Opinion
DOCKET NO. A-2111-10T3
08-18-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LINDA RENDOWSKI, Defendant-Appellant.
Gregory S. Abramson argued the cause for appellant (Lawrence A. Leven, attorney; Mr. Abramson, on the brief). Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Friedman, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges J. N. Harris and Fasciale.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2010-053.
Gregory S. Abramson argued the cause for appellant (Lawrence A. Leven, attorney; Mr. Abramson, on the brief).
Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Friedman, on the brief). PER CURIAM
Defendant appeals from her conviction for driving a motor vehicle when her license was suspended, N.J.S.A. 39:3-40. Defendant contends that the State failed to prove beyond a reasonable doubt that she operated the vehicle. We disagree and affirm.
On June 12, 2010, Officers Jessica Luszcz and Glenn Simmons responded to an emergency call for medical assistance outside of a diner. The officers arrived at the scene and found defendant in a vehicle parked in a fire zone illegally. They observed defendant was located in the driver's seat, her body slumped over the steering wheel, and that she was unresponsive to their questions. After an ambulance transported defendant to the hospital, Officer Luszcz located the keys in the car and moved the car to a legal parking spot.
The officers were unable to locate any identification of defendant, but determined by running the license plates the car was registered in the name of defendant's mother. It is undisputed that defendant's drivers license was suspended.
Municipal Court Judge Donald O'Connor conducted a trial and listened to the testimony from the officers. The judge concluded that defendant "operated" the car while her license was suspended because defendant was found inside the car, the keys were located in the car, and the car "got to this parking space somehow." Judge O'Connor found defendant guilty, imposed the appropriate fines and penalties, suspended her license for 180 days, and sentenced defendant to jail for ten days. The judge recommended that defendant participate in either the Sheriff Labor Assistance Program (SLAP) or the Second Chance Program, and then stayed the sentence pending appeal.
The municipal judge stated that the keys were found in the ignition but the testimony revealed that they were located in the car.
Defendant appealed to the Law Division and Judge Rachel Davidson conducted a trial de novo. Judge Davidson inferred from the facts of the case that defendant had been driving the car and found defendant guilty of driving while on the suspended list. Judge Davidson imposed the same sentence as Judge O'Connor, and then issued a stay pending appeal.
On appeal, defendant argues:
THE EVIDENCE PRESENTED AT THE SUPERIOR COURT TRIAL IS INSUFFICIENT TO SUSTAIN A CONVICTION.
In a matter such as this, our scope of review is limited. Following defendant's conviction in municipal court, she appealed to the Law Division pursuant to Rule 3:23-1. See, e.g., State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division judge then conducted a trial de novo on the municipal court record pursuant to Rule 3:23-8(a). See, e.g., State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). In conducting that trial, the Law Division judge was required to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). In our review, we must likewise give deference to the findings of the trial judge that were influenced by his opportunity to hear and see the witnesses. Id. at 161. Having done so, we must then determine whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Our review of the law is de novo. Id. at 158-59.
In determining whether the sufficiency of the evidence warranted a conviction we must decide "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573, rehearing denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979). See also State v. Martinez, 97 N.J. 567, 572 (1984) (applying standard set forth in Jackson). The State's entitlement to benefit from all reasonable inferences, however, "cannot be used to reduce the State's burden of establishing the essential elements of the offense charged beyond a reasonable doubt." Id. at 572.
N.J.S.A. 39:3-40 prohibits a person whose license has been suspended from "personally operat[ing] a motor vehicle . . . during the period of suspension . . . ." The term "operate" is "given broad construction." State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005). "'Operation may be proved by any direct or circumstantial evidence -- as long as it is competent and meets the requisite standards of proof.'" Ibid. (quoting State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992)). We have stated that:
"Operation" may be proved by actual observation of the defendant driving while intoxicated, State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976); by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, State v. Mulcahy, 107 N.J. 467, 476, 527 (1987); [State v.]Morris, 262 N.J. Super. [413,] 419-20 [(App. Div. 1992)]; State v. Sweeney, 77 N.J. Super. 512, 521, 187 (App. Div. 1962); State v. Witter, 33 N.J. Super. 1, 5-7, 10 (App. Div. 1954); or by defendant's admission, State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant's conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 506, 443 (1981)[.][]
[Ebert, supra, 377 N.J. Super. at 10-11.]
Although primarily discussed in the driving while intoxicated context, "operation" has the same meaning and is proved the same way in the context of operating a motor vehicle without a license. See State v. Derby, 256 N.J. Super. 702, 708 (Law Div. 1992) ("It is this court's conclusion that the Legislature intended but one definition of operation . . . . The distinction that has developed . . . in the interpretation of "operation" between cases involving the driving while impaired statute, . . . and those motor vehicle code and insurance cases should be eliminated."). Although Derby is a Law Division case and not binding on this court, we find the judge's reasoning to be persuasive.
Here, circumstantial evidence established beyond a reasonable doubt that defendant operated the car while her license was suspended and parked it illegally outside of the diner. She was alone in the car, her body was located in the driver's seat, her left arm was on the steering wheel, and the keys were found in the car. Moreover, the car was located at a place where cars are not normally parked.
Affirmed; the stay is vacated.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION