STATE OF NEW JERSEY v. ETHEL F. WALLACE

NOT FOR PUBLICATION WITHOUT THE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.

ETHEL F. WALLACE,

Defendant-Appellant.

March 24, 2015

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 8-538671.

Howard W. Bailey argued the cause for appellant.

Barbara Drasheff, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Drasheff, on the brief).

PER CURIAM

Defendant appeals from her de novo convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breath test, N.J.S.A. 39:4-50.4 A. 1 Defendant argues that her convictions should be vacated because the State failed to show that she operated her vehicle while intoxicated. We affirm.

This case was tried in the municipal court on March 25, April 19, and May 10, 2013. Jersey City Patrol Officer Pete Clavero testified that in the early morning of December 16, 2012, in response to the report of a motor vehicle accident, he responded to the parking lot of a White Castle restaurant. There, he found defendant sitting in the driver's seat of a vehicle stopped in the drive-through lane.

According to Officer Clavero, defendant's car was running, and there were cars stopped in front of and behind her. Defendant's window was down, and the car was in park. Officer Clavero spoke with defendant, and detected the odor of alcohol on her breath. Her eyes were watery and red, her face was flushed, her voice was loud, and her speech was slurred and stuttering.

Officer Clavero testified that he believed defendant was too intoxicated to undergo field sobriety tests, and he arrested her for DWI. In defendant's vehicle, he discovered an open and empty bottle of cognac, and a cup containing a beverage that smelled of alcohol. Officer Clavero then transported defendant to the police station, where he slowly and clearly read her the standard statement form about providing a breath sample. In response to the question, "Will you submit the samples of your breath?[,]" defendant responded, "No."

After Officer Clavero testified, the State rested its case, and defendant moved for a directed verdict of acquittal on all counts, arguing that there was insufficient evidence to show that defendant operated the vehicle prior to Officer Clavero's arrival on the scene, and that there was no proof of defendant's intoxication. The municipal court judge denied defendant's motion.

Defendant then testified, stating that she had been driven by some friends from a hair salon to the White Castle parking lot in her friend's car. They parked by the curb, rather than the drive-through lane, and purchased food inside the restaurant. On cross-examination, when asked where the car was located, defendant admitted, "It was parked at the curb. It was on the curb. I had parked that car." When asked how she came to be in the driver's seat, defendant testified

Because they were on their way to New York. They live in the City. We were just in the lot, you know, eating. And they left to leave. And before after they left we we were in the parking lot so we just went around to, you know, to get some more food before they left.

Defendant testified that, after her friends left, two women approached the car and began to yell, beating on the windows and hood of the vehicle. Defendant began to call the police when Officer Clavero arrived. Defendant said that Officer Clavero removed her from the vehicle and asked her to submit to a breath test. However, before she could reply, he threw her against the car and arrested her.

The municipal court judge issued an oral opinion at the end of the trial. She found Officer Clavero "to be a credible witness" but found defendant "wholly incredible[,]" stating

[T]he testimony presented by [defendant] was probably one of the most incredible stories I've ever heard. I found nothing that [defendant] said to be credible in any way, shape or form. Other than the fact that she was at White Castle I had great difficulty believing her version of events.

The judge found defendant guilty of all four charges. While the judge noted that the State failed to move any documentary evidence into the record, she concluded that the credible testimony of Officer Clavero was sufficient to prove the State's case beyond a reasonable doubt. The judge imposed an aggregate sentence of a seven-month suspension of defendant's driver's license followed by six months with an ignition interlock. The judge declined to stay the imposition of sentence pending appeal.

Defendant appealed her convictions to the Law Division, contending that her testimony was credible, that the State failed to show that she had operated the vehicle in public, and that the State failed to move documentary proof of her breath-test refusal into the record.

Following a trial de novo on the record, on February 3, 2013, Judge Fred J. Theemling, Jr., rendered an oral opinion which deferred to the municipal court judge's credibility findings. Judge Theemling found that, even by defendant's own account, she had admitted to parking the car at the curb, thereby establishing the operation element of N.J.S.A. 39:4-50. The judge also concluded that N.J.S.A. 39:4-50 did not distinguish between public and private locations, and that the State is not required to submit documentary evidence of defendant's breath-test refusal into the record. The judge found that the State proved "its case beyond a reasonable doubt as to all four offenses[,]" and imposed "the same sentence and penalties as previously imposed by the [m]unicipal [c]ourt."

This appeal followed, with defendant appealing her convictions for DWI and breath-test refusal. On appeal, defendant raises the following point

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO DISMISS THE CHARGES AT THE CONCLUSION OF THE STATE'S CASE, AS THE STATE FAILED TO PROVIDE ANY EVIDENTIAL BASIS TO ESTABLISH 'OPERATION' OF THE VEHICLE BY THE APPELLANT; AND THE MUNICIPAL APPEAL JUDGE ERRED WHEN HE ACCEPTED THE TRIAL COURT'S CONCLUSION THAT 'OPERATION' HAD BEEN PROPERLY ESTABLISHED.

We reject this argument and affirm substantially for the reasons set forth by Judge Theemling in his cogent oral opinion. We add the following comments.

Our scope of review is limited. Defendant's appeal arises out of the Law Division trial de novo on the municipal court record, and not from the municipal court's decision directly. R. 3:23-1; State v. Joas, 34 N.J. 179, 184 (1961); State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). Accordingly, the municipal court conviction is not directly before us here, and we disregard defendant's arguments regarding her motion to dismiss the municipal court case.

At trial de novo, the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the [municipal court] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964); State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012). In turn, our decision is limited to whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. However, we address issues of law de novo. Adubato, supra, 420 N.J. Super. at 176.

N.J.S.A. 39:4-50 prohibits the "operat[ion] [of] a motor vehicle while under the influence of intoxicating liquor[.]" Operation of a motor vehicle may be proved by direct or circumstantial evidence, so long as the evidence is competent and satisfies the standards of proof. State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). We have further held that

"Operation" may be proved 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. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant's 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. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974) (affirming defendant's conviction based on his admission to drinking and driving when the police woke him up in his parked car on Interstate 287); State v. Guerrido, 60 N.J. Super. 505, 509 (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[]").

[State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005) (citations omitted).]

Moreover, proof of defendant's intent to operate the vehicle is sufficient, regardless of whether defendant actually operated the vehicle. 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). "The vehicle's operating condition combined with defendant's presence behind the steering wheel permits the logical conclusion of an intent to drive." George, supra, 257 N.J. Super. at 497; see also State v. Mulcahy, 107 N.J. 467, 480 (1987) (finding probable cause to arrest for DWI where the defendant inserted his key into the vehicle's ignition); State v. Morris, 262 N.J. Super. 413, 419-20 (App. Div. 1993) (upholding DWI conviction where police stopped the defendant as he turned the key in the vehicle's ignition).

Here, we see no reason to doubt Officer Clavero's testimony or question Judge Theemling's acceptance of the municipal court judge's credibility determinations. The inconsistencies indicated by defendant are technical and inconsequential. Moreover, as Judge Theemling stated, defendant's contrary account is "curious at best." Accordingly, Judge Theemling properly credited Officer Clavero's account.

According to Officer Clavero, defendant was parked in line at a drive-through lane with her vehicle running. The record adequately supports the reasonable inference that defendant both drove the vehicle to that location, and that she intended to drive it through the rest of the drive-through lane to order and pick up her food. Even by defendant's own account, she parked the vehicle at the restaurant. As the record supports Judge Theemling's finding that defendant operated a motor vehicle while intoxicated, we affirm her DWI conviction.

Operation of a motor vehicle was the sole issue briefed on appeal. We will not address the other arguments defendant raised before the Law Division. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived."). Therefore, we affirm defendant's conviction for refusal to submit to the breath test.

Affirmed.

1 Defendant was also convicted of consumption of an alcoholic beverage in a motor vehicle, N.J.S.A. 39:4-51a, and possession of an open alcoholic beverage container in a motor vehicle, N.J.S.A. 39:4-51b. However, she has not appealed these convictions.