STATE OF NEW JERSEY v. GRZEGORZ PIROG

NOT FOR PUBLICATION WITHOUT THE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.

GRZEGORZ PIROG,

Defendant-Appellant.

______________________________________

July 2, 2014

Argued May 5, 2014 Decided

Before Judges St. John and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-74-12.

Amy E. Lefkowitz argued the cause for appellant (Law Offices of Curt J. Geisler, LLC, attorneys; Ms. Lefkowitz, on the brief).

Joseph W. Torre, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Jacqueline Choi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Grzegorz Pirog appeals his conviction for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50. Defendant entered a conditional plea of guilty after denial of his motion requesting a finding that he was not, as a matter of law, operating the vehicle. After a de novo hearing, the Law Division judge denied the motion, found operation and imposed the same sentence as imposed by the municipal court. We affirm.

The record of the municipal court and Law Division proceedings reveal the following. On September 11, 2011, at approximately 3:00 a.m., Sergeant Jeffrey Camiscioli of the Garfield Police Department was dispatched to the corner of Ray and Columbus Avenues in Garfield to respond to a report that an individual was passed out in a vehicle. Upon arriving at the scene, the sergeant encountered a black BMW with the headlights on and the engine running. Defendant was seated in the driver's seat and was asleep. The sergeant attempted to awaken defendant. After several attempts with no response, defendant awoke.

Upon request, defendant produced his driver's license, registration and insurance card. The sergeant asked defendant what he was doing in the area. Defendant responded that he only spoke Polish but then said, "home" and pointed across the street. The sergeant issued a summons to defendant, charging him with DWI.

Thereafter, defendant filed a motion asserting he was not operating his vehicle. The municipal court judge conducted an evidentiary hearing on the motion on November 29, 2011. The parties stipulated that if defendant's motion was denied, he would enter a guilty plea.

At the outset of the motion hearing, the municipal court judge framed the matter to be decided as a "probable cause issue, whether there was probable cause to make the arrest based upon the issue of operation."

At the conclusion of the testimony, the municipal court judge placed his findings of fact and conclusions of law on the record. The court found:

This comes before the court, a motion to suppress on the issue of operation of a motor vehicle . . . .

The defendant was behind the wheel ... as testified by the officer that he was asleep. The officer had to shake the defendant to wake him up. When he woke him up, he was slow in movement. There was a lack of communication based upon a language barrier between the police officer and the defendant. The only thing the defendant did say is the word home, and home was in the area of Columbus and Ray. It was never established his exact address.

The court must decide whether there was probable cause based upon operation on that to arrest the defendant . . . .

I find that the defendant was found in his vehicle, and I find beyond a reasonable doubt that the defendant was found in his vehicle with the engine running and the lights on . . . .

[H]e was parked on a public street. The fact that he had a blood alcohol level of 2.24 [sic]. The fact that the engine was running and the fact that the lights were on and he was not parked in front of his own house, therefore, I find the defendant is guilty of operating his vehicle beyond a reasonable doubt. Based upon that, your motion is denied.

Defendant pled guilty to DWI, conditioned upon the outcome of an appeal challenging the denial of his motion with regard to operation. After the court accepted the plea, the judge imposed the minimum fines, penalties and period of driving privilege suspension. The sentence was stayed for twenty days to permit defendant to file an appeal.

On April 10, 2012, the appeal was heard de novo before the Law Division. After oral argument and consideration of the briefs, the Law Division judge made findings based on the municipal court record as well as independent findings. The Law Division judge stated:

I've had enough oral argument to help me decide this case. I have read the briefs and looked at the transcript.1

De novo I will deny the suppression motion. De novo I find that there was sufficient information here based upon the testimony and based upon the case law in [State v. George, 257 N.J. Super. 493 (App. Div. 1992)]. We have a car that not only is the driver in the driver's seat, not only are the keys in the ignition, we go one step further. We have the engine actually running. Clearly an intent to operate.

Upon the denial of the suppression motion, the court imposed the same fines and penalties as imposed in the municipal court.

Subsequent to the decision, counsel for defendant addressed the court about a "procedural" issue relative to the municipal court judge's finding that defendant operated the vehicle "beyond a reasonable doubt." The Law Division judge advised that he was making his ruling based upon the motion and that the motion to suppress "was properly denied." Notwithstanding the court's observation, the Law Division judge remanded the case to the municipal court "for further findings." The State objected to the remand arguing that the Law Division had the authority to decide the suppression motion de novo, without the need for further review by the municipal court.

Pursuant to the remand, on August 29, 2012, the case was heard before a different municipal court judge. That judge held that although the wrong standard of review had been applied by the prior municipal court judge, the standard of proof employed was higher than required. For that reason the municipal court judge again denied defendant's suppression motion. The judge imposed the same sentence as previously imposed. The sentence was stayed pending appeal.

On January 7, 2013, the Law Division judge who heard the first appeal, ruled de novo that there was probable cause for the arrest of defendant based upon the record below. The judge then denied defendant's motion to vacate the conditional guilty plea. The judge stayed the sentence pending appeal.

On appeal, defendant presents the following arguments:

POINT I

[T]he totality of the circumstances justifies a reversal of the court's decision to not hold further proceedings with regard to operation of the motor vehicle.

POINT II

[D]efendant should be permitted to vacate the conditional plea and not have the conditional plea be used against him based upon the improper standard used against him in the decision of the court.

POINT III

[T]he totality of the circumstances justifies a reversal of the finding that defendant operated the motor vehicle beyond a reasonable doubt.

In an appeal from a de novo hearing on the record, we consider only the action of the Law Division and not that of the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). When the Law Division conducts a hearing de novo on the record developed in the municipal court, our review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)).

"'Appellate courts would 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 experience that are not transmitted by the record.'" Ibid. (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62).

At the hearing on the first appeal, the Law Division judge made independent findings reflected in his oral opinion. We defer to those findings. However, our review of legal determinations is plenary. See State v. Handy, 206 N.J. 39, 45 (2011).

On appeal, defendant argues that the municipal court judge employed the wrong standard of proof in determining the motion. Assuming that the first municipal court judge employed the wrong standard of proof, the standard employed was more exacting than required.

Standards of proof differ, depending upon their application. The State must prove guilt beyond a reasonable doubt. However, probable cause to arrest is determined by a preponderance of the evidence. See, e.g., State v. Brown, 205 N.J. 133, 144 (2011). In short, for an arrest, "there must be probable cause to believe that a crime has been committed and that the person sought to be arrested committed the offense." State v. Chippero, 201 N.J. 14, 28 (2009) (citation and internal quotation marks omitted). Although it is difficult to define the concept with precision, probable cause requires "more than a mere suspicion of guilt" but less evidence than is needed to convict at trial. State v. Basil, 202 N.J. 570, 585 (2010) (citations omitted). We note that employment of the beyond-a-reasonable-doubt standard did not inure to the benefit of the State. Rather, it inured to the benefit of the defendant.

Significantly, the Law Division judge initially denied defendant's motion, finding that the officer had probable cause to arrest defendant for DWI based on operation of the vehicle. The record supports that finding. Moreover, as the State maintained, since the Law Division could resolve that issue de novo, there was no need to remand the matter to the municipal court for further fact-finding. Nevertheless, on remand, the municipal court again found the officer had probable cause to arrest defendant for DWI. The Law Division judge and the municipal court judge on remand applied the correct standard of proof. In the second appeal, the Law Division judge reached the same conclusion.

We next address defendant's argument that the Law Division judge's finding that there was probable cause that he was operating the vehicle when the officer came upon the scene was in error. Upon a review of the record, and after a consideration of the standard of review, we hold that the findings by the Law Division judge were supported by sufficient credible evidence and were in accord with controlling decisions of law.

The term "operates" as used in N.J.S.A. 39:4-50(a), has been broadly interpreted. See State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988); State v. Mulcahy, 107 N.J. 467, 477-81 (1987); State v. Morris, 262 N.J. Super. 413, 417-20 (App. Div. 1993). "Actual operation is not required to satisfy the element." State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005). "Operation may be proved by any direct or circumstantial evidence as long as it is competent and meets the requisite standards of proof." George, supra, 257 N.J. Super. at 497. "Operation" may be proven by: actual observation of the defendant driving while intoxicated, observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, or admission by the defendant. See also Ebert, supra, 377 N.J. Super. at 9-12 (affirming defendant's DWI conviction based on her statements which led police to believe she had recently driven the car, which she had reported stolen, to the restaurant where police found it parked on the other side of the building); Mulcahy, supra, 107 N.J. at 476; State v. Hanemann, 180 N.J. Super. 544, 554 (App. Div.) (affirming defendant's DWI conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 506 (1981); State v. Guerrido, 60 N.J. Super. 505, 509-10 (App. Div. 1960) (affirming defendant's conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found "buried full length in some shrubbery and lilac bushes").

While there is no direct evidence that defendant operated the vehicle, there is substantial circumstantial evidence which supports that finding. When the sergeant arrived at the scene, the defendant was in the driver's seat with the engine running and the headlights on. We discern no reason to disturb the Law Division judge's determination after the initial de novo hearing that there was probable cause to arrest defendant based upon operation of the vehicle.

Finally, we find no basis to vacate the conditional plea. Defendant raised this argument on the second appeal, which the Law Division judge denied. As we noted above, defendant agreed to plead guilty upon the denial of the motion. Further, defendant has not asserted, either before the Law Division judge or on appeal, a colorable claim of innocence nor any other justiciable ground to satisfy the requirements for withdrawal of his plea. See State v. Slater, 198 N.J. 145, 157-58 (2009). Rather, defendant has asserted that the denial of the motion was erroneous. We disagree.

Affirmed.

1 The transcript of the municipal court proceedings included the testimony of the sergeant. The sergeant testified that he had to vigorously shake defendant awake, the defendant had "bloodshot eyes," and his voice was slow.