Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. AMY BLOODWORTH

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NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2570-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

AMY BLOODWORTH,

     Defendant-Appellant.
________________________________

              Argued October 4, 2017 – Decided November 3, 2017

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Municipal Appeal
              No. 6076.

              Nabil N. Kassem argued the cause for appellant
              (Kassem & Associates, PC, attorneys; Mr.
              Kassem and Dominique J. Carroll, on the
              brief).

              Marc A. Festa, Senior Assistant Prosecutor,
              argued the cause for respondent (Camelia M.
              Valdes, Passaic County Prosecutor, attorney;
              Mr. Festa, of counsel and on the brief).

PER CURIAM
     Defendant Amy Bloodworth appeals her conviction, following a

trial de novo, for driving while intoxicated (DWI), 
N.J.S.A. 39:4-

50, and for refusal to submit a breath test, 
N.J.S.A. 39:4-50.4a.

Having considered defendant's argument in light of the facts and

applicable law, we affirm.

     On February 2, 2015, Officer Glen Arthur and Officer Seabrooks

of the Clifton Police Department were dispatched on a report of a

vehicle stuck in a snowbank with the driver behind the steering

wheel, possibly incapacitated.     Prior to the arrival of police,

neighborhood residents reported hearing a loud crash.     From their

window, the residents witnessed a 2014 Jeep Grand Cherokee reverse

from one snowbank into another.       As the vehicle was lodged into

the snowbank, the driver continued to accelerate, causing the

tires to spin.    One resident stated the driver appeared to be

slumped over the steering wheel.      He, along with other residents,

proceeded outside to help the distressed driver, later identified

as defendant, and assisted her out of the vehicle.

     On arrival, Officer Arthur observed the Jeep lodged in a

snowbank.   Defendant was standing approximately four feet beside

the vehicle and was noticeably swaying.     Officer Arthur approached

defendant and questioned her about the accident.        As defendant

responded she "ha[d] no idea" what happened, a strong odor of

alcohol was detected on her breath.      Defendant was then asked if

                                  2                           A-2570-15T2
she had been drinking, to which she responded with slurred speech,

"[w]ay too much."       The officer reported that defendant was having

difficulty standing and observed a glassy look in her eyes and a

dazed appearance.        Moreover, he saw defendant's purse on the

sidewalk that visibly contained a half-empty bottle of alcohol and

medications, and also observed a visibly open container of alcohol

on the vehicle's passenger side floor.                  Due to the officer's

observations,    defendant    was       asked   to    perform   standard     field

sobriety tests.     Defendant responded that she was unwilling to

perform   the   tests    without    a    lawyer      present.    Subsequently,

defendant was arrested, advised of her Miranda rights, and placed

into the patrol car.

     While being transported to police headquarters, defendant was

falling asleep and periodically crying out for her parents.                  After

being escorted into headquarters with assistance, defendant was

asked to submit a breath sample.             She responded by saying "[n]o,"

and shaking her head indicating the same.                 Defendant was then

processed without further incident and charged with driving while

intoxicated, 
N.J.S.A. 39:4-50; refusal to submit a breath test,


N.J.S.A. 39:4-50.4a; possession of an open alcoholic beverage in

a motor vehicle, 
N.J.S.A. 39:4-51b; and failure to display motor

vehicle insurance and registration, 
N.J.S.A. 39:3-29.                  A Drunk

Driver Observation Report was prepared which indicated: defendant

                                         3                                 A-2570-15T2
had a strong odor of an alcoholic beverage; was pale and difficult

to awaken; had watery and bloodshot eyes; had difficulty walking;

and was falling and grasping for support.             Defendant pled not

guilty.    A municipal trial followed.

       At the conclusion of the municipal trial, the judge found

defendant guilty of DWI, refusal to submit to a breath test, and

possession of an open container.          The State moved for, and was

granted,     dismissal   of    the   remaining   charges.         This     being

defendant's third DWI offense, the judge sentenced her to: 180

days county jail, 90 days of which could be served in an inpatient

program; 10 year loss of driver's license; installation of ignition

interlock device for the loss of license time period with an

additional 3 years thereafter; completion of the required hours

at the Intoxicated Driver Resource Center (IDRC) in accordance

with defendant's individual treatment classification; and ordered

to pay appropriate fines and penalties. As per the refusal charge,

defendant was sentenced to a consecutive duplicate sentence as the

DWI.   A fine was imposed on the open container offense.

       Defendant filed an appeal to the Law Division.                    At the

conclusion    of   argument,   the   judge   held   there   was    sufficient

evidence in the record to support defendant's convictions due to

observational evidence.        Based upon the finding that the State's

witnesses were credible, the judge held the State had proven

                                      4                                  A-2570-15T2
operation and found defendant guilty of DWI and refusal to submit

to a breath test.   Defendant was found not guilty of possession

of an open alcoholic container.       A matching sentence to the

municipal court sentence was imposed, and defendant's request for

a stay pending appeal was denied.    This appeal followed.

     Defendant raises the following points on appeal.

                           POINT I

          [DEFENDANT] WAS DENIED HER RIGHTS UNDER
          THE FOURTEENTH AMENDMENT TO THE UNITED
          STATES CONSTITUTION AS THE LAW DIVISION
          LACKED SUFFICIENT CREDIBLE EVIDENCE IN
          THE RECORD TO SUPPORT ITS FINDINGS BEYOND
          A REASONABLE DOUBT THAT [DEFENDANT]
          OPERATED THE MOTOR VEHICLE IN QUESTION
          WHILE INTOXICATED.

                          POINT II

          THE LAW DIVISION LACKED SUFFICIENT
          CREDIBLE EVIDENCE IN THE RECORD TO
          SUPPORT ITS FINDINGS BEYOND A REASONABLE
          DOUBT THAT [DEFENDANT] REFUSED TO PROVIDE
          A BREATH SAMPLE. (RAISED BELOW)

                         POINT III

          [DEFENDANT] WAS DENIED THE EFFECTIVE
          ASSISTANCE OF COUNSEL IN VIOLATION OF HER
          SIXTH AND FOURTEENTH AMENDMENT RIGHTS AT
          TRIAL.

           A. [DEFENDANT] WAS DENIED HER FEDERAL
              AND STATE CONSTITUTIONAL RIGHTS TO
              THE EFFECTIVE ASSISTANCE OF COUNSEL
              DUE TO THE FAILURE OF HER TRIAL
              ATTORNEY   TO  INVESTIGATE   VIABLE
              DEFENSES WHICH COULD HAVE VALIDATED


                                5                            A-2570-15T2
                 [DEFENDANT'S] CLAIM SHE WAS NOT THE
                 DRIVER OF THE VEHICLE IN QUESTION.

              B. [DEFENDANT] WAS DENIED HER FEDERAL
                 AND STATE CONSTITUTIONAL RIGHTS TO
                 THE EFFECTIVE ASSISTANCE OF COUNSEL
                 DUE TO THE FAILURE OF HER TRIAL
                 ATTORNEY TO FILE A PRE-TRIAL MOTION
                 TO DISMISS THE CHARGES BASED UPON
                 THE STATE'S FAILURE TO PROVIDE THE
                 REQUIRED    DISCOVERY     REGARDING
                 OFFICER ARTHUR'S QUALIFICATIONS TO
                 OPERATE AN ALCOTEST.

                            POINT IV

            THE LAW DIVISION ERRONEOUSLY APPLIED THE
            LAW    WITH   RESPECT    TO    ANALYZING
            [DEFENDANT'S]   CLAIM   OF   INEFFECTIVE
            ASSISTANCE OF COUNSEL, SPECIFICALLY BY
            MISAPPLYING THE TEST SET FORTH IN STATE
            V. ALLAH.1

                            POINT V

            THE LAW DIVISION ERRONEOUSLY APPLIED THE
            LAW    WITH    RESPECT   TO    ANALYZING
            [DEFENDANT'S] MOTION FOR A DIRECTED
            VERDICT, SPECIFICALLY BY MISAPPLYING THE
            TEST SET FORTH IN STATE V. REYES2 AS THE
            STATE'S EVIDENCE FELL SHORT OF WHAT WAS
            NECESSARY   TO   SUSTAIN   [DEFENDANT'S]
            CONVICTION.

                            POINT VI

            THE LAW DIVISION ERRONEOUSLY DETERMINED
            THAT OFFICER ARTHUR WAS CREDIBLE DESPITE
            NUMEROUS      INCONSISTENCIES      FOUND
            THROUGHOUT HIS TESTIMONY AND POLICE
            REPORT.

1
    
170 N.J. 269 (2002).
2
    
50 N.J. 454 (1967).

                                  6                    A-2570-15T2
                             POINT VII

            [DEFENDANT'S] CONVICTION SHOULD BE REVERSED ON
            THE BASIS OF CUMULATIVE ERROR.

       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) (citation omitted).      Therefore, when a defendant appeals a

conviction of violating a motor vehicle law, the scope of review

is both narrow and deferential.          State v. Stas, 
212 N.J. 37, 48-

49 (2012).     The function of the reviewing court is to determine

whether the findings of the Law Division "could reasonably have

been   reached   on   sufficient   credible    evidence   present    in   the

record."     State v. Johnson, 
42 N.J. 146, 162 (1964).             When the

findings and conclusions of the Law Division are held to meet that

criterion, our "task is complete," and we "should not disturb the

result" even if we "might have reached a different conclusion" or

if the result was a close one.       Ibid.

       We "defer to 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."        State v. Locurto, 
157 N.J. 463, 474

(1999).    As such, a Law Division judge in a trial de novo must

make findings of fact based upon the record made in the municipal

                                     7                               A-2570-15T2
court where the case was tried.             State v. Ross, 
189 N.J. Super.
 67, 75 (App. Div.), certif. denied, 
95 N.J. 197 (1983).                        The

judge's function "is not the appellate function governed by the

substantial evidence rule but rather an independent fact-finding

function . . . ."     Ibid. (citations omitted).

     Defendant asserts her convictions must be vacated as they are

against the weight of the evidence.              Defendant argues there was

not proof beyond a reasonable doubt of operation or intent to

operate the vehicle and refusal to submit a breath test.               Further,

defendant raises several ineffective assistance of counsel claims.

     To sustain a conviction for DWI, the State must prove beyond

a reasonable doubt that defendant operated an automobile while

under the influence of intoxicating liquor.             State v. Ebert, 
377 N.J. Super. 1, 10 (App. Div. 2005); State v. Grant, 
196 N.J. Super.
 470, 477 (App. Div. 1984).          "Independent of breathalyzer results,

an   alternative     finding    of    intoxication     may     be   based     upon

observational   evidence       to    find   a   defendant     guilty   beyond    a

reasonable   doubt    of   DWI."        State     v.   Liberatore,     
293 N.J.

Super. 580, 589 (Super. Ct. 1995) (citing State v. Slinger, 
281 N.J. Super. 538, 543 (App. Div. 1995)).

     The term "operates" as used in 
N.J.S.A. 39:4-50(a) has been

broadly   interpreted.     State       v.   Tischio,    
107 N.J.    504,    513

(1987), appeal dismissed, 
484 U.S. 1038, 
108 S. Ct. 768, 98 L. Ed.

                                        8                                A-2570-15T2
2d    855       (1988); State         v.        Mulcahy,        
107 N.J.      467,    478

(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) (citations omitted).                      Courts have consistently

adopted     a    practical      and    broad        interpretation          of    the    term

"operation"       in    order    to    express          fully    the    meaning     of    the

statute.        Tischio, supra, 
107 N.J. at 513; State v. Morris, 
262 N.J. Super. 413, 417 (App. Div. 1993).

      The Court first discussed the scope of "operation" in State

v.   Sweeney,      
40 N.J.    359,       360-61    (1963).           In   affirming    the

defendant's conviction, the Court held:

            [A] person "operates" — or for that matter,
            "drives" — a motor vehicle under the influence
            of    intoxicating    liquor,    within    the
            meaning of 
N.J.S.A. 39:4-50 . . . when, in
            that condition, he enters a stationary
            vehicle, on a public highway or in a place
            devoted to public use, turns on the ignition,
            starts and maintains the motor in operation
            and remains in the driver's seat behind the
            steering wheel, with the intent to move the
            vehicle[.]

            [Ibid.]

Evidence of "intent to move the vehicle" satisfies the statutory

requirement       of    operation          so    that     actual       movement    is    not

required.       Id. at 361.



                                                9                                   A-2570-15T2
     Here,     we   find   no   basis    for   error    in   the   Law    Division

convictions.     First, the judge found there was sufficient credible

evidence which supported the finding that defendant operated the

vehicle.      We agree.    When approached by the officer outside of the

vehicle, defendant smelled of alcohol, had bloodshot eyes, and

seemed dazed.          In addition, two residents testified that they

witnessed defendant slumped over the steering wheel in the driver's

seat with the engine running.           One of the residents also testified

to assisting defendant out of the driver's side of the vehicle.

There   was    ample    credible    evidence   to     support   that     defendant

operated the vehicle beyond a reasonable doubt.

     The      record    similarly   supports    the    judge's     finding     that

defendant refused to submit a breath test.                   The four elements

necessary to sustain a conviction for refusal to submit a breath

test are:

              (1) the arresting officer had probable cause
              to believe that defendant had been driving or
              was in actual physical control of a motor
              vehicle while under the influence of alcohol
              or drugs; (2) defendant was arrested for
              driving while intoxicated; (3) the officer
              requested defendant to submit to a chemical
              breath test and informed defendant of the
              consequence of not doing so; and (4) defendant
              thereafter refused to submit to the test.

              [State v. Marquez, 
202 N.J. 485, 503 (2010);
              N.J.S.A. 39:4-50.4a].



                                        10                                 A-2570-15T2
     When a defendant is informed of their right regarding breath

test for blood-alcohol content, "anything substantially short of

unauthorized, unequivocal assent to the officer's request that the

arrested motorist take the test constitutes a refusal to do so."

Liberatore, supra, 
293 N.J. Super. at 588-89.                 An officer must

only read the second statement of the consequences of refusal if

the suspected motorist gives an ambiguous or conditional answer

short of an unequivocal "yes."           See 
N.J.S.A. 39:4-50.2(e).

     The record reflects that the officer read defendant the first

nine paragraphs of the Attorney General Standard Statement for

Operating Vehicles, which advised her of the statutory requirement

to submit to a breath test.          In response, defendant responded "no"

and shook her head as indicative of her response.             The judge found

the officer's testimony to be credible and was corroborated by the

police report in evidence.         Given our review of the record and our

standard of review, we find no reason to disturb the judge's

determinations.

     We     briefly   respond   to    defendant's    arguments      relating   to

ineffective     assistance    of   counsel.     To   establish      ineffective

assistance of counsel, a defendant bears the heavy burden of

proving two essential elements: (1) that trial counsel "performed

below   a    level    of   reasonable    competence";   (2)    "a    reasonable

probability that, but for counsel's unprofessional errors, the

                                        11                              A-2570-15T2
result of the proceeding would have been different."                   State v.

Fritz, 
105 N.J. 42, 60-61 (1987) (quoting Strickland v. Washington,


466 U.S. 668, 694, 
104 S. Ct. 2052, 2068, 
80 L. Ed. 2d 674, 698

(1984)).        Our   Supreme   Court    has    expressed    a   preference    for

resolving ineffective assistance of counsel claims on collateral

review.    State v. Preciose, 
129 N.J. 451, 459-60 (1992).              However,

where the allegedly deficient conduct is a matter wholly within

the trial record, an appellate court may review the claim on direct

appeal. State v. Castagna, 
187 N.J. 293, 313 (2006) (citing Allah,

supra,    
170 N.J.   at   285).       Here,   since    defendant's   claim    of

ineffective assistance of counsel rests upon evidence, such as

failure to investigate, lies outside the record, it is not ripe

for direct review.

     Instead, "[i]ssues of ineffective assistance that require the

presentation of evidence lying outside the trial record are best

preserved for the [post-conviction relief] stage."                     Preciose,

supra, 
129 N.J. at 460; State v. Hess, 
207 N.J. 123, 145 (2011);

State v. Dixon, 
125 N.J. 223, 262 (1991).               Typically, a "defendant

must develop a record at a hearing at which counsel can explain

the reasons for his 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 (1991). Thus, "a [post-

conviction relief] proceeding would be the appropriate forum to

                                        12                               A-2570-15T2
evaluate the strategy of defendant's trial counsel . . . and other

issues requiring information that is not in the record before the

[c]ourt."   State v. McDonald, 
211 N.J. 4, 30 (2012).   For these

reasons, we decline to address defendant's ineffective assistance

of counsel claims and preserve them for post-conviction relief.

     Defendant's remaining arguments lack sufficient merit to

warrant discussion in a written opinion.   R. 2:11-3(e)(2).

     Affirmed.




                               13                             A-2570-15T2