STATE OF NEW JERSEY v. KUNTAL H. SHAH

NOT FOR PUBLICATION WITHOUT THE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.

KUNTAL H. SHAH,

Defendant-Appellant.

________________________________________________________________

November 7, 2013

Submitted July 30, 2013 Decided

Before Judges Espinosa and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 06-12.

Thomas J. Butler, Jr., attorney for appellant.

Gaetano T. Gregory, Acting Hudson County Prosecutor,attorney forrespondent (StephanieDavis-Elson, SpecialDeputy AttorneyGeneral/ ActingAssistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his conviction for driving while intoxicated, N.J.S.A. 39:4-50, arguing that there was insufficient evidence to support his conviction and that the automobile in question was inoperable. We affirm.

New Jersey State Police Troopers Patel and Battaglia came upon a disabled vehicle on the Garden State Parkway on March 9, 2011. Defendant was seated in the driver's seat and told the troopers that the automobile had run out of gas. Nirav Patel was seated in the passenger seat.

Upon questioning defendant, Trooper Patel detected an odor of alcohol coming from the automobile and asked defendant if he had consumed any alcoholic beverages. Defendant admitted drinking three or four beers. Trooper Patel asked defendant to perform field sobriety tests and, based upon his performance, he was arrested for driving while intoxicated.

At trial, there was conflicting evidence as to whether defendant had driven the automobile. Trooper Patel testified that he asked defendant if he was driving the car after arresting him, providing him with Miranda1 warnings, and placing him, handcuffed, in the troop car. According to Trooper Patel, defendant responded that he was. Trooper Patel said he also asked defendant if he had consumed any other alcoholic beverages after the car became disabled and defendant replied that he had not. Defendant testified that he did not drive the car that evening and denied telling Trooper Patel that he drove the car. He also presented Patel, who testified that he had been the driver of the car when it ran out of gas and had advised Trooper Battaglia of that fact at the scene.

The trial court made appropriate findings as to the credibility of the witnesses in resolving this factual dispute. The municipal court judge found Trooper Patel's version of events credible and did not find the testimony of defendant and his witness credible. In addition, the court drew upon the facts that the automobile was found on the side of the Garden State Parkway and defendant's statement that he was en route from Edison to Kenilworth to conclude that the automobile had been operated prior to running out of gas.

On appeal, the Superior Court gave due regard to the municipal court's credibility determinations, State v. Johnson, 42 N.J. 146, 157 (1964). The court's findings, as adopted by the Superior Court, are entitled to our deference as well. State v. Locurto, 157 N.J. 463, 474 (1999). "As an appellate court, we do not make independent findings of fact." State v. Minitee, 210 N.J. 307, 317 (2012). We are required to "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Robinson, 200 N.J. 1, 15 (2009) (internal quotation marks and citation omitted).

Given the trial court's conclusion that Trooper Patel's testimony was credible and the inference drawn from the facts admitted by defendant, there was sufficient evidence in the record to support defendant's conviction.

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