Opinion
DOCKET NO. A-3461-13T4
04-28-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SEUNG JONG KIM, Defendant-Appellant.
Song Law Firm, LLC, attorneys for appellant (Howard Z. Myerowitz, on the brief). John L. Molinelli, Bergen County Prosecutor (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 10-10-13. Song Law Firm, LLC, attorneys for appellant (Howard Z. Myerowitz, on the brief). John L. Molinelli, Bergen County Prosecutor (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Seung Jong Kim appeals from his February 25, 2014 conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. Because the factual findings of the Law Division judge are supported by sufficient credible evidence, we affirm.
Defendant was arrested for DWI at about 4:30 a.m., after a Fort Lee police officer found defendant sitting in his car in a parking garage. According to the officer, the car's motor was running, the lights were on, and defendant was sitting in the driver's seat. The seat was not reclined. Defendant's head was bent over the steering wheel and bobbing up and down. The officer testified that when he asked defendant for his license and registration, defendant pushed the car's start button several times.
The parties stipulated that the vehicle started with a button rather than by turning a key in the ignition, and would start as long as the driver had the key on his person, and pressed his foot on the brake while pushing the ignition button.
Defendant stipulated that he was intoxicated with a .14 blood alcohol content. The only issue was whether he had the requisite intent to operate the car.
Defendant and a friend, Mr. Park, both testified that Park drove defendant and another colleague to a college alumni meeting in New York that evening. They spent the evening socializing and drinking at a Korean restaurant. At the end of the evening around 1:30 a.m., the friend dropped off two women alumnae at their home on 115th Street in Manhattan, and then drove defendant back to the parking garage in Fort Lee where defendant had left his car. The friend testified that he dropped defendant off outside the garage at around 2:10 a.m. However, he testified that defendant did not intend to drive home but intended to call a taxi. Although the police officer testified that it was a high crime area, the friend did not wait for defendant to call the cab or for the taxi to arrive; he testified that he just drove away, despite knowing that defendant was drunk and would have to call a taxi to get home. Neither the friend nor defendant provided a convincing explanation as to why the friend did not simply drive defendant to his house, which was about three miles from Ft. Lee.
Defendant testified that he intended to call a cab but did not do so because, for some reason, the telephone number of the Korean cab company had been deleted from his phone contacts. He therefore decided to take a nap in his car. After sleeping in the passenger seat for some time, he awoke, felt cold and decided to turn on the ignition so that the car's heater would function. He testified that he then fell asleep in the driver's seat. Neither the municipal judge nor the Law Division judge found that explanation credible. They each found that defendant sat in the driver's seat and turned on the ignition because he intended to operate the car.
The DWI statute applies to "a person who operates a motor vehicle while under the influence of intoxicating liquor." N.J.S.A. 39:4-50(a).
[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 and 39:4-50.1, 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[.]It is not necessary for a defendant to cause the vehicle to move from a stationary position. State v. Sweeney, 77 N.J. Super. 512, 520-21 (App. Div. 1962), aff'd, 40 N.J. 359 (1963); State v. Morris, 262 N.J. Super. 413, 418 (App. Div. 1993). However, the court must find that the defendant intended to drive the car. State v. Daly, 64 N.J. 122, 125 (1973).
[State v. Sweeney, 40 N.J. 359, 360-61 (1963).]
In this case, the decision turned on whether the Law Division judge believed defendant's story about moving from the passenger seat to the driver's seat to turn the heat on in the car, or whether the judge concluded that defendant got into the driver's seat and turned on the ignition because he intended to drive home but fell asleep before he could put the car in gear. Like the municipal judge, the Law Division judge found defendant's and Park's testimony less than credible, and found that Park dropped defendant off at his car so defendant could drive himself home. Both judges found that when dropped off at the garage, defendant got into the driver's seat and turned on the ignition with the intent to drive the car.
We must defer to the Law Division's judge's factual findings so long as they are supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 470-74 (1999). We defer to his credibility determinations. Ibid. Here, those determinations are entitled to particular deference, because they are the same as those of the municipal judge. Id. at 474. Having reviewed the record in light of the applicable legal standard, we find no basis to disturb the Law Division judge's factual findings, and in light of those findings, we must affirm defendant's conviction. The fact that defendant fell asleep before actually putting the car in gear and driving away, is of no moment. Having sat in the driver's seat and started the ignition with the intent of driving home, despite his intoxicated condition, defendant violated N.J.S.A. 39:4-50.
Defendant's conviction is affirmed. The Law Division granted a stay of the suspension of defendant's driving privileges pending this appeal. The matter is remanded to the Law Division for the limited purpose of entering an order vacating the stay.
Affirmed as to conviction and sentence. Remanded to vacate stay. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION