STATE OF NEW JERSEY VS. MARJAN KASAPINOV (6231, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3288-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARJAN KASAPINOV,
Defendant-Appellant.
_________________________
Submitted December 1, 2021 – Decided December 10, 2021
Before Judges Whipple and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Municipal Appeal No. 6231.
Charles C. Festa, III, attorney for appellant.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Marjan Kasapinov appeals from the Law Division's order
entered after a trial de novo on the record. The Law Division found defendant
guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). Defendant
contends the State did not prove operation of the vehicle. We reject this
argument because it is inconsistent with well-established precedent and affirm.
The parties stipulated to the following facts except operation of the
vehicle. While on patrol on April 15, 2019, Detective Richard DiZenzo of the
Woodland Park Police Department responded to a motor vehicle accident at
12:33 a.m. and arrived at the scene in about one minute. DiZenzo observed a
1998 Toyota Corolla that had struck a legally parked vehicle and was blocking
the lane of travel.
The Toyota sustained significant front-end damage. Its engine was still
running. Both front seat airbags had deployed. From the driver's side, DiZenzo
observed a single occupant, later identified as the defendant, "hunched over" in
the driver's seat. Defendant's eyes were glassy, bloodshot, and dilated. There
was blood, minor lacerations, and red marks on defendant's hands. DiZenzo
radioed for medical assistance.
While waiting for the ambulance to arrive, defendant indicated to DiZenzo
that he was okay. While speaking with defendant, DiZenzo noticed defendant's
"speech was slurred, and there was a strong odor of alcoholic beverage
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emanating from his breath." Defendant stated his credentials were in the
vehicle. Defendant was identified after he produced an identification card.
DiZenzo rode with defendant in the ambulance and continued to question
him while en route to the hospital. Defendant identified the license found in the
Toyota as his brother's. Defendant admitted he had been drinking that night.
When asked if he had been drinking, defendant replied, "yes, a little." When
asked how many drinks he had, defendant replied, "if I tell you three, you'll
assume six," as he winked and laughed.
DiZenzo did not observe any other individuals in the area when he arrived
on scene and did not see anyone exit the Toyota while he parked and exited his
police vehicle. The only person besides defendant present at the scene was the
owner of the parked car.
At the hospital, DiZenzo placed defendant under arrest for DWI and
subsequent served him with a complaint-summons for DWI.1 Defendant
consented to having his blood drawn. Defendant suffered a head injury but was
treated and released from the emergency department. When asked whether
someone could come to sign a Potential Liability form, defendant told DiZenzo
1
Defendant was also charged with careless driving, N.J.S.A. 39:4-97, and
driving while suspended, N.J.S.A. 39:3-40. These charges were dismissed on
motion of the State after defendant was found guilty of DWI.
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that no one could be contacted because his brother was out of the country, and
he could not think of anyone else to contact.
DiZenzo determined that the Toyota was registered to defendant's brother,
Ilija Kasapinov. Defendant did not tell DiZenzo before or after he was arrested
that someone else had been driving the Toyota.
After the State rested, defendant moved for an acquittal based on a lack
of evidence. The judge denied the motion, finding enough evidence to conclude,
based on a totality of the circumstances, that DiZenzo had probable cause to
arrest defendant for DWI.
Defendant testified that prior to the accident, he was at a bar from about
9:00 p.m. to 10:00 p.m. to celebrate his birthday with his brother, who resided
with defendant in Paterson, and friends. Defendant testified that his brother
owned the Toyota and drove it that night. Defendant stated that he "drank beer"
and "a couple of shots" before leaving the bar around midnight.
Defendant testified that after leaving the bar, his brother was driving the
car home and defendant was in the passenger seat. His brother lost control of
the vehicle causing defendant to hit his head on the door and the airbags to
deploy. After the crash, his brother suggested they both leave the vehicle, but
when he tried to exit the automobile, defendant was unable to open the right-
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side door due to the damage. When he tried to move to the other side to get out,
he struggled with the deployed air bag, ended up in the driver's seat, and passed
out. Defendant claimed that his brother left the vehicle to find help.
Defendant did not recall any conversations with DiZenzo at the hospital.
When asked if he ever drove Ilija's car and if he drove it the night of the accident,
he said "no" and that he never drove that car. He had his own cars.
Defendant contested operation, contending his brother was driving the
Toyota. He claimed that after his brother retired, he returned to Macedonia later
in April 2018, and was unable to return to speak to the police or testify.
When asked why he did not go to the police and tell them his brother was
driving the Toyota that night, defendant stated: "Because he's my brother, I
wanted to protect him. And uh, why I am, you know, I am sort of the guilty
one." On cross-examination, defendant testified that Ilija left the country ten
days or two weeks after the accident and did not return.
Defendant attempted to clarify that when he told DiZenzo at the hospital
that his brother was out of the country, he was referring to his brother Kiro, who
resides in Macedonia. Defendant noted that Ilija always kept his driver's license,
insurance card, and registration in the glove compartment.
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Following summations, the municipal court judge issued an oral decision
finding defendant guilty of DWI. She recounted the testimony in detail. The
judge found DiZenzo to be credible. She specifically found his testimony that
defendant was found behind the wheel with the motor running to be credible. In
contrast, the municipal court judge found defendant to be "incredible at best,"
was not logical, and did not make sense.
The municipal court judge was not convinced by defendant's claim that he
did not want his brother to be involved at the scene of the accident. She noted:
[Defendant] said he didn’t even know he was under
arrest until he got the tickets in the mail a week to two
weeks later. So[,] if he didn’t even think he was under
arrest, this [c]ourt is hard pressed to believe that he
would not have A, indicated his brother was driving the
vehicle, B, if he had such brotherly love, why he did
not in any instance whatsoever express any concern
about the welfare of his brother, since there was an
accident that cost him such . . . alleged medical trauma.
The judge was also skeptical of defendant's testimony regarding his
attempt to get out through the driver's side, finding it to be " a circuitous []
attempt . . . at pinning the blame on [his] brother, who he showed no concern
whatsoever [for]" while talking to Dizenzo. She found defendant lacked
credibility because he never spoke to the police about not operating the vehicle
on the night of the accident.
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The municipal court judge determined that the State proved operation
beyond a reasonable doubt and found defendant guilty of DWI. Defendant was
sentenced as a fourth DWI offender to a 180-day jail term, a ten-year loss of
driving privileges, one-year interlock ignition device, $1,000 fine, and penalties,
surcharges, and costs.
Defendant appealed his conviction to the Law Division. On de novo
review, the Law Division judge found defendant guilty of DWI, giving "due
regard [to the municipal court judge's] credibility findings as she had the
opportunity to see and hear the witnesses testify." The judge reasoned:
Independently, I find the testimony of Detective
DiZenzo credible. He was knowledgeable and
straightforward. I find the testimony of defendant
incredible. It was illogical, unreasonable, and self-
serving. Defendant was injured as a result of the crash
into a parked vehicle. In his condition, in addition to
drinking alcohol, I do not believe that he crawled from
the passenger's side to the driver’s side with both air
bags being deployed. I don’t believe his statement that
his brother Ilija was driving and ran off afterwards.
I find defendant guilty beyond a reasonable doubt
of operating a motor vehicle . . . while under the
influence of alcohol. At the start of the trial . . . counsel
stipulated that the only issue to be addressed was
operation. Operation may be established by
observation of the defendant in or out of the vehicle
under circumstances indicating that the defendant had
been driving while intoxicated. There is no doubt that
an intoxicated and sleeping defendant behind the wheel
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of a motor vehicle with the engine running is operating
the vehicle within the meaning of N.J.S.A. 39:4-50(a),
even if the vehicle is not observed in motion . . . .
I find that defendant was operating this motor
vehicle [on] April 15, 2019. He was observed by
Detective DiZenzo shortly after the accident, sitting in
the driver's seat with both air bags deployed with the
engine running. No one else was in the vehicle in the
surrounding area except for the owner of the parked car
that was hit. Defendant's statements that he crawled
from the passenger's side to the driver's side while both
air bags were deployed and that his brother drove the
vehicle . . . is unbelievable and not credible.
Detective DiZenzo testified that based upon his
investigation, he concluded that the defendant was
driving the vehicle. There's no doubt in my mind that
he was driving the motor vehicle which caused the
accident. I also find the defendant was intoxicated from
the use of alcohol when he was driving. Defendant had
a strong odor of alcohol coming from his breath when
first observed by Detective DiZenzo, which
strengthened while in the ambulance.
The defendant admitted to drinking beers and two
shots while at Bask Bar. He was driving erratic as he
struck a legally-parked car with enough force to cause
significant front-end damage.
The judge imposed the same sentence as the municipal court judge and
denied defendant's motion to stay the sentence. This appeal followed.
In this appeal, defendant argues:
DEFENDANT'S CONVICTION FOR DRIVING
UNDER THE INFLUENCE SHOULD BE
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REVERSED AND A FINDING OF "NOT GUILTY"
ENTERED AS THE FACTUAL RECORD DOES NOT
SUPPORT THE LAW DIVISION JUDGE'S
DETERMINATION THAT DEFENDANT
OPERATED HIS BROTHER'S VEHICLE OR THAT
HE EVER FORMED A CONSCIOUS INTENTION
TO DO SO.
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
apply the two-judge rule. 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)). Accordingly,
this court's review of the factual and credibility findings of the municipal court
and Law Division judges "is exceedingly narrow." State v. Reece, 222 N.J. 154,
167 (2015) (quoting Locurto, 157 N.J. at 470).
Defendant contends that the factual record did not support the Law
Division judge's determination that defendant was not operating the vehicle
within the meaning of N.J.S.A. 39:4-50(a). We disagree.
A person is deemed to have been driving while intoxicated if that person
"operates a motor vehicle while under the influence of intoxicating liquor,
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narcotic, hallucinogenic or habit-producing drug . . . ." N.J.S.A. 39:4-50(a).
The State does not have to prove actual operation. State v. Ebert, 377 N.J. Super.
1, 10 (App. Div. 2005). "Operation may be proved by any direct or
circumstantial evidence—as long as it is competent and meets the requisite
standards of proof." Id. at 10 (quoting State v. George, 257 N.J. Super. 493, 497
(App. Div. 1992)). Generally, the State can prove operation in three ways: (1)
"actual observation of the defendant driving while intoxicated," (2) "observation
of the defendant in or out of the vehicle under circumstances indicating that the
defendant had been driving while intoxicated," or (3) "by defendant's
admission." Id. at 11 (citations omitted).
As we recently explained in State v. Thompson:
[N.J.S.A. 39:4-50(a)] prohibits "operat[ion]" of a
vehicle while under the influence. "Operation" has
been interpreted broadly, State v. Tischio, 107 N.J. 504,
513-14 (1987); State v. Mulcahy, 107 N.J. 467, 478
(1987); State v. Wright, 107 N.J. 488, 494-503 (1987);
State v. Sweeney, 40 N.J. 359, 360-61 (1963), and
encompasses more than just "driving" a vehicle.
Operation, for example, includes sitting or sleeping in
a vehicle, with the engine running, even when the
vehicle isn't in motion. Indeed, [t]he Supreme Court
has recognized that "operation" may be found from
evidence that would reveal "a defendant's intent to
operate a motor vehicle." Tischio, 107 N.J. at 513.
Thus[,] an intoxicated person could be found guilty of
violating N.J.S.A. 39:4-50(a), when running the engine
without moving the vehicle, as here, or by moving or
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attempting to move the vehicle without running its
engine, see State v. Stiene, 203 N.J. Super. 275, 279
(App. Div. 1985). The Supreme Court has held that an
individual who staggers out of a tavern but is arrested
before he is able to insert a key into his vehicle's
ignition may be convicted of N.J.S.A. 39:4-50(a).
Mulcahy, 107 N.J. at 470, 483. In short, operation not
only includes the circumstances to which we have just
referred but may also be established "by observation of
the defendant in or out of the vehicle under
circumstances indicating that the defendant had been
driving while intoxicated." [Ebert, 377 N.J. Super. at
11]. For example, we sustained a DWI conviction
where the defendant was not even in her vehicle but
instead was looking for her vehicle in a restaurant
parking lot while in an intoxicated state. See id. at 9-
11. There is no doubt that an intoxicated and sleeping
defendant behind the wheel of a motor vehicle with the
engine running is operating the vehicle within the
meaning of N.J.S.A. 39:4-50(a), even if the vehicle was
not observed in motion; it is "the possibility of motion"
that is relevant. Stiene, 203 N.J. Super. at 279.
[462 N.J. Super. 370, 374-75 (App. Div. 2020)
(footnotes omitted), certif. denied, 246 N.J. 214(2021).]
Here, both the Law Division and the municipal court determined that
defendant operated the vehicle while under the influence. The record amply
supports that determination. The record included uncontroverted evidence that
upon his arrival at the accident scene, DiZenzo observed: (1) the Toyota's engine
was still running; (2) defendant was hunched over in the driver's seat with the
airbags deployed; (3) defendant appeared disoriented; (4) defendant's speech
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was slurred and his eyes were glassy, bloodshot, and dilated; (5) defendant's
breath smelled of alcohol; and (6) no other individuals, other than defendant and
the owner of the parked car, were seen at the accident location. Defendant
admitted to DiZenzo that he had been drinking and testified that he had
consumed "beers" and "a couple of shots." He does not contest being under the
influence of alcohol.
Considering the testimony and fully supported factual findings and
credibility determinations, we discern no basis to disturb the Law Division
judge's decision. We are satisfied there is sufficient credible evidence in the
record to substantiate his finding that the State proved defendant operated the
vehicle while intoxicated beyond a reasonable doubt.
Affirmed.
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