STATE OF NEW JERSEY v. CHRISTOPHER G. COSTA

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2257-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHRISTOPHER G. COSTA,

     Defendant-Appellant.
____________________________

                   Submitted November 19, 2019 – Decided December 2, 2019

                   Before Judges Fisher and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Municipal Appeal No. 16-
                   18.

                   Jacobs & Barbone, PA, attorneys for appellant (Louis
                   Michael Barbone, on the brief).

                   Damon G. Tyner, Atlantic County Prosecutor, attorney
                   for respondent (John Joseph Santoliquido, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a trial de novo in the Law Division, defendant Christopher

Costa appeals his conviction for driving while intoxicated (DWI), N.J.S.A.

39:4–50. We affirm.

      We derive the straightforward facts from the trial record. In the early

morning hours of February 14, 2017, a Northfield police officer was on patrol

when he noticed a white pickup truck parked "a few feet away from . . . the

curb[,]" in a spot of the otherwise empty lot of a restaurant that had closed at

least two hours earlier. Although the officer could not remember for certain

whether the truck's lights were illuminated, he recalled the motor was running,

and defendant was seated in the driver's seat.

      Upon approaching the truck, the officer noticed defendant "appeared to be

sleeping. His eyes were closed and his head was looking down." Defendant was

the sole occupant of the vehicle; an empty beer can was present in the center

console. The officer detected an odor of alcohol emanating from the vehicle and

defendant's breath. Defendant admitted he had consumed a "couple of beers" at

a casino in Atlantic City then dropped off a friend. The officer observed

defendant to have slurred speech, and after he failed the field sobriety tests, he

was transported to police headquarters.




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      At approximately 2:18 a.m., following defendant's consent to submit to a

breath sample, and waiting the requisite twenty-minute observational period, 1

the officer administered the Alcotest to defendant. The test revealed a .17%

blood alcohol content (BAC), well above the per se limit for intoxication

prescribed by  N.J.S.A. 39:4-50(a)(1)(ii).

      The municipal court conducted a one-day trial, at which the arresting

officer testified on behalf of the State. The officer had participated in hundreds

of DWI stops. Among other things, he was certified in field sobriety tests and

administration of the Alcotest. The State also introduced in evidence documents

and a video of the field sobriety tests. Defendant did not testify nor present the

testimony of any witnesses. At the conclusion of the trial, the judge requested

written summations and briefs from counsel, solely as to the issue of operation

– defense counsel having conceded the "[b]reathalyzer or results" thereof were

no longer at issue.    The municipal judge issued an oral decision finding

defendant guilty of DWI, and imposed the minimum fines and penalties for a

first offense.


1
  See State v. Chun,  194 N.J. 54, 79 (2008) (stating that an operator must wait
twenty minutes from the time of arrest to obtain a breath sample, and for those
minutes, the suspect must be observed to ensure that he did not, for example,
regurgitate and thus increase the level of mouth alcohol, which would taint the
reading).
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     Following a trial de novo in the Law Division, Judge Jeffrey J. Waldman

issued a thorough written decision, also finding defendant guilty o f DWI and

imposing the same sentence as the municipal court. This appeal followed.

     On appeal defendant presents the following points for our consideration:

           POINT I

           [OMITTED]

           POINT II

           THERE   WAS   INSUFFICIENT  CREDIBLE
           EVIDENCE IN THE RECORD TO FIND THE
           DEFENDANT GUILTY ON DE NOVO APPEAL;
           COMPARISON OF THE ACTUAL EVIDENCE TO
           THE   COURT'S  INDEPENDENT   FINDINGS
           ESTABLISH OBVIOUS AND EXCEPTIONAL
           ERROR.

           POINT III

           THE DE NOVO COURT'S FINDINGS OF LAW
           WERE ERRONEOUS AS THE STATE NEVER
           PROVED ANY CONTINUOUS OPERATION OF
           THE DEFENDANT'S MOTOR VEHICLE WHICH
           WOULD      SUPPORT   CIRCUMSTANTIAL
           EVIDENCE OF GUILT.

