STATE OF NEW JERSEY v. CATHERINE POUCH-MENDOLA

NOT FOR PUBLICATION WITHOUT THE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.

CATHERINE POUCH-MENDOLA,

Defendant-Appellant.

_______________________________

March 4, 2015

Submitted December 1, 2014 - Decided

Before Judges Lihotz and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 25-11.

Law Office of Robert Raskas, attorneys for appellant (Kathleen Drew, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Catherine Pouch-Mendola appeals from a May 15, 2012 Law Division order, following trial de novo, convicting her of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and improper parking, N.J.S.A. 39:4-135. The judge imposed the sentence originally prescribed by the municipal court consisting of applicable fines, court costs, a $200 DWI surcharge, a seven month license revocation, and twelve hours at the Drivers Resource Center. On appeal, defendant argues

POINT ONE

THE LAW DIVISION'S DECISION SHOULD BE REVERSED AS THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS "OPERATING" A MOTOR VEHICLE.

POINT TWO

THE LAW DIVISION'S DECISION SHOULD BE REVERSED DUE TO THE INEFFECTIVENESS OF DEFENDANT'S COUNSEL AT THE MUNICIPAL COURT LEVEL (NOT RAISED BELOW).

POINT THREE

THE LAW DIVISION'S DECISION SHOULD BE REVERSED SINCE IT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

We have considered the arguments in light of the record and applicable law. For the reasons discussed in our opinion, we affirm.

The following facts are taken from the municipal court opinion and the de novo findings made by Law Division Judge Ronald E. Hoffman. During the early morning of January 28, 2010, Jackson Township Police Officer Jody Benecke responded to a radio call reporting "a driver was passed out in a vehicle at the Wa[w]a convenience store." Officer Benecke arrived to find a vehicle parked "between two handicapped spots." Defendant was "in the front driver's seat, slumped over" with her car engine running. The officer's knocking on the window failed to awaken defendant, until the noise startled her dog, which began barking. Defendant eventually rolled down the driver's side window, emitting "an odor of alcohol . . . from the interior of the vehicle." Defendant "didn't know where she was" and appeared "dazed, confused . . . and disoriented." She admitted to having "a few drinks" a couple hours earlier.

Officer Benecke asked defendant to step out of her vehicle. Defendant, whose face was flushed, moved slowly and exhibited difficulty exiting her truck, leaning against the vehicle for support. When she failed field sobriety tests,1 defendant was placed under arrest and taken to the police station for a breath test. Police inventoried defendant s purse and found a pillbox containing "Methadone, Tylenol Extra Strength, Mylan A3, . . . Demerol, Lupin 50 and another pill thought to be Neurontin."

At the station, Officer Michael Grochowski observed defendant for twenty minutes, noting her eyes were watery and an odor of alcohol emanated from her breath. The breath test revealed a blood alcohol content of .06. Defendant remarked, "I knew I wouldn't be drunk. I took some medication for my pain, Demerol and Xanax."

A drug recognition expert, Officer Mark Rodina, was requested to examine defendant. When he arrived, defendant was "asleep with her feet up on a chair . . . [and her] mouth was open." Defendant told him she regularly took prescription medication for pain. She also admitted to being at a bar prior to driving to Wawa, and consuming "several drinks" including, vodka and Mike's Hard Lemonade.

Officer Rodina's physical examination revealed defendant's breath smelled of alcohol; her pulse was low and her heartbeat irregular; her pupils were constricted; her eyes were red and bloodshot, and did not react to light; and her muscle tone was flaccid. Defendant related prior injuries to her hands and legs caused pain, but she agreed to attempt psycho-motor tests, which she failed. During the balance and coordination test, defendant stepped off the line several times then missed her nose five of six times in the finger-to-nose test. Officer Rodina concluded defendant "was under the influence of a central nervous system depressant and alcohol and was unable to operate a vehicle safely." He also requested and received a urine sample from defendant.

