NOT FOR PUBLICATION WITHOUT THE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-0110-19T2
STATE OF NEW JERSEY,
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).
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 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
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
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
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
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).
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,
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).
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
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.
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.