SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3979-18

STATE OF NEW JERSEY,

Plaintiff-Respondent, 

v.

DENNIS J. RUFFIN, 

Defendant-Appellant.

_________________________

Submitted November 16, 2020 – Decided

Before Judges Rothstadt and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Municipal Appeal No. 18-51.

Eldridge Hawkins, attorney for appellant.

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (Ian C. Kennedy, Assistant Prosecutor, of 

counsel and on the brief). 

PER CURIAM

Defendant, Dennis J. Ruffin, appeals from his convictions for driving 

while under the influence (DUI) of a narcotic, hallucinogenic, or habitNOT 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.

March 8, 2021
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producing drug, N.J.S.A. 39:4-50, and failure to voluntarily turn over a 

controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(c).1 In June 2018, 

defendant was tried in municipal court over the course of four days and found 

guilty of both offenses. In a trial de novo on the record in the Law Division, 

Judge Christopher Kazlau also found defendant guilty of both offenses and on 

April 29, 2019 rendered a twenty-nine-page written opinion. We affirm 

defendant's convictions substantially for the reasons set forth in Judge Kazlau's 

thorough and thoughtful opinion. 

I.

The following facts were adduced at the municipal court trial. In the 

afternoon hours of July 2, 2017, Ridgewood police responded to a 9-1-1 call that 

a black SUV was stationary in the roadway near an intersection, forcing other 

vehicles to change lanes to navigate around it. The caller identified herself to 

the operator and reported that she had observed the stationary SUV for 

approximately three minutes. When she finally drove past it, she saw a bald 

1 Defendant was initially charged by the Ridgewood Police Department with 

third-degree unlawful possession of cocaine, N.J.S.A. 2C:35-10(a)(1). The day 

after the arrest, the Bergen County Prosecutor's Office downgraded the thirddegree charge to the disorderly persons offense of failure to voluntary turn over 

CDS. 
3

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man in the driver's seat with his head hanging down, not moving. She called 

9-1-1 because she believed the man might be in need of medical attention. 

Officer Zachary Knudson was dispatched to investigate. After patrolling 

the area for approximately fifteen minutes, he saw a black Jeep Grand Cherokee 

in a parking lot near the intersection. Officer Knudson approached the vehicle 

and observed an African American man sitting in the driver's seat in a semiupright position. The window of the parked SUV was already down. The officer 

did not use his patrol vehicle to block the parked SUV, nor did he order 

defendant to step out of the vehicle. 

Officer Knudson engaged defendant in conversation, advising him that he 

was responding to a report of an African American man asleep while stopped at 

a traffic light.2 Defendant acknowledged that it was indeed his vehicle that had 

been stationary in the roadway minutes earlier. The officer testified that 

defendant explained that, 

he was not sleeping, but he had his head down thinking 

at the traffic light. And the reason for that was because 

he was – he had brought a friend of his up here for a job 

interview. And when they had finished the interview 

they were going home together in separate vehicles, and 

she left him. And Mr. Ruffin stated that he was upset 

2 Defendant disputes that the 9-1-1 caller mentioned the race of the man who 

appeared to be asleep at the wheel of the black SUV. 
4

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for that reason, and he was lost. And he had his head 

down at the traffic light thinking about that.

Officer Knudson carefully observed defendant's physical appearance and 

demeanor during their conversation. He testified that defendant was "upset, 

lethargic and sleeping, his sentences tapered off toward the end, he was unable 

to complete sentences, and he was having rambling thoughts." Another 

Ridgewood officer arrived at the scene and made similar observations, 

describing defendant's slow speech, an inability to answer questions, and 

bloodshot, watery eyes. Both officers were confused by defendant's explanation 

for stopping at the intersection, noting that his story "was dragging on[,]" with 

"no rhyme or reason to it." The officers determined from defendant's appearance 

and demeanor that he could not safely operate a vehicle, though they were not 

yet certain whether this was due to a medical condition or intoxication. 

A third officer, Lieutenant Brian Pullman, arrived at the scene and ordered 

defendant to step out of the SUV. Lieutenant Pullman observed defendant 

swaying from side to side and having difficulty standing. Defendant disclosed 

that he had medical problems involving his heart and lungs and that he took two 

prescribed medications to manage those conditions. 

Lieutenant Pullman administered field sobriety tests after determining that 

defendant did not have a physical disability that would impact his performance. 
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Lieutenant Pullman first administered the horizontal gaze nystagmus (HGN) 

test. That test indicated the presence of a depressant in defendant's system. 

Lieutenant Pullman next administered the walk-and-turn test. Defendant lost 

his balance, pausing and not turning around. Lieutenant Pullman then 

administered the one-leg-stand test. Defendant performed poorly even after 

Lieutenant Pullman allowed him a second attempt. Lieutenant Pullman 

concluded from the battery of tests that defendant was impaired. 

Defendant was placed under arrest for DUI. In the ensuing search of his 

person, police found a glassine bag inside defendant's wallet that contained a 

small white rock of suspected crack cocaine. Defendant later admitted the bag 

contained crack, which was confirmed by a laboratory test conducted by the 

New Jersey State Police. 

Defendant was advised of and waived his Miranda rights.3 At the police 

station, a Drug Recognition Expert (DRE), Sergeant John Chuck, performed a 

drug recognition examination. Sergeant Chuck testified that defendant exhibited 

poor coordination, had difficulty keeping his body in a normal position, and 

trouble completing his thought processes in response to questions. Sergeant 

Chuck repeated the walk-and-turn and one-leg-stand tests that had been 

3 Miranda v. Arizona, 384 U.S. 436 (1966). 
6

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administered before defendant was arrested. The sergeant also administered the 

Romberg balance test and the finger-to-nose test. He next examined defendant's 

pupil size and nasal cavity. The latter examination revealed the presence of 

crystals on defendant's nose hairs. Sergeant Chuck also noted defendant's 

flaccid muscle tone. 

Sergeant Chuck asked defendant if he had consumed any other drugs 

besides the two prescribed medications that he had previously disclosed. 

Defendant admitted he had ingested heroin. Defendant signed a consent form 

and gave a urine sample. Subsequent analysis of defendant's urine revealed the 

presence of cocaine, codeine, morphine, 06-monoacetylmorphine, fentanyl, and 

alprazolam. 

Based on this evidence, the municipal judge found defendant guilty of 

both charged offenses and rendered an oral decision on July 12, 2018. 

Defendant was sentenced on the DUI conviction to a suspension of driving 

privileges for seven months, twelve hours at an intoxicated driver resource 

center, and $689 in fines and penalties. On the disorderly persons conviction 

for failing to turn over the crack cocaine to law enforcement authorities, the 

municipal judge imposed a concurrent six-month suspension of driving 

privileges and $1058 in fines and penalties. Defendant appealed the municipal 
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court convictions to the Law Division for de novo review. As we have noted, 

after reviewing the record and hearing oral argument, Judge Kazlau found 

defendant guilty of both offenses and imposed the same sentence.

Defendant raises the following arguments for our consideration:

POINT I:

LAW ENFORCEMENT'S INITIAL INTERACTION 

WITH MR. RUFFIN WAS UNCONSTITUTIONAL 

AND [THEY] DID NOT HAVE PROBABLE CAUSE 

TO ARREST HIM ON DWI, THEREBY ALLOWING 

THIS COURT TO CONCLUDE THAT ALL 

EVIDENCE OBTAINED THEREAFTER MUST BE 

SUPPRESSED AS A RESULT OF THE FRUIT OF 

THE POISONOUS TREE DOCTRINE 

POINT II:

[DEFENDANT'S] CASE MUST BE DISMISSED 

BECAUSE THE STATE NEVER MADE AN 

OPENING STATEMENT IN THE MUNICIPAL 

COURT TRIAL OR THE SUPERIOR COURT TRIAL 

AS REQUIRED PURSUANT TO R. 1:7-1 

POINT III:

LAW ENFORCEMENT HAD NO PROBABLE 

CAUSE TO ARREST MR. RUFFIN FOR DWI 

POINT IV:

THE EVIDENCE ADDUCED AT TRIAL 

DEMONSTRATED THAT MR. RUFFIN WAS NOT 

GUILTY OF DRIVING WHILE UNDER THE 

INFLUENCE OF A NARCOTIC, 

HALLUCINOGENIC, OR HABIT-PRODUCING 

DRUG BEYOND A REASONABLE DOUBT 

POINT V:
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MR. RUFFIN IS NOT GUILTY OF FAILING TO 

TURN OVER CDS TO LAW ENFORCEMENT AS 

SAME IS THE FRUIT OF THE POISONOUS TREE 

POINT VI:

THE STATE VIOLATED R. 1:7-1 BY NOT MAKING 

AN OPENING STATEMENT AT THE MUNICIPAL 

COURT TRIAL AND ALSO AT THE SUPERIOR 

COURT DE NOVO TRIAL 

a. LAW ENFORCEMENT HAD NO PROBABLE 

CAUSE TO ARREST MR. RUFFIN ON 

SUSPICION OF DWI

POINT VII:

THE INITIAL ENCOUNTER BETWEEN LAW 

ENFORCEMENT AND MR. RUFFIN WAS NOT 

LAWFUL PURSUANT TO THE COMMUNITY 

CARETAKING DOCTRINE 

POINT VIII:

LAW ENFORCEMENT HAD NO PROBABLE 

CAUSE TO ARREST MR. RUFFIN ON SUSPICION 

OF DWI, AND THERE WAS INSUFFICIENT 

EVIDENCE TO PROVE BEYOND A REASONABLE 

DOUBT THAT HE WAS GUILTY OF DWI 

a. LAW ENFORCEMENT HAD NO PROBABLE 

CAUSE TO ARREST MR. RUFFIN ON 

SUSPICION OF DWI

b. THE EVIDENCE ESTABLISHES BEYOND A 

REASONABLE DOUBT THAT MR. RUFFIN 

WAS IMPROPERLY TARGETED AS A BLACK 

MALE AND THUSLY UNCONSTITUTIONALLY 

STOPPED 

POINT IX:

THE EVIDENCE ESTABLISHES BEYOND A 

REASONABLE DOUBT THAT MR. RUFFIN WAS 

NOT GUILTY OF FAILING TO TURN OVER CDS 
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TO LAW ENFORCEMENT AS THE STOP AND 

SEARCH WERE CONTRARY TO THE UNITED 

STATES CONSTITUTION AMENDMENTS IV AND 

V 

II.

Because we affirm substantially for the reasons explained in Judge 

Kazlau's comprehensive written opinion, we need not re-address defendant's 

arguments at length. We first consider defendant's contention that the police 

violated his constitutional right to be free from unreasonable searches and 

seizures. Defendant argues that the police unlawfully initiated an investigative 

detention in response to the 9-1-1 call. He also contends that the officers never 

developed probable cause to believe he committed a DUI offense and 

accordingly did not have lawful authority to arrest him or conduct the search 

incident thereto that revealed the crack cocaine found on his person. 

We note as a threshold matter that defendant never made a pretrial motion 

to suppress. Rather, defense counsel first raised these Fourth Amendment 

claims in his closing argument at the conclusion of the four-day trial. Rule 7:5-

2(b), which governs Fourth Amendment motions practice in the municipal court, 

provides that if a search is made without a warrant, "a brief stating the facts and 

arguments in support of the motion shall be submitted with the notice of 

motion." So far as the record shows, defendant never submitted a brief to the 
10 A-3979-18

trial court. The rule also provides that, "[a]ll motions to suppress shall be heard 

before the start of the trial." Clearly, defense counsel did not comply with these 

procedures by first raising his Fourth Amendment claims in his closing 

arguments after the State had rested. 

Rule 7:5-2(d) expressly provides that "[u]nless otherwise ordered by the 

court for good cause, defendant's failure to make a pretrial motion to the 

municipal court pursuant to this rule shall constitute a waiver of any objection 

during trial to the admission of the evidence on the ground that the evidence was 

unlawfully obtained." We nonetheless choose to address defendant's Fourth 

Amendment arguments on their merits. 

We begin our analysis by noting that Officer Knudson did not pull over 

defendant's vehicle, which was already parked when the officer approached it. 

The officer also did not use his patrol vehicle to block in defendant's car. Cf.

State v. Rosario, 229 N.J. 263, 276 (2017) (holding that defendant was subjected 

to an investigative detention, and not just a field inquiry, when the officer used 

his patrol vehicle to block in the defendant's car that was lawfully parked in 

front of her house). Nor did Officer Knudson order defendant to exit his vehicle, 

order him to produce identification credentials, or make any other demands. 

Rather, Officer Knudson merely engaged defendant in conversation through the 
11 A-3979-18

driver-side window that was already open. Specifically, the officer asked 

defendant if he had any information about a driver who was reported to be asleep 

at the wheel while in the roadway at the nearby traffic light. 

In these circumstances, we believe the police-citizen encounter began as 

a field inquiry that could be conducted without grounds for suspicion. See State 

v. Maryland, 167 N.J. 471, 483–84 (2001) (holding that an officer has not seized 

a person under the Fourth Amendment if his questions are put in a conversational 

manner that is not overbearing or harassing in nature and does not make 

demands or issue orders). See also State v. Nishina, 175 N.J. 502, 510 (2001) 

(noting a police-citizen encounter constitutes a permissible field inquiry when 

an officer questions a citizen in a conversational manner that is not harassing, 

overbearing, or accusatory in nature). 

Furthermore, as Judge Kazlau correctly noted, this encounter falls under

the community caretaking doctrine. In State v. Scriven, our Supreme Court held 

that "[i]n their community-caretaker role, police officers, who act in an 

objectively reasonable manner, may check on the welfare or safety of a citizen 

who appears in need of help . . . without securing a warrant or offending the 

Constitution." 226 N.J. 20, 38 (2016). The Court further held, "[p]olice officers 

who have an objectively reasonable basis to believe that a driver may be 
12 A-3979-18

impaired or suffering a medical emergency may stop the vehicle for the purpose 

of making a welfare check and rendering aid, if necessary." 4 Id. at 39. The 

vehicle need not be in motion for the community caretaking doctrine to apply. 

See State v. Drummond, 305 N.J. Super. 84, 89–90 (App. Div. 1997) (applying 

the community caretaking doctrine to justify speaking with occupants of a 

darkened automobile parked near a closed car wash at night). 

In the present instance, there was an objectively reasonable basis for 

Officer Knudson to exercise the community caretaking function, first to 

determine whether defendant's vehicle was the SUV that had been stationary in 

the roadway, and then to determine whether defendant was in need of medical 

assistance. See State v. Washington, 296 N.J. Super. 569, 572 (App. Div. 1997) 

(holding the objective reasonableness of the exercise of the community 

caretaking function "is measured by the dynamics or totality of the 

circumstances from the perspective of the officer on duty at the time."). We 

emphasize that Officer Knudson was responding to a citizen's 9-1-1 report of a 

driver who appeared to be unconscious and in need of medical attention. 

4 We reiterate that Officer Knudson did not "stop" defendant's vehicle, which 

was already parked when the officer arrived at the scene. But even if the parking 

lot encounter at the outset were deemed to be an investigative detention, Officer 

Knudson clearly had an objectively reasonable basis to justify a welfare check 

under the rule announced in Scriven. 
13 A-3979-18

After defendant confirmed that he was the person described in the 9-1-1 

call, Officer Knudson continued to investigate the circumstances of defendant's 

physical condition, but still did not issue commands or otherwise suggest to 

defendant that he was not free to leave. It was not until Lieutenant Pullman 

arrived and ordered defendant to exit the SUV that the encounter escalated to an 

investigative detention requiring reasonable and articulable suspicion to believe 

that defendant had committed a motor vehicle offense. By this point, based on 

defendant's responses to questions and his physical appearance, police had 

ample basis to suspect (1) that he was impaired, and (2) that he had minutes 

earlier operated the vehicle by driving it from the public road to the parking lot. 

When defendant stepped out of the SUV, he had trouble standing and 

continued to exhibit signs of intoxication. Lieutenant Pullman thus had an 

objectively reasonable basis to administer field sobriety tests as part of the 

investigative detention. When defendant failed those tests, the officers had 

probable cause to arrest defendant for DUI and to transport him to the police 

station for further testing. See State v. Bernokeits, 423 N.J. Super. 365, 375 

(App. Div. 2011) (recognizing that the results of field sobriety testing can be 

used to establish probable cause to arrest). 
14 A-3979-18

Once arrested, and before transporting defendant to the station, police 

lawfully conducted a search of defendant's person incident to that arrest, 

revealing the crack cocaine that had been concealed in defendant's wallet.5 State 

v. Dangerfield, 171 N.J. 446, 462–63 (2002) (affirming authority of police to 

conduct an automatic search incident to a lawful arrest regardless of the nature 

or seriousness of the offense for which the defendant is lawfully arrested). 

In sum, each step undertaken by the police in the unfolding sequence of 

events was objectively reasonable and lawful based on the information available 

to them before each decision. See Scriven, 226 N.J. at 38. The police-citizen 

encounter was lawfully initiated in the exercise of the community-caretaking 

responsibility of police to respond to the 9-1-1 call of a traffic hazard and a 

person who was possibly in medical distress. What started as a field inquiry to 

investigate the 9-1-1 report escalated to a lawful investigative detention after 

the officers' initial inquiries and observations established reasonable and 

articulable suspicion to believe that defendant had committed a traffic offense, 

5

Judge Kazlau's opinion suggests the white rock of crack had been found in an 

inventory of defendant's vehicle. There is no testimony in the trial record, 

however, that defendant's wallet was recovered from defendant's vehicle. We 

note that because defendant failed to make a pretrial motion to suppress, there 

was no occasion to take testimony that focused on the manner in which 

defendant was searched incident to his arrest before he was transported to the 

police station. 
15 A-3979-18

thus justifying the field sobriety tests. The officers' suspicion that defendant 

had committed a DUI offense ripened into probable cause when defendant failed 

those tests, justifying an arrest and search incident thereto that led to the 

discovery of the CDS on defendant's person. 

III.

We next address defendant's claim that he had been improperly targeted 

by police based on his race. We start by noting that defendant never raised this 

issue in a pretrial motion even though he seeks to suppress evidence as a result 

of the alleged selective enforcement. See Rule 7:5-2. We nonetheless address 

defendant's equal protection argument on the merits in recognition of the 

seminal importance of the rule that prohibits racial targeting by police.

Importantly, defendant never presented evidence to support his racial 

profiling claim. In State v. Segars, the Supreme Court announced a "burden 

shifting template" in racial targeting cases. 172 N.J. 481, 495–96 (2002). A 

defendant advancing a selective enforcement claim under the Fourteenth 

Amendment equal protection clause has the ultimate burden of proving by a 

preponderance of the evidence that the police acted with a discriminatory 
16 A-3979-18

purpose.6 Id. at 496. In addition to bearing the ultimate burden of persuasion, 

a defendant bears the preliminary obligation of establishing a prima facie case

of discrimination, that is, one in which the evidence, including any favorable 

inferences that can be drawn therefrom, could sustain a judgment. Id. at 494. If 

a defendant establishes a prima facie case of racial targeting, a burden of 

production shifts to the State to articulate a race-neutral basis for the police 

action. Ibid. The State's burden of production under this analytical template 

"has been described as so light as to be 'little more than a formality.' It is met 

whether or not the evidence produced is found to be persuasive." Ibid. (quoting 

Mogull v. CB Commercial Real Estate Grp., 162 N.J. 449, 469 (2000)). 

However, the State cannot remain silent once a prima facie case has been 

established because the prima facie case in effect creates a presumption that 

police unlawfully discriminated. Id. at 495.

In this instance, defendant has failed to establish a prima facie case of 

racial targeting. Even when given the benefit of all reasonable inferences, 

nothing in the record before us supports defendant's speculation that Officer 

Knudson singled him out for suspicion based on a discriminatory purpose. But 

6 We add that the prohibition against selective enforcement applies to field 

inquires and not just to investigative detentions, arrests, and searches. See State 

v. Maryland, 167 N.J. 471 (2001).
17 A-3979-18

even were we to assume for purposes of argument that a burden of production 

shifted to the State, the record clearly establishes a race-neutral explanation: the 

officer was responding to the information that had been given to him by the 

dispatcher. It therefore is clear that the officer's encounter with defendant under 

the community caretaking doctrine was not "a pretext to conduct an otherwise 

unlawful warrantless search." State v. Bogan, 200 N.J. 61, 67 (2009). Indeed, 

we believe Officer Knudson would have been derelict in his duties had he not 

looked for a vehicle in the area matching the SUV described in the 9-1-1 call. 

It was appropriate under both the Fourth Amendment and the Fourteenth 

Amendment equal protection clause for Officer Knudson to approach 

defendant's SUV to investigate whether this was the vehicle in the roadway 

whose driver appeared to be unconscious minutes earlier. 

We add that the dispatch to Officer Knudson described the occupant of 

the black SUV as an African American male. As we have noted, defendant 

disputes that the 9-1-1 caller mentioned the vehicle occupant's race. The caller 

testified at trial that she did not recall providing the 9-1-1 operator with a 

description of the occupant's race, and a transcript of the 9-1-1 call is not part of 

the record before us. The State also acknowledged this discrepancy. But even 

assuming a mistake was made either by the 9-1-1 operator or the police 
18 A-3979-18

dispatcher and there was no basis to include a racial description in the be-onthe-lookout dispatch provided to Office Knudson, we do not believe it is 

reasonable to infer for purposes of the burden-shifting template that either the 

9-1-1 operator or dispatcher engaged in purposeful discrimination. We therefore 

conclude that defendant has failed to establish that he was the victim of racial 

targeting. 

IV.

Defendant contends that his convictions must be vacated because the 

prosecutor never made an opening statement at the municipal court trial or at the 

Law Division trial de novo on the record. Defendant relies on Rule 1:7-1, which 

provides, "[b]efore any evidence is offered at trial, the State in a criminal action 

or the plaintiff in a civil action, unless otherwise provided in the pretrial order, 

shall make an opening statement. A defendant who chooses to make an opening 

statement shall do so immediately thereafter." (emphasis added). Defendant 

cites no authority, however, for the proposition that this Part I rule of general 

application requires a new trial when the prosecutor decides not to make an 

opening statement at a municipal court bench trial and there is no 

contemporaneous objection from defense counsel. Instead of objecting in a 

timely manner, defendant's attorney raised the issue after the State presented its 
19 A-3979-18

first witness: "[j]udge it just dawned on me. The prosecution I don’t think you 

ever made an opening statement. . . . since she's never made an opening 

statement, I guess I'll just simply . . . move to dismiss the entire case[.]"

Looking to the purpose undergirding Rule 1:7-1, we believe it serves a 

significantly reduced function in the context of a municipal court bench trial, 

and even less function, if any, at a trial de novo on the record in the Law 

Division. In State v. Portock, we remarked that a prosecutor's opening statement 

"should be part of orderly trial procedure provided for the benefit of the jury, 

not the defendant." 205 N.J. Super. 499, 505 (App. Div. 1985) (emphasis 

added). In State v. Walden, we further explained that a prosecutor's opening 

statement serves to provide a roadmap of the State's case. 370 N.J. Super. 549, 

558 (App. Div. 2004). As Judge Kazlau aptly noted when he rejected 

defendant's argument, while a lay jury requires such roadmap, judges may not. 

Judge Kazlau explained that judges "are trained in the intricacies of the law, 

which would not necessarily warrant the need for an opening statement[.]" We

agree. Indeed, if either the municipal court judge or Judge Kazlau on de novo 

review believed that an opening statement by the prosecutor was needed to help 

them better understand the nature of the State's case, either or both judges 

presumably would have required an opening statement pursuant to Rule 1:7-1. 
20 A-3979-18

We add in this regard the rule explicitly recognizes that an opening statement is 

not required if "otherwise provided in the pretrial order." Here, there was no 

pretrial order. But we interpret this exemption to mean, in the context of a bench 

trial, that the judge sitting as trier-of-fact may dispense with an opening 

statement by the prosecutor.

Defendant claims on appeal that he "was unable to prepare a defense in 

accordance with the State's opening statement[.]" As we have noted, opening 

statements are for the benefit of the trier of fact, not opposing counsel. See

Portock, 205 N.J. Super. at 505. We presume that defense counsel was ready 

for trial based on his review of discovery and other pretrial preparation. If 

counsel was not prepared to mount a defense at trial, it was his obligation to 

move for an adjournment rather than hope to learn the nature of the State's case 

from the prosecutor's opening statement. We therefore reject defendant's 

contention on appeal that his counsel was unable to prepare a defense because 

the prosecutor did not summarize the State's case in an opening statement. 

Judge Kazlau ultimately determined that defendant suffered no prejudice. 

We agree and reiterate that counsel did not object contemporaneously to the 

State offering evidence at trial without first making an opening statement. 

Rather, counsel laid back and waited to object in the hope of securing a 
21 A-3979-18

dismissal. Even if defendant objected contemporaneously, summary dismissal 

would not be an appropriate remedy. At most, the prosecutor would have been 

instructed to make an opening statement in accordance with Rule 1:7-1. 

In these circumstances, we embrace Judge Kazlau's conclusion that "[t]he 

fact that the State omitted making an opening statement does not warrant the 

[c]ourt to remand the proceedings back to the municipal court for a new trial or 

vacate [defendant's] conviction." Even assuming for purposes of argument that 

the trial court committed error by not sua sponte ordering the prosecutor to make 

an opening statement under Rule1:7-1, any such purported error was not clearly 

capable of producing an unjust result. R. 2:10-2.

V.

We next address defendant's contention that the State failed to prove the 

charged offenses beyond a reasonable doubt. In view of the limited scope of our 

review, this contention does not require extensive discussion. An appellate court 

does not review the record "from the point of view of how it would decide the 

matter if it were the court of first instance." State v. Johnson, 42 N.J. 146, 161

(1964). Rather, "[t]he aim of the review at the outset is . . . to determine whether 

the findings made could reasonably have been reached on sufficient credible 

evidence present in the record." Id. at 162. See also State v. Barone, 147 N.J. 
22 A-3979-18

599, 615 (1997) (holding that an appellate court is not to "weigh the evidence, 

assess the credibility of witnesses, or make conclusions about the evidence."). 

Accordingly, we defer to "those findings of the trial judge which are 

substantially influenced by his opportunity to hear and see the witnesses and 

have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, 42 

N.J. at 161. Furthermore, "the rule of deference is more compelling where . . . 

two lower courts have entered concurrent judgments on purely factual issues." 

State v. Locurto, 157 N.J. 463, 474 (1999). In following this "two-court rule," 

we "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.

Applying this deferential standard of review, we conclude the convictions 

are supported by ample evidence adduced by the State over the course of the 

four-day trial. We add that defendant argues the State failed to prove that he 

was operating the vehicle when Officer Knudson approached. Defendant 

contends that he was "minding his business asleep in a parking lot with the car 

off." In this instance, we need not rely on cases that broadly define what 

constitutes operation of a vehicle for purposes of the DUI statute. See, e.g., 

State v. Daly, 64 N.J. 122, 125 (1973) (defendant properly convicted of DUI 
23 A-3979-18

while sitting in his car with the engine on). Defendant admitted to Officer 

Knudson that he was the driver who had been stationary in the roadway minutes 

before the officer arrived at the parking lot in response to the 9-1-1 call. The 

evidence thus circumstantially—but compellingly—establishes that defendant 

had driven his SUV from the intersection to the parking lot. So too the evidence 

adduced at trial clearly proved that the small white rock found in defendant's 

wallet was crack cocaine. Defendant admitted to police it was cocaine, which 

was verified by laboratory testing. 

To the extent we have not addressed them, any remaining arguments made 

by defendant lack sufficient merit to warrant discussion in this opinion. R. 2:11-

3(e)(2).

Affirmed.