NOT FOR PUBLICATION

PER CURIAM.

Following a trial de novo in the Law Division, defendant John E. Worsdale was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and failure to exhibit an insurance card, N.J.S.A. 39:3-29. Defendant was sentenced to a seven-month driver's license suspension and ordered to participate in the Intoxicated Driver Resource Center Program for a period of twelve hours. The court also imposed the appropriate fines, assessments, surcharges, and costs.1

In this appeal, defendant challenges the denial of his motion to suppress. Defendant argued before the municipal court judge and the Law Division judge, as he does here, that the police lacked a reasonable and articulable suspicion to approach his car, and lacked probable cause to administer field sobriety tests. He also argued that because there was no evidence he operated or intended to operate his car, the police lacked probable cause to arrest him for DWI. We reject these arguments and affirm.

The record reveals the following facts. At approximately 11:00 p.m. on October 1, 2010, Officer Michael Hoppe of the South Plainfield Police Department was conducting a routine "security check" at a local bar. While driving his patrol car through the bar's parking lot, the officer saw a row of cars parked near a fence. One car "stuck out" to him because the headlights were on. As he passed the car, he saw a person, later identified as defendant, sitting in the driver's seat with his head "slumped forward." Officer Hoppe continued driving, made a u-turn, pulled behind the car, and saw defendant was "still slumped over forward," "was not moving," and the car's engine was running. Not knowing what was happening and whether defendant was having a medical emergency or was in distress, the officer decided to check on defendant's welfare. He exited his patrol car, approached defendant's driver's side window, and saw that defendant was "passed out." The officer knocked on the window, but got no response. He then shined his flashlight in defendant's face, but again got no response. Defendant awoke after the officer knocked on the window a second time. Defendant's eyes were red and watery, and he appeared disoriented and did not know where he was. Officer Hoppe asked defendant some questions, but defendant did not immediately respond. The officer detected an odor of alcohol coming from defendant's car.

Defendant eventually told Officer Hoppe that he had been in the bar for about an hour, had consumed either two or three drinks, and had only been in the car for two minutes. Defendant also said he was not returning to the bar, was resting up before "hitting the road," and was going to "leave right now" to go to his home, which was approximately two miles away. Officer Hoppe eventually conducted field sobriety tests, the results of which led him to conclude that defendant was intoxicated. An Alcotest revealed defendant had a blood alcohol content of 0.10 percent.

The municipal court judge denied defendant's motion to suppress, and Law Division Judge Alan A. Rockoff affirmed. Judge Rockoff agreed with the municipal court judge that Officer Hoppe's testimony was credible. Judge Rockoff found that Officer Hoppe saw defendant slumped over in his car with the engine running and decided to check on defendant's welfare because he did not know if defendant was in trouble or merely sleeping. The judge concluded the officer's approach of defendant's car was constitutional under the community caretaking doctrine.

Judge Rockoff then determined that based on the totality of circumstances, Officer Hoppe had a reasonable and articulable suspicion that defendant was DWI, and there was "more than" probable cause to conduct field sobriety tests. The judge found that defendant was in the bar's parking lot at 11:00 p.m. with his car engine running, defendant told Officer Hoppe he was in the bar for an hour and had consumed two or three drinks, the officer saw that defendant's eyes were red and watery, and the officer detected the odor of alcohol emanating from defendant's car.

Judge Rockoff also determined the evidence established defendant's intent to operate his car. The judge factually distinguished State v. Daly, 126 N.J.Super. 313 (App. Div.), aff'd, 64 N.J. 122 (1973), and found that defendant was only in his car for two minutes, and when defendant awoke he told Officer Hoppe that he was going to "hit the road" and drive home.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, so long as they are supported by sufficient credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012); State v. Elders, 192 N.J. 224, 243 (2007). Additionally, we afford deference to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the `feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010) (internal quotation omitted). We do not, however, defer to a trial judge's interpretation of the law, and review legal issues de novo. State v. Gandhi, 201 N.J. 161, 176 (2010). We review mixed questions of law and fact de novo. In re Malone, 381 N.J.Super. 344, 349 (App. Div. 2005).

In addition, on appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division—not the municipal court. Id. at 162. However, as in the Law Division, we are not in as good a position as the municipal court judge to determine credibility and should, therefore, refrain from making new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J.Super. 374, 383 (App. Div. 2000).