Thomas Dooley, a forensic scientist employed by the State Police tested the sample, which he found positive for meperidine, a controlled dangerous substance, and gabapentin, a prescription drug, described as an anti-convulsant. Mr. Dooley testified both drugs were central nervous system depressants.

Defendant testified. She admitted to taking medication, consisting of Xanax, Demerol, and Neurontin, at 8 p.m. She drove to the Wawa in search of a friend's lost cell phone. Defendant explained her vehicle had an assisted steering wheel because of the pain in her injured hands; but the truck she drove to Wawa did not, making it more difficult for her to park. Refuting Officer Benecke's testimony, she asserted she turned the engine off when she parked. She also insisted she drank one mango slushy, which contained vodka, at 10:30 p.m. and three or four Mike's Hard Lemonade earlier in the day, at 4 p.m. Defendant admitted her medication was not giving her the necessary relief, so she "made the conscious choice to . . . consume some alcohol to enhance the impact of the medication."

The municipal court judge found defendant guilty. She appealed. In his de novo review, Judge Hoffman found the State's witnesses credible and defendant's version of events "lack[ed] credibility." The judge concluded the State's evidence proved beyond a reasonable doubt defendant operated her vehicle while under the influence of drugs and alcohol. The officers' observations showed defendant "exhibit[ed] all of the classic indicia . . . of being under the influence without taking into consideration the [psych-motor] tests." Judge Hoffman convicted defendant of DWI and the parking violation, for which he imposed the same sentence as the municipal court. This appeal ensued.

This record demonstrates the proper review of a municipal court conviction, which is first addressed by the Superior Court de novo. R. 3:23-8(a). The Law Division independently issues findings of facts and conclusions of law based on the record, as developed by the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). See also State v. Ross, 189 N.J. Super. 67, 75 (App. Div.) (stating the Law Division performs "an independent fact-finding function in respect of defendant's guilt or innocence"), certif. denied, 95 N.J. 197 (1983). Our review of that de novo decision is limited to "whether there was sufficient credible evidence in the record to have led to the judge's findings." Avena, supra, 281 N.J. Super. at 333. See State v. Locurto, 157 N.J. 463, 474 (1999) (stating the Appellate Division "should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error").

On appeal, defendant argues the facts fail to prove operation of a motor vehicle, a necessary element of a DWI offense. The issue for review presents a mixed question of fact and law: what constitutes "operation" and whether the evidence is sufficient to support defendant's DWI conviction.

N.J.S.A. 39:4-50(a) prohibits a motorist from operating a vehicle while under the "influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or . . . with a blood alcohol concentration of 0.08% or more . . . ." The term "operate," as used in N.J.S.A. 39:4-50(a), has been broadly interpreted. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005) ("Actual operation is not required to satisfy the element."); 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, 478-79 (1987). "Operation may be proved by any direct or circumstantial evidence - - as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992).

In Mulcahy, the Court noted

when one enters a car and puts one's self in the driver's seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation, at least sufficient to warrant an arrest for purposes of submission to [a] sobriety test . . . .

[Mulcahy, supra, 107 N.J. at 479.]

Thus, "operation" may be proved by observing the defendant in or near the vehicle under circumstances indicating that the defendant had just recently been driving while intoxicated. Id. at 476. A vehicle found in operating condition combined with a "defendant's presence behind the steering wheel" can support the finding that a defendant had an "intent to drive." George, supra, 257 N.J. Super. at 497; Tischio, supra, 107 N.J. at 513.

Inferring intent from the surrounding circumstances sufficient to satisfy a finding of operation "is completely consistent with our decisions holding that even before a vehicle is put in motion, a drunk driver offends the law when he evinces an intent to drive his car." Tischio, supra, 107 N.J. at 520. "The law was not intended to encourage a perilous race to reach one's destination, whether it be home or the next bar, before the blood alcohol concentration reaches the prohibited level." Id. at 519-20 (citation and internal quotation marks omitted).

The term "under the influence" is defined as "a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxication liquor, narcotic, hallucinogenic or habit producing drugs. State v. Bealor, 187 N.J. 574, 589 (2006) (citation and internal quotation marks omitted). Specific to the use of narcotics, a defendant is "under the influence" when "the drug produced a narcotic effect so altering his or her normal physical coordination and mental faculties as to render such person a danger to himself as well as to other persons on the highway." Id. at 589-90 (citation and internal quotation marks omitted).

Observational evidence may also be used to establish someone was "under the influence." See id. at 590; see also State v. Howard, 383 N.J. Super. 538, 548 (App. Div.), certif. denied, 187 N.J. 80 (2006). This includes proof of a defendant s physical condition, such as demeanor and appearance, as well as evidence as to the cause of intoxication, such as the smell of alcohol, a lay opinion of intoxication, or an admission to the consumption of alcohol. Bealor, supra, 187 N.J. at 588-89.

Here, defendant suggests the State failed to prove she intended to drive from the Wawa parking lot, citing State v. Daly, 64 N.J. 122 (1973). In Daly, the Court found the State failed to prove an intention to move the motor vehicle where the defendant was found sleeping in a legally parked car located in the lot of a tavern, with the motor running to keep him warm as he slept. Id. at 124-25. Defendant was discovered asleep in the slightly reclined driver's seat of his car at 3:20 a.m., over an hour and twenty minutes after the bar had closed. Ibid. Based on these facts, the Court held operation could not be inferred beyond a reasonable doubt as the defendant had not demonstrated an intent to drive. Id. at 125. Moreover, the car's presence in the tavern's lot strongly suggested the defendant had not moved his vehicle since he entered the tavern. Ibid. Therefore, a logical inference could be drawn demonstrating the defendant had not recently moved his vehicle. Ibid.

Not only is defendant's reliance on Daly misplaced, but she also mischaracterizes the State's evidence, which amply shows she drove to the Wawa while under the influence. Here, unlike Daly, the record supports the finding defendant recently operated her vehicle at a time when she was under the influence of intoxicating substances. The State's proofs consist of Officer Benecke's observations of defendant slumped over in her vehicle in the driver's seat, with the engine running, and parked in-between two handicapped parking spots. Defendant was difficult to awaken, did not know where she was, and seemed startled to be confronted by a police officer. Further, defendant admitted to driving to Wawa after taking prescription medication and consuming alcohol to "enhance" its effect. These facts support a reasonable inference defendant recently arrived at the Wawa after driving her vehicle in the intoxicated condition she exhibited when confronted by the police.

When added to police observations of her physical appearance while in the stationhouse, defendant's motor coordination difficulties, her additional admission to drinking various alcoholic beverages, and lab results confirming the presence of central nervous system depressants, these facts amply support the court's finding defendant was driving while under the influence, in violation of N.J.S.A. 39:4-50(a). Bealor, supra, 187 N.J. at 590.

Defendant's final claim argues her conviction should be reversed because trial counsel was ineffective. "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). "Generally, a claim of ineffective assistance of counsel cannot be raised on direct appeal. Rather, [the] defendant must develop a record at a hearing at which counsel can explain the reasons for his [or her] conduct and inaction and at which the trial judge can rule upon the claims[,] including the issue of prejudice." State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).

Here, defendant alleges, in light of the judge's inclination to grant an adjournment, counsel "should have known" she could not afford to pay her expert to attend the adjourned May 5, 2011 trial date. Because defendant's ineffective assistance claim relies upon allegations that lie outside the record, it is not suitable for review on direct appeal. Our declination to address its merits at this time, however, shall not be construed as a procedural bar in future collateral proceedings. See id. at 420 ("[W]hile we conclude . . . this record is inadequate to support defendant's claim [for ineffective assistance of counsel], our affirmance is without prejudice to defendant's petition for post[-]conviction relief on the subject.").

1 Officer Benecke administered two field sobriety tests, the walk-and-turn test and the raised leg test. Defendant failed by: (1) terminating the raised leg test after raising each leg for only a few seconds; and (2) using her arms for balance and not walking heel-to-toe. Defendant attributed her inabilities to the cold and injuries she had previously sustained to her hands and feet.