                        NOT FOR PUBLICATION WITHOUT THE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
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5251-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOHN D. WILLIAMS, JR.,

     Defendant-Appellant.
_____________________________

              Submitted July 9, 2018 – Decided July 31, 2018

              Before Judges Carroll and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Municipal
              Appeal No. 17-009.

              Christopher       T.    Campbell,      attorney      for
              appellant.

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Mary R.
              Juliano, Assistant Prosecutor, of counsel and
              on the brief; Emily M. M. Pirro, Legal
              Assistant, on the brief).

PER CURIAM

        Following    denial    of    his   suppression    motion   in    municipal

court, defendant John D. Williams, Jr., entered a conditional

guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50,
and possession of a hypodermic syringe, N.J.S.A. 2C:36-6(a).                The

municipal court suspended defendant's driving privileges for ten

years and imposed a five-day jail term, which was suspended on the

condition     that    defendant     successfully    complete    a     one-year

probationary term. The court also ordered defendant to participate

in   the   Intoxicated     Driver   Resource    Center,   and   imposed     the

appropriate fines, assessments, surcharges, and costs.                Upon de

novo review, the Law Division judge denied defendant's suppression

motion,     found    defendant    guilty,    and   imposed   the    identical

sentence.

      On appeal, defendant challenges the denial of his motion to

suppress.     Defendant argues the police lacked a reasonable and

articulable suspicion to approach his parked vehicle, and lacked

probable cause to search the car.            He also argues that, because

there was no evidence he operated or intended to operate his car,

the police lacked probable cause to order him out of the vehicle

to perform field sobriety tests.            Defendant further contends the

factual basis for his guilty plea was inadequate.            We reject these

arguments and affirm.

      We   derive    the   following   facts    from   the   record    of   the

suppression hearing.        Shortly before midnight on May 30, 2016,

Officer Jonathan Gramlich of the Wall Township Police Department

(WTPD) was on routine patrol when he was dispatched to the parking

                                       2                               A-5251-16T3
lot of a local Quick Chek convenience store to conduct "[a] welfare

check on a subject who was reported to be sleeping in the vehicle."

Upon arriving, Gramlich met with a retired WTPD emergency medical

technician who had called the police, and then directed Gramlich

to the parked vehicle.     Gramlich noted the vehicle's engine was

running and an adult male, later identified as defendant, was

asleep in the driver's seat with his head "slumped backwards, to

the side."

     Gramlich approached the car and awakened defendant by loudly

announcing his presence.    According to Gramlich, defendant

          stated that he was on his way to work, his
          speech was slow.     He immediately appeared
          under the influence, specifically with droopy
          eye lids, slow lazy speech. Again, stated he
          was on his way to work. I observed cigarette
          ashes all over him, and he was dressed
          inappropriately with no shirt, pajama pants
          and a bathrobe on.

     In response to Gramlich's inquiry, defendant "stated he had

to be at work at 6:00 a.m.[,]" which the officer "found suspicious

seeing it was nearly midnight."       Gramlich also observed "[t]here

were bits of cotton on the floorboard [of the car] that are

indicative of heroin use."

     Gramlich asked defendant to exit the vehicle to perform field

sobriety tests because he believed defendant might have been "under

the influence."   When defendant stepped out of the car, Gramlich


                                  3                            A-5251-16T3
observed a hypodermic needle cap in his bathrobe pocket.             In

response to a question from the officer, defendant advised there

"may be" hypodermic needles in the car.   At some point, defendant

also stated he had used heroin that day.     Gramlich searched the

car and recovered a hypodermic needle "loaded with an almost clear

fluid that is indicative of heroin[,]" located next to "a spoon

with burn marks underneath and a residue on top, that's indicative

of . . . preparing heroin for use."

       Defendant testified at the suppression hearing that he left

his home around 11:10 or 11:15 p.m. and drove to the Quick Chek

"to buy a pack of cigarettes and use heroin in the parking lot."

He stated he had purchased the heroin in Asbury Park earlier that

day.   At Quick Chek, defendant bought cigarettes, returned to his

car, and then "started the car because it was warm, put the air

conditioner on.    And I lit the spoon to cook the heroin and load

the syringe, and I injected it in my arm."     Defendant testified

he intended to leave "[a]s soon as I came down I guess."    On cross-

examination by the prosecutor, the following exchange ensued:

           Q. Mr. Williams where did you plan on going
           after you came to?

           A. Most likely back home.

           Q. And about how long would that have been
           after you initially took the heroin?
           A. I really couldn't tell you, it would depend
           on how bad I was.

                                 4                            A-5251-16T3
            Q. But you planned on driving?

            A. Eventually, yeah.

On re-direct examination, defendant stated: "I wasn't planning on

moving, I was staying there because I couldn't go home because my

wife would know that I was high."

      At the conclusion of testimony, the municipal court judge

denied defendant's motion to suppress. The judge found the officer

had   a   right   to   confront    defendant,    and   then   based   on    his

observations, had a reasonable and articulable suspicion that

defendant was under the influence and properly ordered defendant

to exit his vehicle.      Upon then observing a hypodermic needle cap

on defendant's person, "the patrolman's suspicion[,] which was

that . . . defendant was under the influence of heroin, became a

much more articulable suspicion because now he has proof that

. . . defendant is in fact using heroin."          The judge further found

defendant "has the engine running, he is in the car, he is in the

driver seat, he is in control of the vehicle.                   And when he

testified, he indicated as soon as he 'came out of it' it was his

intention to operate the motor vehicle."          Consequently, the judge

concluded "there was sufficient probable cause to arrest . . .

defendant for driving while intoxicated."

      Defendant    entered   a    conditional   guilty   plea   to    DWI   and

possession of a hypodermic syringe.             Pertinent to this appeal,

                                      5                                A-5251-16T3
during the plea colloquy, defendant admitted that on May 30, 2016,

in Wall Township, he was "driving while intoxicated as a result

of [his] ingestion of heroin while [he was] seated in [his] motor

vehicle." The State agreed to dismiss the associated motor vehicle

and drug charges, subject to reinstatement if defendant were

successful on appeal.

     Defendant appealed to the Law Division, arguing there was no

reasonable suspicion to seize defendant, nor probable cause to

search    his   vehicle      or   arrest    him       for    DWI.     Defendant       also

challenged      the    factual    basis    for       his    guilty   plea    to   DWI    as

inadequate.      Following a de novo review, Judge Thomas F. Scully

denied defendant's suppression motion.                       In a thoughtful oral

opinion, Judge Scully found that "Patrolman Gramlich's initial

approach of . . . defendant's already stopped vehicle . . . was

for a valid field inquiry for which no suspicion was required."

     Next, Judge Scully noted that after Gramlich approached the

car, he observed defendant appeared to be under the influence, and

there    were   bits    of   cotton   on       the    vehicle's      floor   that     were

consistent with heroin use.           The judge determined that based on

the totality of the circumstances, "Gramlich . . . [then] had a

sufficient basis to reasonably suspect that . . . defendant was

intoxicated and could lawfully ask . . . defendant to step out of

the vehicle and to administer a sobriety test, and also had the

                                           6                                      A-5251-16T3
basis to conclude that he has been or is about to engage in

criminal wrongdoing."

     Regarding defendant's operation of the vehicle, Judge Scully

found defendant's argument erroneously conflated probable cause

to arrest defendant for DWI with the proof beyond a reasonable

doubt necessary to convict him of that offense.     The judge again

found, based on the totality of the circumstances, which included

the officer's observation of bits of cotton on the vehicle's floor

that were consistent with heroin use and his admission that he had

used heroin that day, that there was

            more than a fair probability that a crime has
            been committed and defendant was intoxicated
            and intended to drive his vehicle at the
            moment the officer approached him.         The
            officer, in this [c]ourt's view, did not have
            to wait until . . . defendant put his vehicle
            in motion to offend the law. . . . [D]efendant
            offended the law the moment he articulated his
            intention to drive his vehicle.

     Finally, Judge Scully found "defendant's factual basis [for

his guilty plea] established all the essential elements of N.J.S.A.

39:4-50."     The judge declined to consider defendant's argument

concerning the search of the vehicle because defendant did not

raise that contention in the municipal court and, as such, the

record was insufficient to address it.    This appeal followed.

     Our review of a trial judge's decision on a motion to suppress

is limited.     State v. Robinson, 200 N.J. 1, 15 (2009).         "An

                                  7                          A-5251-16T3
appellate court reviewing a motion to suppress evidence in a

criminal case must uphold the factual findings underlying the

trial   court's   decision,    provided   that   those   findings    are

'supported by sufficient credible evidence in the record.'"         State

v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven,

226 N.J. 20, 40 (2016)).      We do so "because those findings 'are

substantially influenced by [an] opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing

court cannot enjoy.'" State v. Gamble, 218 N.J. 412, 424-25 (2014)

(alteration in original) (quoting State v. Johnson, 42 N.J. 146,

161 (1964)).   We owe no deference, however, to conclusions of law

made by trial courts in suppression decisions, which we instead

review de novo.   State v. Watts, 223 N.J. 503, 516 (2015).

     In addition, on appeal from a municipal court to the Law

Division, the review is de novo on the record.     R. 3:23-8(a).     The

Law Division judge must make independent findings of fact and

conclusions of law based upon the evidentiary record of the

municipal court, and must give due regard to the opportunity of a

municipal court judge to assess the credibility of the witnesses.

Johnson, 42 N.J. at 157.      On appeal from a Law Division decision,

the issue is whether there is sufficient credible evidence present

in the record to uphold its findings.      State v. Segars, 172 N.J.

481, 488 (2002).     "We do not weigh the evidence, assess the

                                    8                          A-5251-16T3
credibility of witnesses, or make conclusions about the evidence."

State v. Barone, 147 N.J. 599, 615 (1997).           Because neither this

court nor the Law Division judge is in a good position to assess

credibility, the municipal court's credibility findings are given

deference.     State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing

Johnson, 42 N.J. at 161-62).

       Our Supreme Court has defined a field inquiry as "the least

intrusive" form of police encounter, occurring "when a police

officer approaches an individual and asks 'if [the person] is

willing to answer some questions.'"           State v. Pineiro, 181 N.J.

13, 20 (2004) (alteration in original) (quoting State v. Nishina,

175 N.J. 502, 510 (2003)).         "A field inquiry is permissible so

long   as    the   questions   '[are]   not   harassing,   overbearing,    or

accusatory in nature.'"        Ibid. (alteration in original) (quoting

Nishina, 175 N.J. at 510). During such an inquiry, "the individual

approached 'need not answer any question put to him; indeed, he

may decline to listen to the questions at all and may go on his

way.'"      State v. Privott, 203 N.J. 16, 24 (2010) (quoting State

v. Maryland, 167 N.J. 471, 483 (2001)).

       In contrast to a field inquiry, an investigatory stop, also

known as a Terry stop, is characterized by a detention in which

the person approached by a police officer would not reasonably

feel free to leave, even though the encounter falls short of a

                                        9                           A-5251-16T3
formal arrest.   State v. Stovall, 170 N.J. 346, 355-56 (2002); see

also Terry v. Ohio, 392 U.S. 1, 16 (1968).              The Terry exception

to the warrant requirement permits a police officer to detain an

individual for a brief period, if that stop is "based on 'specific

and   articulable   facts     which,     taken   together    with   rational

inferences from those facts,' give rise to a reasonable suspicion

of criminal activity."        State v. Rodriguez, 172 N.J. 117, 126

(2002)   (quoting   Terry,    392   U.S.   at    21).    Under   this     well-

established standard, "An investigatory stop is valid only if the

officer has a 'particularized suspicion' based upon an objective

observation that the person stopped has been [engaged] or is about

to engage in criminal wrongdoing."         State v. Davis, 104 N.J. 490,

504 (1986).

      In the context of a motor vehicle stop, a police officer is

permitted to approach a parked car and engage the driver in

voluntary conversation.       State v. Stampone, 341 N.J. Super. 247,

252 (App. Div. 2001).        This constitutes a field inquiry.            Ibid.

"[A] field [inquiry] is not a Fourth Amendment event 'so long as

the officer does not deny the individual the right to move.'"

State v. Egan, 325 N.J. Super. 402, 409 (Law Div. 1999) (quoting

State v. Sheffield, 62 N.J. 441, 447 (1973)).           The transition from

field inquiry to investigatory stop occurs when the interaction

objectively conveys to the driver that the engagement was not

                                    10                                  A-5251-16T3
voluntary, and he or she was not free to leave.         Stampone, 341

N.J. Super. at 252.    However, there is no seizure if: "(1) the

officer's questions were conversational in manner; (2) the officer

made no demands or issued orders; and (3) the officer's questions

were neither 'overbearing or harassing in nature.'"         Egan, 325

N.J. Super. at 409 (quoting State ex rel. J.G., 320 N.J. Super.

21, 30 (App. Div. 1999)).

     Here, Officer Gramlich's initial approach of defendant's

vehicle was clearly a field inquiry.        The scope of the field

inquiry permitted him to inquire why defendant was there or to

otherwise engage him in consensual conversation and check on his

condition.   Id. at 410.

     Thereafter, Gramlich's observations of and conversation with

defendant, coupled with the presence of bits of cotton on the

vehicle's floor that were consistent with heroin use, gave the

officer an ample factual basis for a reasonable and articulable

suspicion that defendant was under the influence and had violated

N.J.S.A.   39:4-50.   Accordingly,   the   officer   properly   ordered

defendant to exit the vehicle to administer field sobriety tests.

A hypodermic needle cap was then observed in defendant's pocket

and he admitted to using heroin, thus establishing probable cause

for his arrest.



