                                NOT FOR PUBLICATION WITHOUT THE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-0940-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ELIJAH ANTHONY,

     Defendant-Appellant.
______________________________

                    Submitted February 12, 2019 – Decided February 22, 2019

                    Before Judges Fisher and Hoffman.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 16-05-0413.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (John W. Douard, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Christopher W. Hsieh, Chief
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      At 3:00 a.m., on February 23, 2015, a Passaic County Sheriff's Department

detective encountered a minivan stopped in the middle of Kuller Road in Clifton.

The vehicle's lights were off but its engine running, and defendant was observed

urinating on a nearby building.     The detective stopped his vehicle and , in

response to his inquiry, defendant said he was waiting for AAA. The detective

asked for defendant's identification and noticed defendant had bloodshot and

watery eyes; the detective also smelled alcohol. Defendant failed a field sobriety

test and was arrested for driving while under the influence, N.J.S.A. 39:4-50

(DWI). Further investigation revealed that defendant's driving privileges were

suspended; he was charged with operating a motor vehicle during a period of

license suspension, N.J.S.A. 2C:40-26(b).1

      In his opening statement, defense counsel argued to the jury that earlier

than the detective's encounter with defendant, other officers had arrived at the

scene. According to defense counsel's opening, these other officers "waited

there for about a half an hour, and then, they drove away" without issuing a

summons or making an arrest. The prosecutor objected and, at the close of the


1
   N.J.S.A. 2C:40-26(b) makes it a fourth-degree offense, with a mandatory
incarceration period, "to operate a motor vehicle during the period of license
suspension in violation of [N.J.S.A. 39:3-40], if the actor's license was
suspended or revoked for a second or subsequent violation of [N.J.S.A. 39:4-50]
or [N.J.S.A. 39:4-50.4(a)]."
                                                                          A-0940-17T2
                                        2
State's case, the judge conducted a N.J.R.E. 104 hearing. At the hearing, one of

the officers who arrived earlier testified he had no recollection but

acknowledged police records revealed he arrived at the location at 1:19 a.m.,

and stayed twenty-two minutes before leaving without taking action. Another

officer testified at the N.J.R.E. 104 hearing that he also had no recollection but

records revealed he arrived at 1:30 a.m. and stayed fourteen minutes without

taking action.   Finding no connection between these other officers' earlier

uneventful encounters with defendant and any conceivable defense to the

N.J.S.A. 2C:40-26(b) charge, the judge denied defendant the opportunity to call

those two officers to testify before the jury.

      Defendant was convicted as charged and sentenced to a 180-day jail term,

a two-year probationary period, a ten-year license suspension, and other

monetary penalties. He appeals, arguing in a single point:

            THE JUDGE DEPRIVED DEFENDANT OF HIS
            RIGHTS TO PRESENT A DEFENSE, TO DUE
            PROCESS, AND TO A FAIR TRIAL BY
            IMPROPERLY PRECLUDING DEFENSE COUNSEL
            FROM INTRODUCING EVIDENCE THAT POLICE
            OFFICERS HAD EARLIER ARRIVED AT THE
            SCENE AND FOUND NO CRIME WAS BEING
            COMMITTED.

We find insufficient merit in this argument to warrant further discussion in a

written opinion. R. 2:11-3(e)(2).

                                                                          A-0940-17T2
                                         3
      We add only that the offense for which defendant was convicted required

proof of defendant's prior DWI convictions and the existing suspension period,

as well as defendant's operation of a vehicle during the suspension period. That

defendant was not seen behind the wheel of his vehicle did not preclude a finding

that he was operating the vehicle. State v. Ebert, 377 N.J. Super. 1, 11 (App.

Div. 2005) (holding that operation may be established "by observation of the

defendant in or out of the vehicle under circumstances indicating that the

defendant had been driving"); see also State v. Mulcahy, 107 N.J. 467, 476

(1987). Defendant was alone and near the vehicle in the early morning hours,

the vehicle was stopped in the middle of the road with its engine running, and

defendant stated his reason for being there was that he was waiting for AAA.

That was more than sufficient for a jury to find that he had operated the vehicle

that night and had a further intention of operating as soon as AAA resolved

whatever problem the vehicle had. The fact that these two other officers arrived

at the same scene an hour or more earlier does not call into question whether

defendant had been operating the vehicle while suspended, nor would it have

had any arguable relevance to the other elements of the offense for which he was

convicted.




                                                                         A-0940-17T2
                                       4
      In short, defendant forcefully argues he was entitled to present a defense.

That, of course, is true. But even now, defendant has not been able to articulate

a defense to this particular charge that would be supported by the other officers'

anticipated testimony that they were at the scene a short time earlier and had no

recollection of the circumstances, although they acknowledged that no arrest

was then made by them. These circumstances had no bearing on whether

defendant violated N.J.S.A. 2C:40-26(b).

      Affirmed.




                                                                          A-0940-17T2
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