STATE OF NEW JERSEY v. DANIEL ZIERTEN

NOT FOR PUBLICATION WITHOUT THE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.

DANIEL ZIERTEN,

Defendant-Appellant.

___________________________________

December 9, 2015

Argued December 2, 2015 - Decided

Before Judges Sabatino and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-34-13.

Peter J. Bonfiglio, III, argued the cause for appellant (Law Offices of Hoffman DiMuzio, attorneys; Mr. Bonfiglio, on the brief).

Vanessa I. Craveiro, Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Ms. Craveiro, on the brief).

PER CURIAM

Defendant Daniel Zierten appeals the Law Division's June 27, 2014 judgment of conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, following its de novo review of his conviction of that offense in the municipal court. Defendant, who has twice before been convicted of DWI, principally argues that the State's proofs were insufficient to establish that he was the operator of the vehicle at the time in question. For the reasons that follow, we affirm.

The record shows that at 1:23 a.m. on July 5, 2013, a Washington Township patrolman, Officer Giuseppe Morici, received a dispatch report of a motor vehicle accident within the Canterbury Mews townhouse complex. The dispatch was based on calls from neighbors reporting the crash. When he arrived at the complex approximately twelve minutes later, Officer Morici observed several wooden pillars that appeared to have been run over, along with tire marks indicating that a car had left the paved roadway and struck the pillars. The officer continued to drive around the complex and saw a white Hyundai parked in the center area of a cul-de-sac. The vehicle had visible damage to its front end and its driver's-side door.

Although he did not see the Hyundai being driven, Officer Morici did observe a man get out of the vehicle on its driver's side. The man, later identified as defendant, was alone. The officer described defendant as "stumbling and staggering" toward a townhouse and "swaying side to side as he crossed the street." The officer approached defendant and informed him that he was investigating a hit-and-run accident. The officer noticed that defendant had dropped his house keys several times while attempting to gain access to his residence, that he had slurred and slow speech, bloodshot eyes, a flushed face, and smelled of alcohol.

Defendant presented identification, and was asked what happened. According to the officer's unrefuted testimony, defendant responded, "I was trying to run to Wawa for some cigarettes[,]" or words to that effect. Defendant further stated that he never made it out of the complex. The officer issued Miranda1 warnings, and asked defendant if he had anything to drink. In reply to the officer's question about whether "he had anything to drink prior to operating his vehicle," defendant acknowledged that he had consumed "a couple of beers."

The officer administered field sobriety tests to defendant, which he failed. The officer arrested defendant and brought him down to the police station. According to the officer's unrefuted testimony, defendant rambled during the trip in the squad car about "how this was his third [DWI] offense and [that the officer] ruined his life." At the station, defendant was administered the Alcotest, which measured his blood alcohol content (BAC) at .25 BAC, far above the legal limit. See N.J.S.A. 39:4-50(a).

Defendant does not contest that he was intoxicated at the time he was encountered by Officer Morici. Instead, he disputes that he was the operator of the Hyundai. Although defendant did not testify himself at the municipal trial, he presented testimony from his fiancé, Leanne Connel, the owner of the Hyundai. Connel asserted that only she, not defendant, had driven the vehicle at that time of the evening. According to Connel, she and defendant had argued around midnight about his lack of cigarettes. She agreed to drive her car and go get some for him. She testified that, as she began driving out alone, she noticed that her wristlet and cell phone had slid across the car. As she allegedly reached to grab these items, she lost control of the car and smashed through a guardrail. After determining that the car was still operable, she then drove it back to her unit.

Connel further claimed that, when she got back to the townhouse, she told defendant about the accident, blaming him because he had caused her to leave to buy cigarettes. She stated that she threw her car keys at him, stormed off, and went to bed. She claimed that she did not know why defendant left the unit thereafter, although the defense suggested at trial that defendant had returned to the vehicle in order to inspect the damage or to retrieve documents.

The municipal court judge concluded that the State had proven beyond a reasonable doubt that defendant had operated the vehicle while intoxicated, in violation of N.J.S.A. 39:4-50. The municipal judge found the police officer's testimony recounting his observations "very credible," and noted that they were unrebutted by any contrary testimony. The municipal court judge also found significant defendant's admission that he had been attempting to "run to the Wawa"2 to buy cigarettes. The judge specifically found Connel's testimony was not credible, deeming it "contrived" and a "last ditch effort" to protect defendant from prosecution.

On de novo review, the Law Division judge, Hon. Walter L. Marshall, Jr., agreed that the State had proven its case beyond a reasonable doubt. In particular, Judge Marshall found significant that defendant had been observed exiting the car from its driver's side shortly after the accident, and that he had essentially admitted to the officer that he had been attempting to drive the vehicle to Wawa. The court upheld the municipal court judge's imposition of a 180-day jail term mandated by N.J.S.A. 39:4-50(a)(3), along with suspension of his driver's license and customary monetary penalties, all of which were stayed pending appeal by the trial court.