                               11                               A-5251-16T3
     We also agree with Judge Scully that the evidence adduced at

the suppression hearing established probable cause that defendant

intended to operate his car.        "[A] person who operates a motor

vehicle while under the influence of intoxicating . . . narcotic"

is guilty of DWI.       N.J.S.A. 39:4-50(a).      The term "operate" as

used in N.J.S.A. 39:4-50(a) has been broadly interpreted.          State

v. Tischio, 107 N.J. 504, 513 (1987); State v. Mulcahy, 107 N.J.

467, 478-79 (1987).     Proof of actual operation of a motor vehicle

is not required.    State v. Ebert, 377 N.J. Super. 1, 10 (App. Div.

2005).     Intent to move a motor vehicle is "operation" under the

statute.    Tischio, 107 N.J. at 513; Mulcahy, 107 N.J. at 478-79.

     Specifically, our Supreme Court has held that

            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.

            [State v.    Sweeney,    40   N.J.   359,   360-61
            (1963).]

Evidence of intent to drive or "intent to move the vehicle"

satisfies the statutory requisite of operation so that the actual

movement of the vehicle is not required.         Id. at 361.


                                    12                           A-5251-16T3
     Judge Scully properly noted that, at the motion to suppress

stage, the State was merely required to establish probable cause

that defendant intended to operate the vehicle, versus proving

such intent to operate beyond a reasonable doubt.             "Probable cause

has been defined as a well[-]grounded suspicion that a crime has

been or is being committed, and as a reasonable ground for belief

of guilt."    State v. Gibson, 218 N.J. 277, 292 (2014) (citations

omitted).    It "is more than a mere suspicion of guilt, [but]

. . . less than the evidence necessary to convict a defendant of

a crime in a court of law."            State v. Basil, 202 N.J. 570, 585

(2010).     In the context of an arrest for DWI, "the yardstick

. . . is whether the arresting officer had reasonable grounds to

believe that the driver was operating a motor vehicle in violation

of [N.J.S.A.] 39:4-50."         Strelecki v. Coan, 97 N.J. Super. 279,

284 (App. Div. 1967) (citation omitted).

     There   was     sufficient   credible    evidence   in    this   case    to

establish probable cause that defendant intended to move his car.

In particular, the engine was running, defendant was sitting in

the driver's seat at the steering wheel, albeit passed out, and

when he awoke, he expressed to Officer Gramlich his clear intent

to drive to work.

     Like    Judge    Scully,     we   decline   to   address    defendant's

contention that the subsequent search of his vehicle was illegal.

                                       13                              A-5251-16T3
At the motion to suppress hearing in municipal court, defense

counsel agreed the issue was limited to whether "probable cause

[existed] to have . . . defendant exit his vehicle for the purpose

of performing psychophysical tests."                  "We generally 'decline to

consider questions or issues not properly presented to the trial

court . . . unless the questions so raised on appeal go to the

jurisdiction of the trial court or concern matters of great public

interest.'"     State v. Marroccelli, 448 N.J. Super. 349, 373 (App.

Div. 2017) (alteration in original) (quoting Robinson, 200 N.J.

at 20).      Neither exception applies here.

      Finally, we reject defendant's contention that the factual

basis elicited for his guilty plea to DWI was insufficient.                     When

a defendant challenges the factual basis for a guilty plea, our

review is de novo.           State v. Tate, 220 N.J. 393, 403-04 (2015).

That is so because "[a]n appellate court is in the same position

as the trial court in assessing whether the factual admissions

during a plea colloquy satisfy the essential elements of an

offense."      Id. at 404.

      Trial courts may not accept a guilty plea unless there is a

factual basis supporting it.          R. 3:9-2.        "Indeed, 'it is essential

to   elicit    from    the    defendant     a    comprehensive    factual    basis,

addressing each element of a given offense in substantial detail.'"

State   v.    Perez,   220    N.J.   423,       432   (2015)   (quoting   State    v.

                                          14                                A-5251-16T3
Campfield, 213 N.J. 218, 236 (2013)).                  Trial courts "must be

satisfied from the lips of the defendant . . . that he committed

every element of the crime charged[.]"                Id. at 432-33 (citations

and internal quotation marks omitted).            The factual foundation for

the plea "may take one of two forms[:] defendant may either

explicitly    admit   guilt   with     respect    to    the   elements   or   may

'acknowledge[] . . . facts constituting the essential elements of

the   crime.'"      Campfield,   213    N.J.     at    231   (second   and   third

alterations in original) (quoting State v. Sainz, 107 N.J. 283,

293 (1987)).

      Here, during the plea colloquy, defendant expressly admitted

driving while intoxicated in Wall Township on May 30, 2016, as a

result   of   his   ingestion    of    heroin.         Accordingly,    defendant

sufficiently acknowledged facts that constituted the essential

elements of N.J.S.A. 39:4-50.

      Affirmed.




                                       15                                A-5251-16T3
