Opinion
DOCKET NO. A-5687-14T3
11-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRUCE GOODHEART, Defendant-Appellant.
Michael J. Beatrice, attorney for appellant. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Accurso and Manahan. On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 14-054. Michael J. Beatrice, attorney for appellant. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Bruce M. Goodheart appeals from a conviction after a trial de novo in the Law Division for driving while intoxicated, N.J.S.A. 39:4-50. We affirm.
On May 10, 2014, defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50; driving while intoxicated in a school zone, N.J.S.A. 39:4-50(g); reckless driving, N.J.S.A. 39:4-96; and failure to maintain a lane, N.J.S.A. 39:4-88(b).
Defendant pled not guilty and filed a motion to suppress challenging his operation of the motor vehicle. A hearing was held on October 22, 2014, in the Butler Borough Municipal Court. After testimony and argument by counsel, the judge found that the State had proven operation and denied defendant's motion. A trial commenced later that day.
On appeal, defendant has not raised the denial of the motion to suppress as error.
The judge rendered his decision on November 12, 2014. In an oral opinion, the judge found defendant guilty of driving while intoxicated. Defendant was found not guilty of reckless driving and failure to maintain a lane. The State moved to dismiss the charge of driving while intoxicated in a school zone which was granted.
Defendant was sentenced as a "first offender" to a ninety-day loss of driver's license, twelve-hours participation in the Intoxicated Driver Resource Center (IDRC), and ordered to pay applicable fines and costs. All penalties were stayed pending appeal.
After defendant filed an appeal, a trial de novo was heard before a Law Division judge on June 25 and July 7, 2015. The judge found the State had proven operation and rendered an oral opinion on July 7, finding defendant guilty of driving while intoxicated. Defendant was sentenced to a ninety-day loss of driving privileges, twelve-hours participation at IDRC, and ordered to pay applicable fines and costs. No interlock device was ordered. The judge denied defendant's oral request for a stay pending appeal. That same day, an order was filed encompassing a written statement of reasons. A notice of appeal was filed on August 21, 2015.
We discern the following undisputed facts from the trial record.
On May 10, 2014, at approximately 3:30 a.m., Officer Jorge Reyes of the Butler Borough Police Department was patrolling a residential neighborhood when he observed a silver Ford pickup truck parked on the side of the road, facing oncoming traffic with its headlights off. Reyes notified Sergeant Robert Findura, then parked his vehicle behind the truck and activated his overhead lights. As Reyes approached the truck he observed a male, later identified as defendant, slumped over in the driver's seat. Initially believing defendant to be dead, Reyes called for an ambulance. Upon opening the truck door, Reyes observed defendant sleeping and detected the odor of alcohol emanating from the truck. Reyes further observed the engine was running and the keys were in the ignition. No other occupants were inside the truck.
Upon Sergeant Findura's arrival, he observed Reyes "banging on the driver's side window . . . in an attempt to alert or get" defendant's attention. When defendant finally awoke, he was asked if he had anything to drink to which he responded "a lot." Defendant did not recall how much time had elapsed between when he consumed his first drink and his last. Reyes then asked defendant to exit the truck in order to administer field sobriety tests. As defendant exited his truck, both Reyes and Findura observed defendant's movements were slow, he was unsteady on his feet, and was slurring his speech. Dry vomit was also noted on defendant's chest.
Reyes administered the horizontal gaze nystagmus (HGN) test. Although defendant was reminded numerous times to keep his head still, he was unable to submit. Defendant had difficulty tracking the officer's pen with his eyes, could not stand straight, and was swaying from side to side. Based upon his training, Reyes concluded it was unsafe to administer any further field sobriety tests for risk of injury to defendant as defendant's gait was "too unsteady" and Reyes believed defendant "would have fallen." Defendant was then placed under arrest, advised of his Miranda rights, and transported to the Butler Borough Police Department. Defendant stipulated through counsel that he was intoxicated when police arrived at the scene.
HGN tests are not admissible at trial. State v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000). However, police can use them to ascertain probable cause. Id. at 546.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The essential matter in dispute was whether defendant operated the truck or intended to operate the truck. In this regard, during municipal court proceedings, defendant stipulated that although he was under the influence of alcohol while in the truck, he did not operate it. During the trial in municipal court defendant provided a witness.
The witness testified she met defendant in March 2014, that they were in a relationship, but it was not serious. On May 10, the witness and her friend met defendant at the Trackside Bar in Butler around 10:30 p.m. At approximately 2:30 a.m., the witness, her friend, and defendant left the bar. The witness testified that although she did not consume alcohol that evening since she does not drink, she observed defendant was highly intoxicated, belligerent, unresponsive, and would be unable to drive. The witness did not know where defendant lived but, nonetheless, decided to drive defendant home in his truck. The witness testified she became frustrated when defendant was unable to provide her with his address after driving around Butler in circles for twenty-five minutes "trying to get his address out of him."
The witness further testified defendant vomited on himself while en route. She pulled the truck over to the wrong side of the road in order for defendant to vomit in the bushes. As defendant exited the truck, the witness stated she "jumped out of the truck," turned off the lights, left the engine running, and proceeded to her friend's vehicle which had been following and now was stopped behind the truck. Without considering defendant's well-being or where the truck was located, the witness made the decision to abandon him and return home. She stated when she left the scene defendant was still outside of the running truck with the headlights off.
The municipal court judge found the testimony of Reyes and Findura to be consistent and clear, and that both officers credibly testified to the events that occurred on May 10, 2014. Conversely, the judge found the testimony of the witness to be "totally unbelievable, incredible, [and] lacks no credibility whatsoever." The judge further stated that the testimony of the witness is "incredible, not consistent, [and] this [c]ourt does not accept her testimony at all."
In contrast, the Law Division judge subscribed some credibility to the testimony of the witness in finding, "there exists a fair debate and a serious question as to who actually drove the truck to the scene where it was parked when the police arrived." Nonetheless, the judge held that even if the court were to accept her testimony that she, rather than defendant, had driven the truck to the scene, the question of his intent to operate still existed. The judge noted that when the police arrived, defendant was the only person inside the truck, he was seated in the driver's seat with the keys in the ignition and with the engine running. The judge held that from these facts, it could be deduced that defendant re-entered the truck after the witness left and seated himself in the driver's seat of the truck, while intoxicated, on a public road with the engine running. The judge held that this constituted sufficient evidence of intent to operate by defendant to establish beyond a reasonable doubt that he operated the truck while intoxicated.
Defendant raises the following points on appeal:
POINT I
DEFENDANT MUST BE ACQUITTED OF DRIVING UNDER THE INFLUENCE OF ALCOHOL AS THE COURT BELOW MISAPPLIED THE LAW REGARDING OPERATION.
A. THE STATE FAILED TO PROVE OPERATION BEYOND A REASONABLE DOUBT.
(1) OPERATION PROVEN BY ACTUAL OBSERVATION OF DEFENDANT HAVING DRIVEN WHILE UNDER THE INFLUENCE.
(2) OPERATION PROVEN BY ADMISSION OF THE DEFENDANT TO HAVING DRIVEN WHILE UNDER THE INFLUENCE.
(3) OPERATION PROVEN BY CIRCUMSTANTIAL EVIDENCE OF THE DEFENDANT TO HAVING DRIVEN WHILE UNDER THE INFLUENCE.
(4) OPERATION PROVEN BY EVIDENCE SHOWING A PRESENT INTENT TO OPERATE A VEHICLE BY THE DEFENDANT WHILE UNDER THE INFLUENCE.
In an appeal from a de novo hearing on the record, we consider only the action of the Law Division and not that of the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). Our standard of review of a Law Division judge's decision is limited to determining only whether the findings made by the judge could reasonably have been reached by the sufficient credible evidence present in the record. State v. Locurto, 157 N.J. 463, 472 (1999) (citing State v. Barone, 147 N.J. 599, 615 (1998)); State v. Johnson, 42 N.J. 146, 162 (1964).
"That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Johnson, supra, 42 N.J. at 162. We will reverse only after being "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . ." Ibid.
A Law Division judge in a trial de novo must "make his own findings of fact" based upon the record made in the municipal court. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). "His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function . . . ." Ibid. (citations omitted).
At the hearing, the Law Division judge made independent findings reflected in his oral opinion. We defer to those findings. However, our review of legal determinations is plenary. See State v. Handy, 206 N.J. 39, 45 (2011).
Defendant asserts his conviction must be vacated as it is against the weight of the evidence. Defendant argues there was no proof of operation or intent to operate the vehicle. We are not persuaded.
To sustain the conviction, the State must prove beyond a reasonable doubt that defendant operated his automobile while under the influence of intoxicating liquor. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005); State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984). Determining what constitutes operation has been the subject of many judicial decisions, which guide our review and lead to the conclusion legal operation was shown beyond a reasonable doubt.
As noted, defendant stipulated to being under the influence. --------
The term "operates" as used in N.J.S.A. 39:4-50(a) has been broadly interpreted. State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988); State v. Mulcahy, 107 N.J. 467, 478 (1987). "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) (citations omitted). Courts have consistently adopted a practical and broad interpretation of the term "operation" in order to express fully the meaning of the statute. Tischio, supra, 107 N.J. at 513; State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993).
The Supreme Court first discussed the scope of "operation" in State v. Sweeney, 40 N.J. 359, 360-361 (1963). In affirming the defendant's conviction, the Court held:
[A] person "operates" — or for that matter, "drives" — a motor vehicle under the influence of intoxicating liquor, within the meaning of N.J.S.A. 39:4-50 . . . when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains
in the driver's seat behind the steering wheel, with the intent to move the vehicle[.]Evidence of "intent to move the vehicle" satisfies the statutory requirement of operation so that actual movement is not required. Ibid.
[Ibid.]
Here, the Law Division judge found, and we agree, there was sufficient circumstantial evidence which supported the finding that defendant intended to operate the vehicle. Defendant was in the driver's seat with the engine running. Saliently, accepting the testimony of the witness as credible, defendant was outside the vehicle when the witness left the scene. Defendant's decision to sit in the driver's seat upon re-entering the vehicle evinced an intent to operate. In sum, given the record before us and our standard of review, we discern no reason to disturb the Law Division judge's determination.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION