STATE OF NEW JERSEY v. JAMES J. MORGAN

NOT FOR PUBLICATION WITHOUT THE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.

JAMES J. MORGAN,

Defendant-Appellant.

____________________________________________

October 8, 2014

Submitted September 30, 2014 Decided

Before Judges Nugent and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-077.

Trautmann & Associates, L.L.C, attorneys for appellant (Gregg D. Trautmann, on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a de novo determination denying defendant's motion to dismiss the charge of driving while intoxicated, N.J.S.A. 39:4-50. We affirm.

The following facts are derived from the record of defendant's plea allocution. On June 27, 2012, defendant was in the Rutgers Village Apartment Complex when Officer Marc Fernandez of the Parsippany-Troy Hills Police Department entered the lot on an unrelated incident. Defendant was urinating while standing outside a pick-up truck. Defendant admitted to the officer he had consumed alcoholic beverages and was intoxicated. When the officer approached, defendant entered his truck. The keys were in the ignition. Defendant turned the key and started the truck.

Defendant was arrested for driving while intoxicated, in violation of N.J.S.A. 39:4-50. Defendant filed a motion to dismiss, arguing that he could not be charged for driving while intoxicated while on private property per N.J.S.A. 39:5A-1. On March 12, 2013, the Municipal Court judge heard oral argument and denied defendant's application. Defendant entered a conditional plea. The court stayed defendant's sentence pending appeal to the Law Division.

On September 5, 2013, after a de novo hearing, the Honorable Robert J. Gilson, J.S.C., entered an order finding defendant guilty of driving while intoxicated.

In the statement of reasons affixed to the order, Judge Gilson concluded

Nothing in the language of 39:5A-1 restricts the application of 39:4-50 on private property. Put differently, the statute, as written, does not restrict the ability of the State, through a duly enacted statute, to apply a particular statute or regulation on private property. Instead, properly read, N.J.S.A. 39:5A-1 merely allows private property owners to request that all motor vehicle laws under Title 39 be applicable to and enforceable on their private property. Although [State v. Garbin, 325 N.J. Super. 521 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000); State v. Magner, 151 N.J. Super. 451 (App. Div. 1977); State v. McColley, 157 N.J. Super. 525 (App. Div. 1978), and; State v. Gillespie, 100 N.J. Super. 71 (App. Div.), certif. denied, 51 N.J. 274 (1968)] do not directly reference N.J.S.A. 39:5A-1, they do not limit the application of 39:4-50. Garbin, and the relevant line of cases, all stand for the proposition that 39:4-50 applies anywhere, without regard to the nature of the location. Thus, specific language of 39:4-50 applies over the general language of 39:5A-1. To read more into N.J.S.A. 39:5A-1, as defendant's position requires, would allow a private property owner to overturn legislative intent by opting out of the enforcement of drunk driving laws on private property. A plain reading of N.J.S.A. 39:5A-1 simply does not support such an interpretation of that statute. [(citations added)].

After careful review of the record in light of the issue raised, we reject the argument asserted by defendant. We affirm for the reasons stated in Judge Gilson's comprehensive and thoughtful decision.