.

On appeal to the Law Division, following a trial de novo, defendant was again found guilty of the same offenses, for which the same sentence was imposed. As regards the DWI offense, the judge concluded that Officers Franklin's and Hurley's observations proved defendant's intoxication beyond a reasonable doubt:

Officer Hurley observed that defendant's breath smelled of alcohol and his speech was slurred. These observations cannot be eschewed or attributed to defendant's belligerent actions towards Officer Franklin. Further, this Court finds no basis to discount Officer Hurley's opinion based on defendant's prior surgery. Although defendant informed the officer of his prior surgery, at no time during the tests did he contend that he could not complete them due to his physical ailment. To the contrary, defendant argued that he had completed the sobriety tests with no issue. Therefore, this Court finds that defendant was intoxicated at the time of his arrest and at the time of the field sobriety tests, which he failed.

The judge also found sufficient evidence of "operation":

[D]efendant could not have become intoxicated at the Wawa, because it is common knowledge that Wawa stores do not sell alcohol, pursuant to N.J.S.A. 31:1-12.1 (retailer license "shall not be issued to permit the sale of alcoholic beverages in or upon any premises in which a grocery, delicatessen, drug store, or other mercantile business is carried on). Here, rather, defendant was found behind the wheel of his car, in a non-delineated parking spot, with the engine running. This is more than sufficient to establish operation under

the flexible interpretation adopted by the courts. Further, the reasonable inference, since defendant was not with anyone at the store, can be made that defendant drove to the Wawa.

Concerning the disorderly conduct offense, the judge concluded:

Defendant created a "hazardous or physically dangerous condition" which served no legitimate purpose by operating his vehicle while intoxicated and parking in the middle of the Wawa parking lot. He further created a hazardous condition by screaming profanities and acting belligerent towards the officers. In fact, these actions were hazardous as evidenced by the scene that congregated around defendant and the officers. These actions created a dangerous condition to both him and others entering and exiting the Wawa and its parking area.

On appeal, defendant essentially contends his convictions are unsupported by the evidence. We disagree.

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 before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); 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 fact 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 if 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."

I.

N.J.S.A. 39:4-50(a) prohibits a motorist from operating a vehicle while under the "influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or . . . with a blood alcohol concentration of 0.08% or more[.]" 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, 478 (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, 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").

In Hanemann, supra, the defendant admitted that he was in the vehicle as late as 1:00 a.m., one and one-half hours before the unattended vehicle was discovered by police in its damaged condition. 180 N.J. Super. at 554. Learning that the vehicle was registered to the defendant, the police traveled to his home where they discovered him bruised and intoxicated at 4:00 a.m. Id. at 547. In affirming his conviction, we found the roughly three-hour timeframe sufficient to support the conclusion that

the defendant operated the vehicle in an intoxicated condition at the time of the accident. Id. at 554.

In George, supra, 257 N.J. Super. at 495-97, we found "sufficient evidence to support the finding of operation" where, as here, an officer observed a vehicle "stopped in a parking lot, not in a normal parking space . . . with its headlights on and its engine running" and defendant was seated in the driver's seat of the vehicle. Similarly, in Ebert, supra, 377 N.J. Super. at 4-5, this Court concluded that the evidence supported a "finding that defendant drove . . . in an intoxicated state" where the defendant exhibited physical signs of intoxication, had her car keys in her hand, and parked her vehicle in two parking spots in a restaurant's parking lot.

Here, defendant was found at the wheel of his vehicle, which had its engine running, and was stopped in an abnormal position in the parking lot. These facts clearly permit the "inescapable" "inference . . . that defendant was in fact operating his motor vehicle while under the influence of intoxicating liquor." State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974); see also George, supra, 257 N.J. Super. at 497.

II

Equally substantial is the observational evidence of defendant's intoxication throughout the police encounter,1 which revealed the existence of many of the classic symptoms of intoxication. See State v. Johnson, 42 N.J. 146, 166-67 (1964). As noted, both officers detected an odor of alcohol on defendant's breath and observed his slurred speech and loss of balance on several occasions. Officer Hurley also observed defendant's bloodshot eyes and mood swings. Indeed, defendant was hostile and offensive to both officers. He also failed to satisfactorily perform the field sobriety tests, failing to follow Officer Hurley's directions while attempting to perform the one-leg stand test and walk-and-turn test. Equally telling were defendant's evasive actions during administration of the Alcotest. In sum, the totality of the police observations fully supports the conclusion that defendant was intoxicated at the time he operated the vehicle.

III

There is also sufficient credible evidence of defendant's disorderly conduct. A person is guilty of the petty disorderly

persons offense of disorderly conduct "if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he . . . [c]reates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor." N.J.S.A. 2C:33-2a(2); State v. Stampone, 341 N.J. Super. 247, 254-55 (App. Div. 2001).

The evidence clearly indicates that by defying repeated and explicit police directives, creating a scene by screaming and yelling profanities at the police, thereby attracting the attention of a gathering crowd, and stopping his vehicle in the middle of a commercial parking lot open to the public, defendant acted recklessly with respect to the public, causing inconvenience, annoyance or alarm as well as a hazardous or physically dangerous condition. We are satisfied therefore that the State proved defendant's guilt of disorderly conduct beyond a reasonable doubt.

IV

We deem defendant's remaining contentions without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 A violation of N.J.S.A. 39:4-50(a) may be proven "through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004)).

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