STATE OF NEW JERSEY v. JAMIE APPLEBY

NOT FOR PUBLICATION WITHOUT THE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-2624-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMIE APPLEBY,

     Defendant-Appellant.
___________________________

                    Submitted January 14, 2019 – Decided January 31, 2019

                    Before Judges Sabatino and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Municipal Appeal No. 0017-
                    10.

                    Elaine M. Diamantides, attorney for appellant.

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Deputy
                    Executive Assistant Prosecutor, of counsel; Cheryl L.
                    Hammel, Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Jamie Appleby appeals the Law Division's January 26, 2018

order upholding the Lacey Township's Municipal Court's May 16, 2017

conviction of her for driving while intoxicated ("DWI"),  N.J.S.A. 39:4-50. We

affirm.

      On August 22, 2016 defendant was issued three complaint summonses for

DWI, reckless driving,  N.J.S.A. 39:4-96, and failure to exhibit documents,

 N.J.S.A. 39:3-29.    Defendant also received a complaint charging her with

driving while intoxicated with a minor in the vehicle,  N.J.S.A. 39:4-50.15(b).

On May 16, 2017, the Lacey Township Municipal Court conducted a trial. At

trial, the parties stipulated that defendant had registered a blood alcohol content

of .21, in excess of the legal limit. The sole issue at trial was whether defendant

operated a vehicle within the meaning of  N.J.S.A. 39:4-50(a).

      Lacey Township Police Officer Jason Lee, the responding officer, testified

for the State. Tara Britton and Ted Mosulak, friends of defendant, testified for

defendant. Defendant also testified on her own behalf. We briefly recite the

relevant facts from the witnesses' testimony.

      On the evening of August 22, 2016, Officer Lee responded to a 911 call

about a disabled vehicle in the intersection of Route 9 and Nautilus Boulevard.

Upon arrival, Officer Lee observed defendant in the driver’s seat and Britton


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pushing the car.       After speaking with the women, Officer Lee issued the

complaint summonses and complaint to defendant. Once a tow truck driver

arrived, Officer Lee entered defendant's car. He pressed the brakes, put the car

in park, and successfully started the car by pressing the button on the keyless

ignition.

      Defendant went to Britton's home around noon that day and had been

drinking with Britton. That evening, defendant called Mosulak and asked him

to come over to Britton's house. At approximately 9:40 p.m., at defendant's

request, Mosulak drove with defendant in defendant's car away from Britton's

house. After traveling a few blocks from the house, Mosulak and defendant got

into an argument. Mosulak pulled the car over to the curb, shut off the car by

pressing the button on the keyless ignition, and walked back to Britton's house

to retrieve his car.

      Defendant then called Britton and asked her to come assist her. Britton

drove to the scene. Defendant and Britton then attempted to move the vehicle

off the road and into a parking lot. The car was in neutral and the steering wheel

was locked, but they were able to push the car approximately four feet. Britton

could not recall where she and defendant were located when Officer Lee arrived

on scene. Defendant testified that she never got behind the wheel of the vehicle.


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      At the close of trial, the municipal court judge rendered an oral decision

and found defendant guilty of DWI, but dismissed the remaining charges. The

judge determined that Mosulak testified credibly that he left defendant's vehicle

along the curb and that he had no problem operating the vehicle. The judge also

determined that Officer Lee testified credibly that defendant was in the driver's

seat when he arrived on scene and that he was able to start the vehicle without

issue once the tow truck arrived. Thus, the judge concluded that defendant's

vehicle was operable because Mosulak and Officer Lee were able to operate the

vehicle without issue. The judge found that defendant could not get the vehicle

to start because it "was in neutral and [defendant] couldn't get it going or didn't

step on the brake as you have to do with a push-button vehicle and in her

intoxicated state, she apparently couldn't figure that out."

      The municipal court judge also found that the State had proven beyond a

reasonable doubt that defendant had operated the vehicle within the meaning of

the DWI statute. The municipal court judge noted, "[a]s far as operation, all the

State has to show for purposes of operation is that the person was in the driver's

seat, that the person is in control of the car, . . . and had the intention to drive. "

In this regard, the judge found that the vehicle was in the roadway with

defendant behind the wheel when Officer Lee arrived, but that Mosulak had left


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the vehicle along the curb. The judge also noted that defendant testified that it

was her intention to move her car into a nearby parking lot, and that Britton

testified that they had moved the car about four feet. Furthermore, the judge

reasoned that the only way defendant would have known that the vehicle would

not start is if she had gotten behind the wheel and attempted to start the car.

