                                NOT FOR PUBLICATION WITHOUT THE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-1154-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN A. JEDRA,

     Defendant-Appellant.
_____________________________

                   Submitted November 12, 2019 – Decided January 29, 2020

                   Before Judges Sumners and Natali.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Ocean County, Municipal Appeal No. 17-27.

                   Greggory M. Marootian, attorney for defendant.

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel J. Marzarella, Chief
                   Appellate Attorney, of counsel; Cheryl L. Hammel,
                   Assistant Prosecutor, on the brief).

PER CURIAM
      A Toms River Police Officer saw defendant John A. Jedra asleep in the

driver's seat of his idling car parked in front of a convenience store at 4:00 a.m.

After field sobriety tests and Alcotest results indicating defendant had a .15

blood alcohol content (BAC), he was charged with driving while intoxicated

(DWI), N.J.S.A. 39:4-50 and given a summons for reckless driving, N.J.S.A.

39:4-96. The municipal court found defendant guilty as a second offender of

DWI, based on its determination the State had proven beyond a reasonable doubt

that defendant intended to operate his car and that he was intoxicated based on

observation and his BAC. However, the court found him not guilty of reckless

driving since he was not observed in a moving vehicle. Following a trial de

novo in the Law Division, the trial judge issued an order and oral decision

affirming the municipal court's conviction. We affirm.

                                         I

      We derive the salient facts from the Toms River municipal court trial,

spread over two non-consecutive days. The State presented the testimony of

Toms River Police Officers John Marsicano and Michael DeRosa, and current

New Jersey State Trooper Kevin Alcott. Defendant presented the testimony of

former State Trooper Joseph Tafuni.




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      At approximately 4:00 a.m. on October 1, 2016, Marsicano parked his

police cruiser in front of a local convenience store. After exiting his vehicle to

enter the store, Marsicano noticed defendant asleep in the driver's seat of an

idling car properly parked in the store's parking lot. Upon leaving the store,

Marsicano returned to his cruiser, engaged its motor vehicle recorder (MVR),

and approached defendant's car.        The MVR video (the video) depicting

Marsicano's encounter with defendant and a transcript of the video were

admitted into evidence during the trial.

      Marsicano unsuccessfully tried multiple times to awaken the "deep

sleep[ing]" defendant by "knocking" and "banging" on the driver's side window.

Defendant eventually woke up when Marsicano opened the driver's side car

door. Upon opening the door, Marsicano detected the odor of alcohol. He

instructed defendant to turn off the car's engine, whereupon defendant fumbled

with the key in the ignition. Instead of rotating the key into the off position,

defendant instead reached for the car's clock and air vents, ultimately hitting the

lock button for the car door. Marsicano directed defendant to the location of the

keys and after defendant turned-off the engine, he re-ignited it.

      Once the car was turned off, Marsicano asked defendant for his driving

credentials. Defendant's movements were "slow and fumbling," with his voice


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                                           3
"slurred and slow," making him "hard to understand."        Marsicano noticed

defendant's eyes were "watery." Defendant's response to being asked if he had

consumed any alcoholic beverages was indecipherable.

     The video reveals the following colloquy:

           OFFICER MARSICANO: Where are you coming
           from?

           [DEFENDANT]: From New Jersey.

           OFFICER MARSICANO: Where?

           [DEFENDANT]: (Indiscernible)

           OFFICER MARSICANO: Do you know how long
           you've been here, sir?

           [DEFENDANT]: What, here?

           OFFICER MARSICANO: Yeah.

           [DEFENDANT]: At this place?

           OFFICER MARSICANO: Yes, at this place.

           [DEFENDANT]: Probably from, I don't know. I was
           (indiscernible).

           OFFICER MARSICANO: Do you have a reason why
           you're passed out in your vehicle for an extended period
           of time in front of the [convenience store]?