           POINT IV

           THE STATE NEVER ESTABLISHED BY ANY
           EVIDENCE THAT THE ALCOTEST WAS GIVEN
           WITHIN A "REASONABLE TIME" OF THE
           DEFENDANT'S MOTOR VEHICLE OPERATION.


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We reject these contentions and affirm substantially for the reasons set forth in

Judge Waldman's well-reasoned opinion. We add the following brief remarks.

      On appeal from a municipal court to the Law Division, the review is de

novo on the record. R. 3:23-8(a)(2). The Law Division judge must make

independent findings of fact and conclusions of law but defers to the municipal

court's credibility findings. State v. Robertson,  228 N.J. 138, 147 (2017).

      Unlike the Law Division, however, we do not independently assess the

evidence. State v. Locurto,  157 N.J. 463, 471-72 (1999). Our "standard of

review of a de novo verdict after a municipal court trial is to determine whether

the findings made could reasonably have been reached on sufficient credible

evidence present in the record, considering the proofs as a whole." State v.

Ebert,  377 N.J. Super. 1, 8 (App. Div. 2005) (internal quotation marks and

citation omitted).

      The rule of deference is more compelling where, as here, the municipal

and Law Division judges made concurrent findings. Locurto,  157 N.J. at 474.

"Under the two-court rule, appellate courts ordinarily 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." Ibid.

"Therefore, appellate review of the factual and credibility findings of the



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municipal court and the Law Division 'is exceedingly narrow.'" State v. Reece,

 222 N.J. 154, 167 (2015) (quoting Locurto,  157 N.J. at 470).

      Unless there is an obvious and exceptional showing of error, we will not

disturb the Law Division's findings when the municipal court and Law Division

"have entered concurrent judgments on purely factual issues."          Ibid. (citing

Locurto,  157 N.J. at 474). But, "[a] trial court's interpretation of the law and the

legal consequences that flow from established facts are not entitled to any

special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995).

      "[A] person who operates a motor vehicle while under the influence of

intoxicating liquor . . . or operates a motor vehicle with a blood alcohol

concentration of 0.08% or more by weight of alcohol in the defendant's blood"

is guilty of DWI.  N.J.S.A. 39:4-50(a). The term "operate" as used in  N.J.S.A.

39:4-50(a) has been broadly interpreted. State v. Tischio,  107 N.J. 504, 513

(1987); State v. Mulcahy,  107 N.J. 467, 478-79 (1987). There are three ways to

prove "operation":      (1) "actual observation of the defendant driving while

intoxicated," (2) "observation of the defendant in or out of the vehicle under

circumstances indicating that the defendant had been driving while intoxicated,"

or (3) admission by the defendant. Ebert,  377 N.J. Super. at 10-11. "Operation

may be proved by any direct or circumstantial evidence -- as long as it is
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competent and meets the requisite standards of proof." State v. George,  257 N.J.

Super. 493, 497 (App. Div. 1992).

      Based on those principles and our review of the record, we are satisfied

Judge Waldman's finding of guilt reasonably was reached on sufficient, credible

evidence present in the record. In the wee hours of the morning, the officer

observed defendant sleeping in the driver's seat of his vehicle, with the engine

running, "parked somewhat haphazardly in the parking lot" of a restaura nt that

long had been closed. Defendant emitted an odor of alcohol, an empty can of

beer was located in the center console of the truck, and he admitted drinking a

"couple of beers" in Atlantic City before he drove to Northfield. No other

occupants – who could have driven the truck to Northfield – were present.

Defendant's speech was slurred, he failed the field sobriety tests, and his BAC

was above the legal limit. The totality of those circumstances amply supports

Judge Waldman's determination that defendant's physical appearance "and

results of the field sobriety tests, provide[d] circumstantial evidence" beyond a

reasonable doubt "that defendant was already intoxicated when he drove to the

parking lot at [the restaurant]." See State v. Moore,  181 N.J. 40, 46 (2004).

      To the extent not addressed, defendant's remaining arguments lack

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

      Affirmed.
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