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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. GREGORY PATKUS, Defendant–Appellant.

DOCKET NO. A–2148–12T1

    Decided: April 04, 2014

Before Judges Alvarez and Ostrer.Antonio J. Toto, attorney for appellant. Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Following a trial de novo in the Law Division, on January 7, 2013, defendant Gregory Patkus was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4–50.   Judge Mega reimposed the penalties to which defendant had been sentenced in the Township of Springfield municipal court:  a two-year license suspension, one year with an interlock device, appropriate fines and penalties, and a two-day jail term to be served in the intoxicated driver resource center (IDRC).   We affirm.

At the October 12, 2012 municipal trial, Springfield Patrol Officer Frank Cunha testified that on January 13, 2012, at approximately 12:37 in the afternoon, he was dispatched to a retail store parking lot on Route 22 East. Upon arrival, he was directed to defendant's vehicle, a blue Jeep Liberty.   The driver was slumped over the wheel.   The engine was running and the windows were closed.   Defendant “appeared to be passed out,” and had “drool coming from his mouth onto his shirt.”

Cunha knocked on the driver's side window for two or three minutes until defendant awakened.   He appeared confused and told the officer that he wanted to go home.   There were no bars or restaurants that served alcohol within half a mile of this location.   The officer did not observe any alcoholic beverage containers either in the car or in the immediate vicinity of the vehicle.   The officer detected a strong odor of an alcoholic beverage from the inside of the vehicle, defendant's eyes were bloodshot, and he was disoriented.

At the trial, it was stipulated that defendant's blood alcohol content (BAC) was 0.24%, as the only contested issue was operation.   The field test results were also stipulated.   After the State rested, counsel argued that operation had not been proven beyond a reasonable doubt.

The municipal court judge thoroughly reviewed the record before rendering his decision.   Because defendant was found slumped over the steering wheel, fast asleep, his car's engine was running, and he was parked in an area half a mile from the nearest source of alcohol, the municipal judge concluded operation was established by overwhelming circumstantial evidence.   Hence he concluded the circumstantial evidence made it “reasonable to infer that there was indeed operation.”   In his equally cogent decision, Judge Mega reasoned that the circumstantial evidence established beyond a reasonable doubt that defendant drove the vehicle to the location where it was found, thereby establishing operation while under the influence.

Both judges distinguished State v. Daly, 64 N.J. 122 (1973), the case upon which defendant relied.   In that case, the issue was not Daly's past operation, but whether he had the intent to drive.   See id. at 125.   Daly was discovered in a vehicle parked outside a tavern some one hour and twenty minutes after it closed.   See id. at 124–25.   Although the motor was running, Daly explained to the officer that, after the tavern closed, he had been sitting in his car to try to sober up while staying warm.  Ibid. The Court found that the State had failed to prove beyond a reasonable doubt the intent to operate.  Id. at 125.   Both judges here concluded, in contrast to Daly, that the only explanation for defendant's presence in the parking lot was that he drove there while intoxicated.

On appeal, defendant raises the following point for our consideration:



Our role in an appeal such as this one is limited, in that we “consider only the action of the Law Division and not that of the municipal court.”  State v. Oliveri, 336 N.J.Super. 244, 251 (App.Div.2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)).   The Law Division determination is de novo on the record from the municipal court.   R. 3:23–8(a)(2).   We are ordinarily limited to determining whether the Law Division's de novo findings “could reasonably have been reached on sufficient credible evidence present in the record.”  State v. Johnson, 42 N.J. 146, 162 (1964).   In addition, under the two-court rule, only “a very obvious and exceptional showing of error” will support setting aside the Law Division and the municipal court's “concurrent findings of facts.”  State v. Locurto, 157 N.J. 463, 474 (1999).   Nevertheless, our review of purely legal issues is plenary.  State v. Goodman, 415 N.J.Super. 210, 225 (App.Div.2010), certif. denied, 205 N.J. 78 (2011).

In this case, the judge's finding of fact, based on the credible evidence in the record, compels the legal conclusion that the logical explanation of defendant's presence behind the wheel of his vehicle, while drunk, half a mile from the nearest source of alcohol, is that he drove himself there.   All of this is amply supported by the record.   Any explanation other than that defendant drove himself to the scene while intoxicated is improbable.   We do not consider defendant's legal argument to warrant further discussion in a written decision.   R. 2:11–3(e)(2).



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