           [DEFENDANT]: Well, no, I don't want to say because,
           you know, I (indiscernible) that, you know, I was going
           through, obviously just like looking at it, going through

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                                      4
            a couple hours because I'm like I was going to where it
            needs to be. [sic]

                   ....

            OFFICER MARSICANO: How much have you had to
            drink?

            [DEFENDANT]: Not much at all.

            OFFICER MARSICANO: How much is not that much?

            [DEFENDANT]: Really just a, maybe two hours okay
            with everything. [sic]

            OFFICER MARSICANO: How much alcohol did you
            have to drink tonight, sir?

            [DEFENDANT]: (No Audible Response).

Following this exchange, Marsicano stepped away from defendant for about

three minutes, then asked him to step out of his vehicle.

      By that time, DeRosa had arrived at the scene. DeRosa gave defendant a

horizontal gaze nystagmus (HGN) test. Marsicano then had defendant complete

field sobriety tests, which defendant failed. This, coupled with Marsicano's

prior observations, led Marsicano to conclude defendant was intoxicated and his

ability to operate a vehicle was impaired.      DeRosa confirmed Marsicano's

observations of defendant that took place after his arrival.




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                                        5
      Defendant was taken to the police station and the Alcotest was

administered, resulting in a .15 BAC. Defendant was charged with DWI and

reckless driving.

      Defendant's sole witness was Joseph Tafuni, a legal consultant

specializing in DWI cases with twenty-eight years of service with the New

Jersey State Police. Tafuni testified as an expert and challenged the field

sobriety tests performed by Marsicano, the administration of the Alcotest, the

Alcotest machine's methods and maintenance, and the accuracy of Alcotest's

result. In rebuttal, the State called Alcott, who disputed the entirety of Tafuni's

testimony.

      The municipal court found defendant guilty of DWI but not guilty for

reckless driving. In its oral decision, the court credited Marsicano's testimony,

the MVR video, and the Alcotest results as proof beyond a reasonable doubt that

defendant was legally intoxicated, and he had the intent to operate his car

considering it was parked with the engine running. The court specifically noted

Marsicano had to rouse defendant, the difficulty defendant had in turning off his

car and getting out his documents, defendant's physical and speech

characteristics, and the field sobriety tests results. The court imposed minimum

fines and penalties for a second DWI offense.


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                                        6
      Following trial de novo argument, the Law Division judge issued an order

and oral decision affirming defendant's DWI conviction. The judge's decision

recognized defendant challenged "every critical aspect of the State's case . . ."

including, ". . . the issue of operation, more specifically that [the State was] not

able to establish the nexus between operation and the defendant's alleged

intoxication." The judge rejected defendant's contentions the State failed to

prove intoxication based on the inadequacies of the field sobriety tests, the

required twenty-minute observation before administering the Alcotest, and the

BAC test results. Weighing the video and corresponding transcript, the judge

found defendant had the intent to operate his car while intoxicated stating:

            In this instance . . . defendant was found in the driver's
            seat of a running vehicle in a [convenience store]
            parking lot at approximately 4 a.m. . . . [D]efendant
            was asleep behind the wheel of the vehicle and had to
            be woken by the officer. The officer had some
            difficulty in rousing . . . defendant.

            As noted by the results of the [video footage] . . .
            defendant's vehicle was, in fact, running. You could
            hear that on the officer's mic. You could also see that
            there was exhaust visibly emanating from the tailpipe.
            And the engine motor again was picked up on the
            officer's mic.

            So[,] the [c]ourt finds that there's no doubt that there
            was operation of the vehicle at the time that the officer
            observed it.


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                                         7
The judge also pointed to the fact defendant restarted the car after being told by

Marsicano to turn the car off.      The judge concluded by stating that the

combination of the officers' testimony and the video supported the municipal

court's findings. The judge imposed the same sentence as the municipal court.

Defendant was granted a stay of sentence pending appeal to this court.

      Defendant appeals, raising a single point for our consideration:

            THE STATE DID NOT PROVE, BEYOND A
            REASONABLE DOUBT, THAT [DEFENDANT]
            OPERATED A MOTOR VEHICLE WHILE UNDER
            THE INFLUENCE IN VIOLATION OF, AND
            REQUIRED BY N.J.S.[A.] 39:4-50(A), OR
            ASSUMING ARGUENDO THAT THE STATE
            PROVED THE ELEMENT OF OPERATION, THE
            STATE DID NOT PROVE, BEYOND A
            REASONABLE DOUBT, A NEXUS BETWEEN THE
            TIME OF OPERATION AND THE BREATH TESTS
            OF JEDRA'S INTOXICATED CONDITION, A
            REQUISITE ELEMENT OF A DWI OFFENSE.

                                        II

      On appeal from a municipal court to the Law Division, the review is de

novo on the record. R. 3:23-8(a)(2). The Law Division judge must make

independent findings of fact and conclusions of law but defers to the municipal

court's credibility findings. State v. Robertson, 228 N.J. 138, 147, (2017).

      Our assessment of the Law Division judge's factual findings is limited to

whether the conclusions "could reasonably have been reached on sufficient

                                                                          A-1154-18T1
                                        8
credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162

(1964). Unlike the Law Division, which conducts a trial de novo on the record,

Rule 3:23-8(a), we do not independently assess the evidence. State v. Locurto,

157 N.J. 463, 471 (1999). The rule of deference is more compelling where, such

as here, the municipal and Law Division judges made concurrent findings. Id.

at 474.      "Under the two-court rule, appellate courts ordinarily should 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."     Ibid. (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

"Therefore, appellate review of the factual and credibility findings of the

municipal court and the Law Division 'is exceedingly narrow.'" State v. Reece,

222 N.J. 154, 167 (2015) (quoting Locurto, 157 N.J. at 470).

      We, however, owe no deference to the trial judge's legal conclusions,

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)

(citing State v. Brown, 118 N.J. 595, 604 (1990)), and exercise plenary review

of the trial court's legal conclusions that flow from established facts, State v.

Handy, 206 N.J. 39, 45 (2011).

          "[A] person who operates a motor vehicle while under the influence of

intoxicating liquor . . . or operates a motor vehicle with a blood alcohol


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                                        9
concentration of 0.08% or more by weight of alcohol in the defendant's blood"

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

      A defendant need not be seen driving a vehicle in order to be convicted of

DWI. "Operation may be proved by any direct or circumstantial evidence – as

long as it is competent and meets the requisite standards of proof." State v.

George, 257 N.J. Super. 493, 497 (App. Div. 1992). "The vehicle's operating

condition combined with the defendant's presence behind the steering wheel

permits the logical conclusion of an intent to drive." Ibid.

      In State v. Sweeney, 40 N.J. 359, 360-61 (1963), our Supreme Court held

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 and

39:4-50.1, 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. In this case, the trial court

could clearly infer such intent from the evidence.




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                                       10
      For example, in George this court found the defendant had an intent to

operate his idling truck parked in an empty parking lot at 11:45 p.m. with the

headlights and windshield defroster on while he was in the driver's seat talking

to a woman pedestrian. 257 N.J. Super at 497.

      Based on the principles governing our review and the noted case law, we

are satisfied defendant is guilty of DWI because there is sufficient, credible

evidence present in the record that he had the intent to operate his car.

      In the early hours of the morning, defendant was sleeping in the driver's

seat of his vehicle, with the engine running, parked at a convenience store.

Defendant smelled of alcohol, had difficulty responding to the officer's request

to turn off his car engine, his speech was slow and slurred, his eyes were watery,

he failed the field sobriety tests, and his BAC was above the legal limit. The

totality of those circumstances supports the judge's determination that defendant

was guilty of DWI.

      To the extent we have not addressed any of defendant's arguments, it is

because they lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

      Affirmed. The stay of defendant's sentence shall expire in thirty days.




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