Opinion
DOCKET NO. A-0181-14T2
04-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN P. KELLY, Defendant-Appellant.
Joshua Altman argued the cause for appellant (Benedict and Altman, attorneys; Mr. Altman, on the brief). Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Susan L. Berkow, Special Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-12-1498. Joshua Altman argued the cause for appellant (Benedict and Altman, attorneys; Mr. Altman, on the brief). Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Susan L. Berkow, Special Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant John Kelly pled guilty to operating a motor vehicle during a suspension for driving while intoxicated (DWI). He appeals the denial of his motion to suppress and of his petition for entry into the pre-trial intervention (PTI) program. We affirm.
I.
The following facts were elicited from the exhibits and the testimony of South Amboy Police Officer Hector Pena at the suppression hearing. The trial court found Officer Pena to be "absolutely credible."
On Sunday, June 2, 2013, at about 11:45 a.m., Officer Pena was patrolling in uniform in a police cruiser. He observed defendant's vehicle parked behind South Amboy High School. The vehicle was parked in a restricted access area reserved for emergency and delivery vehicles. Signs that were posted at the entrances to the restricted area read "NO THRU TRAFFIC EMERGENCY VEHICLES ONLY," and "NO THRU TRAFFIC DELIVERIES AND EMERGENCY VEHICLES ONLY." Another sign in the area stated "NO PARKING ANYTIME BEHIND THE SCHOOL," and the pavement was marked "NO PARKING FIRE ZONE."
Officer Pena entered the restricted area to investigate the vehicle's presence. As Pena approached the vehicle, defendant began driving away. Pena followed a short distance and then stopped the vehicle on a nearby roadway.
Officer Pena asked defendant for his driving credentials. Defendant indicated that he had a driver's license but he ultimately failed to produce it. Pena elicited from defendant, and entered into the cruiser's on-board computer, defendant's name, date of birth, and social security number. Pena determined that defendant's license was suspended. Defendant then said he was parked in the restricted area for a sporting event.
Officer Pena issued defendant two motor vehicle summonses for driving with a suspended license, N.J.S.A. 39:3-40; and failure to present a driver's license, N.J.S.A. 39:3-29. After authorities discovered that defendant's license was suspended for DWI, N.J.S.A. 39:4-50(a), defendant was charged with fourth-degree operating a motor vehicle during a second or subsequent license suspension for DWI, N.J.S.A. 2C:40-26(b).
Defendant sought admission into the PTI program. The Probation Department did not recommend his admission, and his application was denied by the Middlesex County Prosecutor's Office (prosecutor). Defendant appealed the prosecutor's denial to the trial court. Defendant also sought suppression of the evidence obtained in the motor vehicle stop, namely his identity.
After a two-day hearing, Judge Alberto Rivas orally denied defendant's motion to suppress and his challenge to the prosecutor's denial of defendant's application for entry into PTI. The court found that "it was clear" Officer Pena had reasonable suspicion to stop the vehicle because defendant was parked in a no-parking area, there were no other vehicles in the area, and no sporting event was taking place at the time.
Thereafter, defendant entered a guilty plea to fourth-degree operating a motor vehicle during a second or subsequent license suspension. Under the plea agreement, defendant preserved his right to appeal the denial of his motions, and the prosecutor agreed to dismiss the two motor vehicle summonses. Judge Rivas sentenced defendant to 180 days in jail, during which he was not eligible for parole, as well as fees and penalties. The trial court, this court, and the Supreme Court denied bail pending appeal.
Defendant now appeals his September 8, 2014 judgment of conviction, arguing:
I. THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE THERE WAS NO REASONABLE AND ARTICULABLE SUSPICION TO JUSTIFY A MOTOR VEHICLE STOP, IN VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH SEVEN OF THE NEW JERSEY CONSTITUTION.
II. JOHN KELLY SHOULD BE ADMITTED INTO THE PRE-TRIAL INTERVENTION PROGRAM AS THE DENIAL CREATED A CLEAR ERROR IN JUDGMENT ALLOWING THE TRIAL COURT TO OVERTURN THE PROSECUTOR'S REJECTION.
II.
We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "[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. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Those findings warrant particular deference when they "are substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Elders, supra, 192 N.J. at 244). "Thus, appellate courts should reverse only when the trial court's determination is 'so clearly mistaken "that the interests of justice demand intervention and correction."'" State v. Gamble, 218 N.J. 412, 425 (2014) (quoting Elders, supra, 192 N.J. at 244). "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference," and its "legal conclusions are reviewed de novo." Ibid.
