NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-2257-18T4
STATE OF NEW JERSEY,
CHRISTOPHER G. COSTA,
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-
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).
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.
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
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
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:
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
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.
THE STATE NEVER ESTABLISHED BY ANY
EVIDENCE THAT THE ALCOTEST WAS GIVEN
WITHIN A "REASONABLE TIME" OF THE
DEFENDANT'S MOTOR VEHICLE OPERATION.
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
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
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
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).