Applying the above standards, we discern no reason to disturb Judge Rockoff's denial of defendant's motion to suppress and conviction of defendant for DWI.

I.

Defendant does not dispute that Officer Hoppe properly approached defendant's car under the community caretaker doctrine. Thus, the issue is whether Officer Hoppe had a reasonable and articulable suspicion that defendant was DWI and probable cause to administer field sobriety tests.

Law enforcement officers "may stop motor vehicles where they have a reasonable and articulable suspicion that a motor vehicle violation has occurred." State v. Murphy, 238 N.J.Super. 546, 553 (App. Div. 1990). "Reasonable suspicion" means that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). "Reasonable suspicion" is "less than proof ... by a preponderance of the evidence," and "[a] less demanding [standard] than that for probable cause," but must be something greater "than an `inchoate or unparticularized suspicion or `hunch.'" U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989).

"The fact that the officer does not have the state of mind hypothesized by the reasons which provide the legal justification for the search and seizure [or investigatory stop] does not invalidate the action taken, so long as the circumstances, viewed objectively, support the police conduct." State v. Kennedy, 247 N.J.Super. 21, 28 (App. Div. 1991). A Fourth Amendment violation is assessed based upon an objective viewing of the officer's actions considering the circumstances confronting him at that time, not his actual state of mind. Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2783, 86 L. Ed. 2d 370, 378 (1985). Ultimately, "courts will not inquire into the motivation of a police officer whose stop of an automobile is based upon a traffic violation committed in his presence." Kennedy, supra, 247 N.J. Super. at 28. "The fact that the justification for the stop was pretextual ... [is] irrelevant." Id. at 29. The State need not prove that the suspected motor vehicle violation had in fact occurred. Locurto, supra, 157 N.J. at 470.

Here, Officer Hoppe's observations of and conversation with defendant gave the officer an ample factual basis for a reasonable and articulable suspicion that defendant had violated N.J.S.A. 39:4-50, and ample probable cause to administer field sobriety tests. It is well-established that an officer's subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. See State v. Bealor, 187 N.J. 574, 588 (2006) (sustaining a DWI conviction based on an officer's observations of defendant's demeanor, physical appearance, and the smell of alcohol). Accordingly, Judge Rockoff correctly affirmed the denial of defendant's motion to dismiss.

II.

We next consider whether the evidence established beyond a reasonable doubt that defendant intended to operate his car. "[A] person who operates a motor vehicle while under the influence of intoxicating liquor, ... with a blood alcohol concentration of 0.08% or more" is guilty of DWI. N.J.S.A. 39:4-50(a). The term "operate" as used in N.J.S.A. 39:4-50(a) has been broadly interpreted. State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S.Ct. 768, 98 L. Ed. 2d 855 (1988); State v. Mulcahy, 107 N.J. 467, 478-79 (1987). Proof of actual operation of a motor vehicle is not required. State v. Ebert, 377 N.J.Super. 1, 10 (App. Div. 2005). Intent to move a motor vehicle is "operation" under the statute. Tischio, supra, 107 N.J. at 513; Mulcahy, supra, 107 N.J. at 478-79.

"Operation may be proved by any direct or circumstantial evidence — as long at it is competent and meets the requisite standards of proof." State v. George, 257 N.J.Super. 493, 497 (App. Div. 1992). Our Supreme Court has held that

Evidence of intent to drive or "intent to move the vehicle" satisfies the statutory requisite of operation so that the actual movement of the vehicle is not required. Id. at 361.

There was sufficient credible evidence in this case that defendant intended to move his car. The headlights were on, the engine was running, defendant was sitting in the driver's seat at the steering wheel, albeit "passed out," and, when he awoke, he stated to Officer Hoppe a clear intent to drive home. These are factual distinctions from Daly, on which defendant relies. In Daly, unlike here, the defendant's headlights were off, the driver's seat was reclined, and the defendant had specifically gone into the car to sleep and keep warm. Daly, supra, 64 N.J. at 124. We are satisfied that the evidence in this case and reasonable inferences derived therefrom established that defendant operated his car while under the influence of intoxicating liquor, and there was sufficient, credible evidence in the record supporting defendant's conviction of DWI beyond a reasonable doubt.

Affirmed.