STATE OF NEW JERSEY v. SANG LEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2558-04T12558-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SANG LEE,

Defendant-Appellant.

_______________________________________________________________

 

Argued January 31, 2006 - Decided February 14, 2006

Before Judges Coburn, Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, BMA-003-15-03.

David Hoffman argued the cause for appellant

(Mr. Hoffman, on the brief).

Brandy B. Galler, Assistant Prosecutor, argued

the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Galler, of counsel

and on the brief).

PER CURIAM

On May 1, 2003, defendant Sang Lee was arrested by the Palisades Interstate Park Police and charged with driving while intoxicated, N.J.S.A. 39:4-50. A trial ensued, and he was found guilty based on the results of breathalyzer tests and based on the other evidence. At the conclusion of the trial de novo in the Law Division, the judge found that there were problems arising from the lower court's reliance on the breathalyzer and remanded for a further hearing as to that. But the Law Division judge also found Lee guilty of driving while intoxicated based on the police officers' description of the scene and Lee. The remand to the lower court did not result in a second trial; instead, the judge reiterated that Lee was intoxicated, noting that there was nothing of moment for him to decide since the Law Division judge had already found Lee guilty. When the matter returned to the Law Division, the judge reiterated his previous rulings, sentencing Lee to the same sentence he had received below.

On appeal to us, Lee offers the following arguments:

POINT I

THE LAW DIVISION ERRED IN ITS REMAND TO THE PALISADES INTERSTATE PARK POLICE COURT.

POINT II

NO EVIDENCE HAVING BEEN RECEIVED AT THE REMAND TRIAL, THE APPELLANT MUST BE FOUND NOT GUILTY.

POINT III

THE LAW DIVISION ERRED IN FINDING THE APPELLANT GUILTY OF THE SUBJECTIVE PRONG OF N.J.S.A. 39:4-50.

POINT IV

THE REMAND TO THE PALISADES INTERSTATE PARK POLICE COURT VIOLATED THE APPELLANT'S DOUBLE JEOPARDY RIGHTS UNDER THE CONSTITUTIONS OF THE UNITED STATES AND NEW JERSEY.

POINT V

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT HAD THE INTENT TO OPERATE HIS VEHICLE OR THAT THE VEHICLE WAS CAPABLE OF MOVEMENT.

POINT VI

THE STATE FAILED TO PROVE BY SUBJECTIVE EVIDENCE BEYOND A REASONABLE DOUBT THAT THE APPELLANT WAS OPERATING A MOTOR VEHICLE IN VIOLATION OF N.J.S.A. 39:4-50.

POINT VII

IF THE APPELLANT'S CONVICTION IS AFFIRMED, THE APPELLANT SHOULD BE SENTENCED IN ACCORDANCE WITH THE REVISED DWI STATUTE.

POINT VIII

SHOULD THE APPELLANT'S CONVICTION BE AFFIRMED, THE APPELLANT SHOULD BE GIVEN CREDIT FOR 58 DAYS SUSPENSION OF HIS DRIVING PRIVILEGE.

Although we agree with Lee that there was no justification for remanding the case to the municipal court, he was not prejudiced by that action. After considering the record and briefs, we are satisfied that all of Lee's arguments are without sufficient merit to warrant discussion in a written opinion,

R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by the Law Division judge in his written opinion filed on February 18, 2004. We note that intoxication and operation were clearly proved beyond a reasonable doubt. The police officer found Lee in his car about forty feet off the roadway, down an embankment. The car's lights were on and its motor was running. Lee was in the driver's seat, facing forward with his hands on the steering wheel. When Lee stepped from the car, the officer smelled alcohol. While walking up the embankment, Lee stumbled a couple of times. At the top, Lee was unsteady on his feet, swaying back and forth. He almost fell during the heel-to-toe test, and he smelled of alcohol and responded to questions slowly. He later performed poorly on some additional sobriety tests. That evidence fully supported the finding of the Law Division judge that Lee was driving and was intoxicated.

Affirmed.

 

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A-2558-04T1

February 14, 2006