Opinion
DOCKET NO. A-6252-11T1
01-14-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH P. BARTOLOTTA, Defendant-Appellant.
Robert W. Ratish, attorney for appellant. Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-057.
Robert W. Ratish, attorney for appellant.
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
The opinion of the court was delivered by ACCURSO, J.A.D.
Following denial of his suppression motion in municipal court, defendant Joseph P. Bartolotta entered a conditional guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50 and refusal to submit to a breath test, N.J.S.A. 39:4-50.2 and was sentenced as a first offender, N.J.S.A. 39:4-50.4a. Upon de novo review, the Law Division judge denied defendant's suppression motion, found defendant guilty, and imposed the same sentence as the municipal judge.
Defendant appeals contending that he should be acquitted of his refusal to take a breath test because there was insufficient reasonable suspicion to permit the charging officer to request that defendant take a breath test. We disagree.
We draw the facts from the transcript of the suppression hearing in municipal court. While running stationary radar in a marked patrol car, the officer saw defendant's car approach at an estimated forty-five miles per hour, five miles per hour over the speed limit, with no front license plate. The officer's radar confirmed that defendant was traveling at forty-four miles per hour. As the car passed, the officer noted that the car was without a rear license plate as well. The officer pulled onto the road and followed defendant's car. Although the officer could see something in the car's rear window, he could not confirm that it was a temporary tag until he pulled the vehicle over. He further testified that he could not read the temporary tag until he walked to the car and shone his flashlight on it through the rear window.
The officer ascertained the tag was valid and proceeded to the driver's door to explain why he had signaled the driver to pull over. The officer explained the reason for the stop and then asked defendant for his credentials. When the officer spoke to the driver, the officer detected an odor of alcohol coming from inside the vehicle. The officer asked defendant to step out of the car to determine whether the odor was emanating from defendant or his passengers. As the officer administered a sobriety test, he noticed defendant was chewing gum and asked him to spit it out. Thereafter, the officer determined that there was alcohol on defendant's breath.
At trial, the officer testified for the State, and defendant called one of his passengers to testify on his behalf. The court viewed the video of the stop during the officer's direct testimony. Defendant's witness testified that she and another companion had been out with defendant on the night of the stop. While the woman testified that the three had been in a bar, and that she and the third person had been drinking, she testified that defendant was the designated driver and had not consumed any alcohol. The municipal court judge found the officer to be "very credible" and the defense witness credible as well.
Like the municipal court that initially heard the proofs, and the Law Division judge that reviewed them on de novo appeal, we have no difficulty in determining that the initial stop of defendant's car by the officer was lawful. Reasonable suspicion for an investigatory stop requires only a minimal level of objective justification. State v. Nishina, 175 N.J. 502, 511 (2003). The "reasonable and articulable suspicion" standard does not require the State to prove that a defendant actually committed a motor vehicle violation; the State need prove only that the officer had a reasonable and articulable suspicion that an offense had been committed. State v. Jones, 326 N.J. Super. 234, 239 (App. Div. 1999). A reviewing court is to evaluate all of the circumstances surrounding the encounter, balancing the State's interest in public safety and effective law enforcement against an individual's right to be spared unwarranted police intrusions. State v. Davis, 104 N.J. 490, 504 (1986).
The Law Division judge found that the officer observed, and confirmed through radar, that defendant was traveling approximately four miles over the speed limit, and that the car was without visible license plates. The officer testified that he stopped defendant because he could not see a front or rear license plate, nor identify a temporary tag. The judge concluded that the officer's observations provided the requisite reasonable suspicion to conduct a motor vehicle stop under Davis.
The Law Division judge rejected defendant's contention that the officer was obligated to abandon the stop once the officer realized that defendant's temporary tag was valid. Like the municipal judge, the Law Division judge found credible the officer's explanation that he could not confirm that defendant was displaying a temporary tag until after he had initiated the stop and could not verify that tag was current until he walked over to the car and shone his flashlight on it. Both judges accepted the officer's testimony that he then proceeded to the driver's side door to explain why he had pulled the driver over, which the officer was in the course of doing when he smelled alcohol emanating from the car, providing separate articulable suspicion that defendant was operating the vehicle in violation of N.J.S.A. 39:4-50.
Those findings are entitled to our deference. "'[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). It is incumbent on us to "defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
On an appeal from the municipal court, the Law Division decides the case completely anew on the record made before the municipal judge, "giving due, although not necessarily controlling, regard to the opportunity" of the municipal judge to evaluate the credibility of the witnesses. Johnson, supra, 42 N.J. at 157. Stated differently, the Law Division in a trial de novo makes its own independent findings of fact. State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000).
In contrast, we review the Law Division's decision employing the "substantial evidence rule." State v. Heine, 424 N.J. Super. 48, 58 (App. Div.), certif. denied, 211 N.J. 608 (2012). Once satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or the case "a close one." Johnson, supra, 42 N.J. at 162. In addition, under the two-court rule, only "a very obvious and exceptional showing of error" will support setting aside "concurrent findings of facts and credibility determinations" made by the Law Division and the municipal court. State v. Locurto, 157 N.J. 463, 474 (1999).
Defendant contends the video of the stop undermined the credibility of the officer's testimony that he spoke to the driver only with the intent of explaining why the officer had stopped the car and letting the driver proceed on his way, then smelled alcohol and proceeded to make further inquiries. Both courts, however, viewed the video and found the officer's testimony credible. Moreover, as the stop was clearly lawful, the additional momentary duration of the seizure occasioned by the officer's having walked from the rear window to the driver's door to explain the reason for the stop and the subsequent intrusion on defendant's liberty by requesting his credentials was minimal and not an unreasonable intrusion on defendant's individual liberties. See State v. Hester, 245 N.J. Super. 75, 82-83 (App. Div. 1990) (finding credentials check permissible after suspicion prompting stop dispelled).
Based on our review of the record, we are satisfied that the Law Division judge's denial of the suppression motion and subsequent finding of guilt could reasonably have been reached on the sufficient credible evidence present in the record. Johnson, supra, 42 N.J. at 162; see also Locurto, supra, 157 N.J. at 470-75 (applying the Johnson standard in reviewing a judge's determinations on a suppression motion).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION