                        NOT FOR PUBLICATION WITHOUT THE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-0042-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

THOMAS ZULLINGER,

     Defendant-Appellant.
___________________________

              Argued November 30, 2016 – Decided June 13, 2018

              Before Judges Fuentes and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Municipal
              Appeal No. 25-15-C.

              Scott A.       Gorman     argued     the    cause    for
              appellant.

              Alexander Mech, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the   cause   for  respondent   (Michael   H.
              Robertson, Acting Somerset County Prosecutor,
              attorney; Alexander Mech, of counsel and on
              the brief).

        The opinion of the court was delivered by

FUENTES, P.J.A.D.
     On   November     20,   2014,   Bridgewater   Police   Officer    Daniel

Hennessey charged defendant Thomas Zullinger with driving while

intoxicated (DWI), N.J.S.A. 39:4-50 and improper parking, N.J.S.A.

39:4-138.    On April 7, 2015, the Bridgewater Municipal Court heard

and denied defendant's motion to suppress evidence.               Defendant

thereafter pled guilty to DWI, conditioned upon his right to appeal

the denial of the motion to suppress to the Law Division as

provided under Rule 7:7-2(c).          The municipal court accepted the

guilty plea and dismissed the improper parking charge.

     Because    this   was    defendant's   second   DWI    conviction,    the

municipal court suspended his driving privileges for two years,

imposed a series of mandatory monetary penalties, ordered him to

pay a fine of $506 and perform thirty days of community service,

directed him to install an interlock device on his car, and ordered

him to serve two days in the Intoxicated Driver Resource Center

in lieu of serving the same number of days in jail.            See N.J.S.A.

39:4-50(a)(2).

     Pursuant to Rule 7:13-2, the municipal court stayed the

execution of the sentence provided defendant presented proof,

within twenty days of imposition of the sentence, that he: (1)

installed an interlock device in his car; and (2) filed a notice

of appeal for a trial de novo in the Law Division pursuant to Rule

3:23-2.     Defendant's de novo appeal of the denial of his motion

                                       2                              A-0042-15T2
to suppress came before the Law Division on July 29, 2015.                After

reviewing the record developed before the municipal court and

considering the arguments of counsel, Judge Bruce A. Jones denied

defendant's motion to suppress and imposed the same sentence.

Judge Jones explained the basis for his ruling in a memorandum of

opinion dated July 30, 2015.

     In an order dated August 11, 2015, the Law Division stayed

the non-monetary part of the sentence pending the outcome of

defendant's appeal to this court.         In an order dated September 18,

2015,   the    Law   Division   granted   the   State's   motion   to     limit

defendant's use of his vehicle pending appeal "to travel to and

from his employment and to carry out the duties required by his

employment during work hours."            The court further restricted

defendant's driving privileges to only "the vehicle on which an

ignition interlock device is installed."1

     Defendant now appeals from the order of the Law Division

denying his motion to suppress, raising the following arguments.

              POINT I

              THE LOWER COURT ERRED WHEN IT DENIED
              DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
              BECAUSE AT THE TIME OF THE ARREST, THE
              ARRESTING OFFICER'S OBSERVATIONS OF DEFENDANT
              WERE INSUFFICIENT TO LEAD A REASONABLE PRUDENT

1
  The Law Division granted defendant's application for a stay
before the Supreme Court decided State v. Robertson, 228 N.J. 138,
152 (2017).

                                     3                                  A-0042-15T2
            PERSON   TO  BELIEVE             THAT   DEFENDANT     WAS
            INTOXICATED.

            POINT II

            THE LOWER COURT ERRED WHEN IT DENIED
            DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
            BECAUSE AT THE TIME OF THE ARREST, THE FACTS
            THAT WERE AVAILABLE TO THE ARRESTING OFFICER
            WERE INSUFFICIENT TO PERMIT AN INFERENCE THAT
            DEFENDANT WAS INTOXICATED AT THE TIME THAT HE
            OPERATED A MOTOR [VEHICLE].

     We reject these arguments and affirm. We derive the following

facts   from    Officer    Hennessey's        testimony   at   the   evidentiary

hearing conducted by the municipal court to adjudicate defendant's

motion to suppress.        Judge Jones relied on these same facts when

he denied defendant's motion in the Law Division.

     At approximately 2:55 a.m. on November 20, 2014, Officer

Hennessey      saw   a   2007   Dodge    Magnum     parked   on   Heller    Drive,

"approximately two feet from the curb with its lights on."                   As he

approached the car on foot, Hennessey noticed defendant in the

driver's    seat,    "slumped     over   the    center    console."     Defendant

appeared to be asleep and the keys were in the car's ignition.

There were no other occupants in the car.

     Hennessey "banged on the windows several times" and shined

his flashlight in defendant's face in an attempt to wake him up.

When defendant finally woke up, Hennessey asked him if he knew

"what time . . . he [thought] it was."                Defendant responded "it


                                         4                                 A-0042-15T2
was around" one o'clock in the morning, when in fact it was two

hours later.         At this point, Hennessey "detected an odor of

alcoholic beverage [sic]" emanating from both defendant and the

interior cabin of the vehicle.        Defendant also told Hennessey that

he drove his car to the side of the road.          At Hennessey's request,

defendant stepped out of the vehicle and performed several field

sobriety tests.

     Because the motion to suppress was predicated on the police

officer's initial interactions with defendant, the prosecutor

opted   not    to   present   any   evidence     concerning   how   defendant

performed these field sobriety tests.          Judge Jones also found that

the police report containing information on this process was not

entered into evidence at the municipal court proceeding and was

therefore not part of the record before the Law Division. However,

Judge Jones did consider a November 24, 2014 Drinking-Report

completed     by    Officer   Hennessey   that    described   the   officer's

observations of defendant's conduct after the latter stepped out

of his vehicle:

              [A]s [d]efendant stood he swayed, his knees
              sagged, and he kept his feet wide apart for
              balance; his speech was slow and slurred; his
              demeanor was sleepy; his eyes were bloodshot
              and watery with droopy eyelids; his hand
              movement was slow; his face was flushed; and
              an odor of alcohol emanated from his breath.



                                      5                               A-0042-15T2
    On this record, Judge Jones concluded Officer Hennessey had

probable cause to charge defendant with DWI and arrest him at the

scene accordingly.    We agree.       Defendant's arguments attacking

this conclusion lack sufficient merit to warrant discussion in a

written opinion.   R. 2:11-3(e)(2).     We affirm substantially based

on the reasons expressed by Judge Jones in his July 30, 2015

memorandum of opinion.   The stay of execution of sentence entered

by the Law Division on September 18, 2015 is vacated.

    Affirmed.




                                  6                           A-0042-15T2
