                                NOT FOR PUBLICATION WITHOUT THE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-1320-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERT J. YOUNG, JR.,

     Defendant-Appellant.
______________________________

                    Submitted June 5, 2019 – Decided July 3, 2019

                    Before Judges Koblitz and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Municipal Appeal No. 8-18.

                    Helmer, Conley & Kasselman, PA, attorneys for
                    appellant (Patricia B. Quelch, of counsel and on the
                    brief).

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (Melinda A. Harrigan, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Robert J. Young. Jr., appeals from the Law Division's October

17, 2018 order entered after a de novo trial on the record. The Law Division

found defendant guilty of driving while intoxicated (DWI) in violation of

N.J.S.A. 39:4-50. After reviewing defendant's contentions in light of the record

and applicable principles of law, we affirm.

      On July 7, 2017, defendant was charged with DWI, N.J.S.A. 39:4-50, and

reckless driving, N.J.S.A. 39:4-96. At approximately 7:45 a.m. that morning, a

woman stopped a Ventnor police officer in the parking lot of a convenience

store, and asked him to check on a man who appeared to be unconscious or

asleep in a parked minivan.

      The officer knocked on the van's window several times before the man,

later identified as defendant, woke up. The officer noted defendant was in the

driver's seat, the key was in the ignition, and the engine was running. When

defendant awoke, the officer asked him to turn off the engine and take the key

out of the ignition. In responding to the officer's inquiry as to where he had

come from, defendant pointed in a westerly direction and said he was at a

friend's house. The officer observed that defendant smelled of alcohol, was

mumbling and hard to understand.




                                                                        A-1320-18T3
                                       2
        After defendant failed field sobriety tests, he was arrested and charged

with DWI and reckless driving. An Alcotest, performed at the police station,

produced a blood alcohol content reading of 0.16 %.

        Later that day, the officer reviewed the convenience store's surveillance

video, which showed defendant pulling into the parking lot at 5:50 a.m. No one

exited or entered the vehicle between the time it was parked and the time the

officer knocked on the window. The officer memorialized his observations in

his police report.

        At the municipal court trial, defendant stipulated to the facts and his

intoxication, but disputed that he was "operating" the vehicle. Following the

trial, the municipal court judge determined defendant was operating the van and

found him guilty of DWI in violation of N.J.S.A. 39:4-50.1

        Defendant appealed to the Law Division, where the court conducted a trial

de novo on the record. In a written opinion issued October 17, 2018, the Law

Division judge also found defendant guilty. He noted that the officer found

defendant in a convenience store parking lot, a business whose purpose is to

"grab and go." Defendant was sitting in the driver's seat, the key was in the

ignition, and the engine was running.        Defendant did not contend he had


1
    He was acquitted of the reckless driving charge.
                                                                         A-1320-18T3
                                         3
consumed alcohol elsewhere and then came to the parking lot to sleep it off, nor

did he claim he had not consumed alcohol until after parking in the lot. The

judge concluded there was sufficient circumstantial evidence to demonstrate

defendant operated the vehicle while intoxicated.

      In this appeal, defendant argues the State has failed to prove he was

operating his vehicle while intoxicated.

      Our scope of review is limited to whether the conclusions of the Law

Division judge "could reasonably have been reached on sufficient credible

evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We

do "not undertake to alter concurrent findings of facts and credibility

determinations made by two lower courts absent a very obvious and exceptional

showing of error." State v. Robertson, 228 N.J. 138, 148 (2017) (quoting State

v. Locurto, 157 N.J. 463, 474 (1999)).

      We give substantial deference to a trial judge's findings of fact. Cesare v.

Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Invr's

Ins. Co., 65 N.J. 474, 484 (1974)). These findings should only be disturbed

when there is no doubt that they are inconsistent with the relevant, credible

evidence presented below, such that a manifest denial of justice would result

from their preservation. Id. at 412. We owe no deference to the trial judge's


                                                                          A-1320-18T3
                                         4
legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995).

      Defendant contends the State did not prove beyond a reasonable doubt the

operation element of the DWI statute. A person is deemed to have been driving

while intoxicated if that person "operates a motor vehicle while under the

influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing

drug." N.J.S.A. 39:4-50(a). "Actual operation is not required." State v. Ebert,

377 N.J. Super. 1, 10 (App. Div. 2005). "'Operation' may be prove[n] by actual

observation of the defendant driving while intoxicated," by defendant's

admission, or through circumstantial evidence "indicating that the defendant had

been driving while intoxicated." Id. at 10-11 (citations omitted).

      Here, the Law Division judge found sufficient circumstantial evidence to

prove defendant operated the vehicle, although he ruled the portion of the

videotape filmed prior to the officer's arrival was inadmissible. Defendant was

found asleep in the van in the parking lot of a convenience store, with the key

in the ignition and the engine running. There was no evidence that he had

arrived at that location in any other manner but by driving himself; nor did

defendant claim otherwise. To the contrary, he informed the officer he had come




                                                                        A-1320-18T3
                                       5
from a friend's house. There also was no evidence that defendant consumed

alcohol after he parked his van in the lot.

      We discern no basis to disturb the judge's decision.      He thoroughly

reviewed the facts and we are satisfied the record contained sufficient credible

evidence to substantiate his finding beyond a reasonable doubt that defendant

was operating the vehicle.

      Affirmed.




                                                                        A-1320-18T3
                                        6
