STATE OF NEW JERSEY v. DIRK CANCELOSI

NOT FOR PUBLICATION WITHOUT THE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.

DIRK CANCELOSI,

Defendant-Appellant.

__________________________________

March 21, 2016

Argued March 2, 2016 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 22-6-15.

Robert J. Pinizzotto argued the cause for appellant (Law Offices of Robert J. Pinizzotto, LLC, attorneys; Mr. Pinizzotto and Nicole E. Wise, on the briefs).

Courtney Cittadini, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Ms. Cittadini, of counsel and on the brief).

PER CURIAM

Defendant Dirk Cancelosi appeals from his December 7, 2015 judgment of conviction, after a trial de novo on November 9, 2015, of driving while under the influence of intoxicating liquor (DUI), N.J.S.A.39:4-50. Defendant contends the State failed to prove beyond a reasonable doubt that he operated his vehicle or intended to do so when he was arrested on March 22, 2015. He also asserts the municipal court judge and the municipal prosecutor should have been recused, and the statutory scheme of the municipal courts violated his due process rights. Having considered defendant's arguments in light of the facts and applicable law, we affirm.

I.

The issue of operation was the only contested issue in the trial before the municipal court. The sole witnesses were Matthew Coleman, an employee of Caroline's restaurant and bar, and Somers Point Police Officer Michael Price.

Coleman worked as a bar-back on March 22, 2015. One of his duties was carrying bottles out to a recycling bin located in the restaurant's parking lot. Caroline's closed at 2:30 a.m. on March 22nd. At around 3:30 a.m., Coleman brought a load of bottles out for recycling and noticed a dark truck in a parking stall in the lot. The engine was running and the lights were on. Coleman did not approach the vehicle. Although some customers had left their vehicles in the lot overnight, the truck was the only vehicle running. Coleman remained in the lot for five minutes to smoke a cigarette and then returned to the restaurant to complete his work.

At around 4:15 a.m., Coleman left the restaurant to head home. He noticed that the same dark truck had moved about twenty-five feet, and was stopped in the middle of the traffic lane of the lot. Its lights were on and the engine was running. Coleman approached the car, peered in through the tinted windows, and saw defendant asleep in the driver's seat. He was alone. Coleman knocked on the window, but there was no response. Concerned that the driver might need assistance, Coleman then called 9-1-1.

Price arrived several minutes later and found defendant's truck. He peered into the truck and noticed the gear shift was in park. He knocked on the window, but was unable to arouse defendant. He opened the unlocked driver's door and yelled, "excuse me, sir[,]" but defendant was still non-responsive. Price then grabbed defendant's arm, which awakened and startled him. Price testified defendant "started punching the steering wheel . . . as well as rev[ving] the engine." He continued to keep his foot "locked" on the gas pedal, revving the engine. Concerned that defendant might shift the car into drive, Price repeatedly commanded him to cease revving the engine. Defendant did not comply, so Price physically pulled defendant out of the vehicle.

Defendant stipulated that he performed poorly on field sobriety tests that were subsequently administered. He also stipulated that his speech was slurred, his eyes were bloodshot and watery, and he emitted an odor of alcoholic beverages. He also stipulated to admission of the chemical breath test results, which indicated a blood alcohol content of .24.

The municipal court denied defendant's motion to recuse the judge and the prosecutor, and his motion to declare the statutory scheme of the municipal courts unconstitutional. The court found defendant guilty of driving under the influence. This was defendant's third conviction his prior convictions were in 1990 and 1993. The court imposed a mandatory 180-day jail term, suspended his driving privileges for ten years, required an ignition interlock for the suspension period plus three years, required twelve hours in the Intoxicated Driver Resource Center, and imposed mandatory fines, fees and surcharges. The Superior Court thereafter granted a stay of the jail portion of the sentence pending the municipal appeal.

After a trial de novo in Superior Court, Judge John C. Porto found defendant guilty and imposed the same sentence imposed by the municipal court. Judge Porto also rejected defendant's arguments that the municipal judge and prosecutor should have been recused and that the municipal court system is unconstitutional.

In a thorough oral opinion, Judge Porto reviewed the testimony and the case law governing the "operation" element of a DUI violation:1

Operation may be proved by "direct or circumstantial evidence, as long [as] [i]t is competent and meets the requisite standards of proof." State v. Ebert, 377 N.J. Super. 1, 4 (App. Div. 2005).

The inquiry into operation "revolves primarily around the defendant's intent to operate the vehicle." . . . State v. Tischio, 107 N.J. 504, 527 (1987); State v. Daly, 64 N.J. 122, 125 (1973); State v. Stiene, 203 N.J. Super. 275, 278 (App. Div.), certif. denied, 102 N.J. 375 (1985); and State v. Prociuk, 145 N.J. Super. 570, 573-74 (App. Div. 1976).

The Court must define operation broadly in order to further the objectives of the Legislature to deter and prevent driving while intoxicated. State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993).

The engine of the vehicle does not need to be engaged to find that there was operation. [Stiene,] supra, 203 N.J. Super. at 279.

There does not have to be any movement of the vehicle to establish operation. State v. Sweeney, 40 N.J. 359, 360-61 (1963).

The court found that defendant was under the influence of intoxicating liquors and had the intent to drive the vehicle. Defendant demonstrated that intent by continuing to rev the engine, despite Officer Price's command that he stop. Citing Stiene, the judge found that only defendant's lack of awareness prevented him from putting the vehicle in gear.

The court also found that defendant operated the vehicle by driving it from the spot where Coleman saw it at 3:30 a.m. to the place in the traffic lane where Coleman spotted it roughly forty-five minutes later. The court found that the parking lot was open to the public and devoted to public use, and defendant had driven the truck toward the exit.

Judge Porto declined to stay imposition of the jail portion of defendant's sentence. A different panel of our court stayed the jail sentence and ordered that bail be set pending appeal, and the appeal was accelerated.

Defendant raises the following points for our consideration

I. THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT WAS OPERATING A MOTOR VEHICLE, AND ACCORDINGLY THE DEFENDANT MUST BE ACQUITTED OF ALL CHARGES.

II. THE COURT ERRED IN DENYING DEFENDANT'S MOTION SEEKING RECUSAL OF THE MUNICIPAL COURT JUDGE WHO SAT BELOW.

III. THE STATUTORY SCHEME OF THE MUNICIPAL COURT IN THE STATE OF NEW JERSEY VIOLATE[S] THE RIGHTS OF THE DEFENDANT TO DUE PROCESS UNDER THE CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION OF THE STATE OF NEW JERSEY.

IV. THE COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUEST FOR THE COURT TO RECUSE THE MUNICIPAL PROSECUTOR: THE MUNICIPAL PROSECUTOR IS NOT A FAIR AND IMPARTIAL ADVOCATE AS REQUIRED BY NEW JERSEY'S SYSTEM OF JUSTICE AND MUST BE DISQUALIFIED/RECUSED FROM PROSECUTING THE WITHIN MATTER.

II.

In reviewing a trial court's decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the Law Division's decision. State v. Johnson, 42 N.J.146, 162 (1964). Unlike the Law Division, which conducts a trial de novo on the record, Rule3:23-8(a)(2), we do not independently assess the evidence. State v. Locurto, 157 N.J.463, 471 (1999). In addition, under the two-court rule, only "a very obvious and exceptional showing of error" will support setting aside the Law Division and municipal court's "concurrent findings of facts. . . ." Id.at 474. However, we exercise plenary review of purely legal determinations. State v. Adubato, 420 N.J. Super.167, 176 (App. Div. 2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)), certif. denied, 209 N.J.430 (2012).

Applying this standard of review, we affirm defendant's conviction substantially for the reasons set forth in Judge Porto's cogent oral opinion. Given the compelling circumstantial evidence, we discern no error in the findings that defendant drove his vehicle across the parking lot sometime between 3:30 a.m. and 4:15 a.m. and did so while under the influence of intoxicating liquor. Furthermore, there is sufficient record evidence that defendant intended to drive his vehicle after Price confronted him, as he continued to rev the engine despite repeated commands to stop.

We find no merit in defendant's argument that the municipal court system is unconstitutional. Defendant reasons that the system by which revenues from DUI fees are shared with the municipalities undermines the independence of the court. We start with the presumption that the statutory scheme is constitutional. Whirlpool Props., Inc. v. Dir., Div. of Taxation, 208 N.J.141, 175 (2011). Although mayors or governing bodies appoint municipal court judges, N.J.S.A.2B:12-4(b), the municipal courts are part of the state-wide judicial branch of government, and are subject to the Court's oversight. SeeKagan v. Caroselli, 30 N.J.371, 377, 379 (1959); N.J. Const.art. VI, 2, 3; see alsoIn re Yengo, 72 N.J.425, 431 (1977) (describing history of municipal courts under 1947 Constitution). The fact that municipal court proceedings may generate revenue for the municipality does not undermine their independence.

We also find no merit in defendant's argument that the municipal judge should have recused himself. Defendant contends that the judiciary is not impartial because it has adopted the Legislature's policy goal of eradicating drunk driving. The Court is committed to processing DUI cases efficiently. SeeTischio, supra, 107 N.J.at 514. In applying the drunk driving laws, the courts have appropriately considered the Legislature's intent to combat drunk driving. Ibid. Our Court emphasizes that, in enforcing the drunk driving laws, members of the judiciary are held to the same standard as the general public. In In re Collester, which involved discipline of a judge who was twice convicted of DUI, the Court endorsed "the governmental commitment to the eradication of drunk driving as one of the judiciary's own highest priorities." 126 N.J.468, 473 (1992).

These expressions merely reflect that courts give effect to legislative intent, but do not undermine our courts' ability to impartially preside over DUI prosecutions. No further comment on defendant's arguments is warranted in a written opinion. R.2:11-3(e)(2).

Affirmed. The previously ordered stay of the custodial portion of the sentence is vacated, and bail is revoked, effective five days from the release of the opinion. See R. 1:3-1.

1 We have revised the judge's opinion to include the complete citations of the cases he referenced.