STATE OF NEW JERSEY v. MICHALE FAGG

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NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0110-19T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHALE FAGG,

     Defendant-Appellant.
__________________________

                    Submitted December 7, 2020 – Decided January 8, 2021

                    Before Judges Messano and Hoffman.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Somerset County, Municipal Appeal No. 19-27.

                    Albert P. Mollo, attorney for appellant.

                    Michael H. Robertson, Somerset County Prosecutor,
                    attorney for respondent (Lauren R. Casale, Assistant
                    Prosecutor, of counsel and on the brief).

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

appeals his conviction for driving while intoxicated (DWI),  N.J.S.A. 39:4-50.

We affirm.

                                          I

      We derive the following facts from the trial record. On November 4,

2018, at approximately 1:30 a.m., Hillsborough Township Police Officer

Andrew Chudy responded to a 9-1-1 call from Jill Muriithi, a resident of an

apartment complex on Deanna Drive. Ms. Muriithi reported observing a vehicle

blocking the entrance to the parking lot for the complex; at trial, she recounted

the vehicle "was just sitting there with the lights on." Ms. Muriithi pulled around

the vehicle, "up over the curb," in order to enter the lot, passing the driver's side

on her left. As she passed the stopped vehicle, Ms. Muriithi looked into the

driver's side window, and saw a man asleep at the wheel. Ms. Muriithi then

went into her apartment. About fifteen to twenty minutes later, she looked out

"her kitchen window and the car was still there"; at that point, she called the

police. While on the phone with dispatch, Ms. Muriithi observed the vehicle's

driver stumble around outside of his vehicle, and then urinate on some bushes.

      After listening to the recording of her 9-1-1 call, Ms. Muriithi testified she

recognized her own voice telling the dispatcher that "it looks like the car was


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moved." While she did not see anyone move the vehicle, she noted "the car was

not in the same position."

      When Officer Chudy arrived, he observed the vehicle "not even in a

parking space. It was in the entrance to the complex[,] blocking the flow of

traffic in and out. . . . the vehicle was running. The headlights were on." He

recounted observing "numerous" open parking spaces in the lot.

      As Officer Chudy approached the vehicle, he found defendant "sitting

behind the wheel . . . kind of slumped over," doing something in his lap.

Defendant told the officer he was in the area for a coworker's party and was only

in his vehicle "to warm up" and "charge his phone . . . he wasn't going to drive."

Officer Chudy noted defendant's speech was rambled and repetitive.

      After directing defendant to exit his vehicle, Officer Chudy administered

three separate field sobriety tests. Defendant failed the first two tests . He did

not complete the third test – after defendant "fell into his vehicle," Officer

Chudy "was worried that if [defendant] were allowed to continue the test he may

fall and strike his head on the ground."

      At that point, Officer Chudy arrested defendant, charged him with DWI,

 N.J.S.A. 39:4-50, and a parking offense,  N.J.S.A. 39:4-138(d), and transported




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him to Hillsborough Police Headquarters. There, defendant acknowledged he

drank alcohol at the party.

      On April 8, 2019, defendant appeared for trial in Hillsborough Municipal

Court. At trial, the State presented the testimony of Ms. Muriithi and Officer

Chudy.    The judge described the testimony of both witnesses as "highly

credible." Without objection, defendant introduced written statements from

Theodore Matthews and Tamika Otto, who were present with defendant at

Matthews' apartment. They corroborated that defendant went to his vehicle to

charge his cell phone.

      Defendant then moved to dismiss the matter, asserting the State failed to

prove the necessary element of operation beyond a reasonable doubt. The judge

denied the motion and found "it is obvious that where the car was parked

indicates it was in operation."

      After the judge denied the motion, defendant entered a conditional guilty

plea to DWI and public urination, and the State agreed to the dismissal of the

illegal parking charge. The judge imposed $789 in fines, twelve hours in the

Intoxicated Driver’s Resource Center, and a three-month driver's license

suspension. The judge granted a stay of defendant's license suspension pending

appeal.


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      Defendant appealed his conviction and a de novo trial occurred in the Law

Division on June 30, 2019. During that hearing, defendant again asserted the

State failed to prove beyond a reasonable doubt that he operated or intended to

operate a motor vehicle while intoxicated.      On August 20, 2019, the Law

Division judge issued a written opinion, rejecting defendant's operation defense,

and finding him guilty of DWI.        The judge found that defendant, while

intoxicated, sat behind the wheel of his vehicle with the engine and headlights

on, and "intended to operate his motor vehicle." He therefore concluded the

State proved beyond a reasonable doubt that [defendant] was driving while

intoxicated. The judge did not impose a different sentence but did grant a

continued stay of defendant's license revocation pending appeal to this court.

      This appeal followed, with defendant arguing:

            THE TRIAL COURT ERRED IN CONVICTING
            APPELLANT BECAUSE THE STATE HAS NOT
            PROVEN OPERATION BEYOND A REASONABLE
            DOUBT
                              II

      On appeal from a municipal court, the Law Division's review is de novo.

R. 3:23-8(a)(2). The Law Division makes 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).


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      On subsequent appeal from the Law Division, our review of the Law

Division's factual findings is limited to whether the conclusions "could

reasonably have been reached on sufficient credible evidence present in the

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

we do not independently assess the evidence. State v. Locurto,  157 N.J. 463,

471 (1999).

      The rule of deference is more compelling where the municipal court and

Law Division made concurrent findings. Id. 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. (citing Midler v. Heinowitz,

 10 N.J. 123, 128-29 (1952)). "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). However, the Law Division'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).




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      This appeal turns on whether the record supported the Law Division's

determination that defendant operated a vehicle within the meaning of  N.J.S.A.

39:4-50(a). "[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). We broadly interpret "operates" to

include more than driving. See State v. Tischio,  107 N.J. 504, 513 (1987); State

v. Mulcahy,  107 N.J. 467, 478-79 (1987). Operation may be established by a

variety of circumstances, including "actual observation of defendant driving

while intoxication," "observation of the defendant in or out of the vehicle under

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

or defendant's admission. State v. Ebert,  377 N.J. Super. 1, 10-11 (App. Div.

2005). Furthermore, "[o]peration 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).

      We recently sustained a DWI conviction against an intoxicated defendant

sleeping in his vehicle with the engine running while parked in a 7-Eleven

parking lot. State v. Thompson,  462 N.J. Super. 370, 373-75 (App. Div. 2020).

We concluded, "There is no doubt that an intoxicated . . . defendant behind the


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wheel of a motor vehicle with the engine running is operating the vehicle within

the meaning of  N.J.S.A. 39:4-50(a), even if the vehicle was not observed in

motion; it is 'the possibility of motion' that is relevant." Id. at 375 (quoting State

v. Stiene,  203 N.J. Super. 275, 279 (App. Div. 1985)).

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

the Law Division reasonably found defendant guilty on sufficient, credible

evidence in the record. Late at night, Ms. Muriithi and Officer Chudy observed

defendant sitting in the driver's seat of his vehicle with the engine running and

the headlights on. Despite numerous open parking spaces, defendant parked in

the entrance to a parking lot. He had difficulty communicating and maintaining

his balance, failed two sobriety tests, and admitted to drinking alcohol before

starting his vehicle. Moreover, though no one observed defendant drive, Ms.

Muriithi testified that defendant's vehicle moved from where she first saw it.

The observations of Ms. Muriithi and Officer Chudy coupled with the

surrounding circumstances provide ample evidence of defendant's guilt. We

discern no basis to disturb the Law Division judge's determination that defendant

was guilty of DWI beyond a reasonable doubt.




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      The stay of sentence entered by the Law Division is vacated. Defendant

shall turn in his driver's license to the Hillsborough Municipal Court within five

days of the date of this opinion.

      Affirmed.




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