On appeal, defendant raises these points for our consideration

POINT I

There Is Not Sufficient Credible Evidence In The Record To Prove Beyond A Reasonable Doubt That Mr. Zierten Was The Operator Of The Motor Vehicle.

POINT II

The Law Division Judge Erred In Giving Any Regard To The Municipal Court Judge's Credibility Determinations.

POINT III

The Law Division Judge Erred In Relying Upon The Silence of Mr. Zierten And Ms. Connel In Making Credibility Determinations And In Reaching A Decision On Mr. Zierten's Guilt Or Innocence.

In evaluating these arguments and the decisions of the municipal court judge and Law Division judge, we are mindful of our limited scope of review. The critical disputed issue of operation in this case was largely a question of credibility. As the Supreme Court has instructed, "[a]ppellate courts should defer to the trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experiences that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). Where, as here, consistent factual findings are made by both a municipal court judge and a Law Division judge on de novo review, "the rule of deference is more compelling[.]" Ibid. Applying this "two-court rule," we "ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by [those] two lower courts absent a very obvious and exceptional showing of error." Ibid. We discern no such "obvious and exceptional" error here.

Defendant criticizes the limited extent to which the municipal court judge delved into Officer Morici's experience. We are satisfied that the officer, who graduated from the police academy in 2000 and who has been with the police force for over a decade, has sufficient experience for the judge to have found his testimony about his investigation to be credible.

Defendant also faults the officer for failing to take certain steps, such as feeling the hood of the Hyundai to see if the engine was still warm. Although we acknowledge that doing so could have been evidentially helpful in corroborating defendant's recent operation of the car, it was not essential to the State's case. The circumstantial evidence including defendant's observed exit from the driver's side of the car, the fact that he was alone in the car, his staggering, and his statements against interest about having attempted to go to Wawa and concerning his "third offense" all, in combination, provide ample credible evidence establishing he had recently operated the vehicle. Moreover, we agree with the municipal court judge's observation that even if a "perfect" investigation might have yielded more proof of guilt, there was sufficient proof presented to satisfy the State's burden.

Under our case law construing N.J.S.A. 39:4-50, a defendant need not have been directly observed to have been operating the vehicle while under the influence of alcohol. Operation may also be established "by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated." State v. Ebert, 377 N.J. Super. 1, 11 (App. Div. 2005) (emphasis added); see also State v. Mulcahy, 107 N.J. 467, 476 (1987). Alternatively, a defendant's admission (such as his "Wawa" remark and his statement in the police car about his "third time" offense) can also establish his illegal operation. Ebert, supra, 377 N.J. Super. at 11; see also State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.), certif. denied, 88 N.J. 506 (1981).

The fact-finder here had the prerogative to disbelieve Connel's uncorroborated narrative. The narrative was rather implausible on its face, given the damage to Connel's car and her alleged indifference to the situation. Further, as the municipal judge noted, this account was provided by a witness who is defendant's fiancé and thus reasonably considered to have a potential bias in his favor.

Defendant further contends that the municipal court judge and Judge Marshall both erred by mentioning in their recitations of the facts that Connel had been silent when the police officer encountered her and did not claim to be the driver of the car until the time of trial. Defendant relies in this regard on State v. Stas, 212 N.J. 37, 42 (2012), which prohibits the substantive use of certain pre-arrest silence of a co-defendant as proof of guilt in a DWI prosecution. We need not resolve whether the fiancé's silence could have been used substantively in this case, because neither the municipal court judge nor the Law Division judge relied on her silence as a basis for the guilty finding. In fact, the municipal court judge explicitly stated in his opinion that he was not considering her silence. Even if he had done so, there is sufficient other evidence of defendant's operation in the record to negate the fiancé's contrary claim.3

Similarly, we find unpersuasive defendant's claim that the Law Division improperly used his own failure to deny that he was the driver as substantive proof against him. The judge was simply pointing out what defendant's actual response was to the officer's query, rather than treating any silence or omission by him as a basis for the determination of guilt.

Affirmed. All stays are dissolved, effective immediately. Defendant shall surrender his license to the Law Division forthwith and the Law Division shall determine the timing of the commencement of his jail term.

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

2 At oral argument before us, defense counsel acknowledged that, assuming the statement was made, he was not contending that the word "run" in this context should be construed literally to mean that defendant had tried to run on foot to the store.

3 Given our treatment of this issue, we need not consider whether Connel's silence could permissibly be used to impeach her later testimony and the limited exception for credibility impeachment recognized in Stas, supra, 212 N.J. at 56-68.