      The municipal court judge imposed a nine-month driver's license

suspension, a nine-month use of an ignition interlock, twelve hours of classes

from the Intoxicated Driver Resource Center, and applicable fines. The judge

stayed the imposition of the sentence pending appeal to the Law Division.

      On January 26, 2018, Judge Michael T. Collins conducted a trial de novo

on the record. Judge Collins also found defendant guilty of DWI and imposed

the same sentence rendered by the municipal court. Judge Collins found that

the municipal courts judge's reasoning was sound and that the judge's

conclusions were based upon the testimony and the facts. Judge Collins stayed

the imposition of the sentence pending appeal to this court.

      On appeal, defendant argues that the evidence presented at trial was

insufficient to prove that defendant operated a vehicle, within the meaning of

 N.J.S.A. 39:4-50(a), beyond a reasonable doubt.          Specifically, defendant

contends that the record lacks sufficient credible evidence to support that (1)


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defendant was in control of her vehicle, (2) defendant intended to cause her

vehicle to move, and (3) defendant's vehicle was operable.

      Our standard of review is well-settled. When a defendant appeals a

conviction of a motor vehicle violation following a trial de novo in the Law

Division, the scope of appellate review is both narrow and deferential. State v.

Stas,  212 N.J. 37, 48-49 (2012). The trial judge's factual findings will not be

disturbed where they are supported by sufficient credible evidence in the record.

State v. Locurto,  157 N.J. 463, 471 (1999).

      Law Division judges in a trial de novo must make their own independent

findings of fact since they undertake "an independent fact-finding function in

respect of defendant's guilt or innocence." State v. Cerefice,  335 N.J. Super.
 374, 383 (App. Div. 2000) (citing State v. Avena,  281 N.J. Super. 327, 333 (App.

Div. 1995)). "Nevertheless, even on de novo review, the Law Division judge

must give due, although not necessarily controlling, regard to the opportunity of

the trial judge to judge the credibility of the witnesses." Ibid.

      Furthermore, when the Law Division agrees with the municipal court, the

two-court rule must be considered. "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


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exceptional showing of error." Locurto,  157 N.J. at 474. "However, no such

deference is owed to the Law Division or the municipal court with respect to

legal determinations or conclusions reached on the basis of the facts." Stas,  212 N.J. at 49.

      With this standard of review in mind, we address defendant's contention

that the State failed prove that she operated her vehicle. In interpreting the

meaning of "operates" in  N.J.S.A. 39:4-50(a), we have set forth the following

test for operation: "[W]hen one in an intoxicated state places himself behind the

wheel of a motor vehicle and not only intends to operate it in a public place, but

actually attempts to do so (even though the attempt is unsuccessful) and there is

the possibility of motion, he violates the statute." State v. Stiene,  203 N.J.

Super. 275, 279 (App. Div. 1985); see also State v. Mulcahy,  107 N.J. 467, 478

(1987) ("This analysis [in Stiene] is consistent with precedent elsewhere. It is

clearly established that the term 'operating,' as used in statutes prohibiting the

operation of a motor vehicle while intoxicated generally has been construed as

broader than the term 'driving.'"). We have not required that the engine be

engaged or that there be any movement of the vehicle to establish operation;

instead, we focus on the defendant's intent. See State v. Morris,  262 N.J. Super.
 413, 418-19 (App. Div. 1993) (holding that defendant operated vehicle when he


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placed the key in the ignition and attempted to turn key, but a law enforcement

officer grabbed the key before the engine started); Stiene,  203 N.J. Super. at 279

(finding operation where defendant was behind the wheel with the engine off,

as the car had run out of gas, with his mother attempting to use another vehicle

to push defendant's car).

      In assessing whether defendant operated her vehicle, we afford deference

to the municipal court judge's findings, adopted by the Law Division, that (1)

defendant was behind the wheel of the car, (2) defendant intended to move her

car into the parking lot, and (3) defendant and Britton moved the vehicle

approximately four feet. These facts are established by sufficient, credible

evidence in record. Accordingly, defendant placed herself behind the wheel of

the car with the intent to move the vehicle and attempted to do so. See Stiene,

 203 N.J. Super. at 279. Although defendant responsibly allowed Mosulak to

drive her car initially and attempted to call Britton for help before driving on

her own, the facts found by the municipal court judge and Law Division are

sufficient to establish beyond a reasonable doubt that defendant operated her

vehicle as defined by our precedents.

      For these reasons, we reject defendant's challenges to her conviction. To

the extent we have not specifically addressed any remaining arguments raised


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by defendant, we find they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      We affirm defendant's conviction, and the stay of the sentence is vacated

effective twenty days from the date of this opinion. Defendant shall appear

before the municipal court within twenty days to surrender her license and to

remit any outstanding fines and costs.

      Affirmed.




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