Defendant argues the trial court erred in denying his motion to suppress. The United States and New Jersey Constitutions permit a brief investigative stop of a vehicle based on reasonable suspicion "'that an offense, including a minor traffic offense, has been or is being committed.'" State v. Amelio, 197 N.J. 207, 211 (2008) (citation omitted), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009); see also Navarette v. California, 572 U.S. ___, ___, 134 S. Ct. 1683, 1687, 188 L. Ed. 2d 680, 686 (2014). An investigatory stop "'is valid if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" State v. Mann, 203 N.J. 328, 338 (2010) (citation omitted). Moreover, reasonable suspicion of "[a] motor vehicular violation, no matter how minor, justifies a stop [even] without any reasonable suspicion that the motorist has committed a crime or other unlawful act." State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div. 2011).
Reasonable suspicion "requires '"some minimal level of objective justification for making the stop."'" Amelio, supra, 197 N.J. at 211-12 (citation omitted). "Although a mere 'hunch' does not create reasonable suspicion, the level of suspicion required is 'considerably less than proof of wrongdoing by a preponderance of the evidence,' and 'obviously less' than is necessary for probable cause." Gamble, supra, 218 N.J. at 428 (citation omitted).
Here, Officer Pena had a reasonable suspicion to make the motor vehicle stop. Defendant's vehicle was parked in an area where entry was restricted and parking was prohibited as indicated by the three traffic signs. If an officer has reasonable suspicion that a vehicle is illegally parked, the officer may stop the vehicle. See State v. Mai, 202 N.J. 12, 23 (2010) ("Because the van was double-parked in violation of the traffic code, the officers possessed sufficient reasonable suspicion to detain the van.").
It is "immaterial" whether the officer ultimately issued a motor vehicle summons for illegal parking. Id. at 23 n.5. Similarly, at a suppression hearing, "the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense." State v. Heisler, 422 N.J. Super. 399, 413 (App. Div. 2011) (quoting State v. Williamson, 138 N.J. 302, 304 (1994)).
Parking illegally can be a motor vehicle offence. Under N.J.S.A. 39:4-138(g), no operator may stand or park a vehicle "[i]n any appropriately marked 'No Parking' space established pursuant to the duly promulgated regulations of the Commissioner of Transportation." Under N.J.S.A. 39:4-197(g), a municipality may pass ordinances or resolutions "[r]egulating the parking of vehicles upon land owned or leased and maintained by the municipality, a parking authority or the board of education of a school district." The State's failure to identify the regulation, ordinance, or resolution which authorized the restricted-access and no-parking signs behind the school did "'not negate [Officer Pena's] good faith stop based upon an articulable and reasonable suspicion that'" a vehicle parked in that restricted, no-parking area was illegally parked. Mai, supra, 202 N.J. at 23 n.5 (citation omitted).
We need not consider the State's additional contentions that Officer Pena had reasonable suspicion that defendant, "knowing that he [was] not licensed or privileged to do so," was engaged in unlicensed entry or defiant trespass in violation of N.J.S.A. 2C:18-3(a) or (b)(2).
Furthermore, the school was closed, defendant's vehicle was the only vehicle parked in the restricted area behind the school, and Officer Pena testified that it was unusual for vehicles to be parked alone in this area. This caused the officer to be concerned about school-related crime such as vandalism. See State v. Nishina, 175 N.J. 502, 512 (2003) (the defendant's presence on school grounds on a Sunday evening when school was closed, in violation of an ordinance, contributed to reasonable suspicion). Moreover, defendant began driving away from the school when Pena drove his marked police car into the restricted area. As the trial court found, it was a reasonable inference that defendant drove away because he did not want to have any police contact. See State v. Pineiro, 181 N.J. 13, 26 (2004) (flight on seeing a patrol car, "in combination with other circumstances . . . may support reasonable and articulable suspicion"). Combined with defendant's apparently illegal parking in the restricted area, these "'specific and articulable facts,'" when "'taken together with rational inferences from those facts, [gave] rise to a reasonable suspicion of criminal activity.'" Mann, supra, 203 N.J. at 338 (citation omitted).
Defendant notes that there were athletic fields at the school. Officer Pena testified that there were sometimes sporting events and families playing sports there on the weekends, and that it was not unusual to see multiple cars in the restricted area during sporting events. However, there were no sporting events in progress when the officer saw defendant's vehicle parked alone in the restricted area.
After the officer stopped the vehicle, defendant said he was there for a sporting event. The officer saw a child and sporting gear in the vehicle. Other vehicles arrived afterwards, corroborating that there was a sporting event. However, the officer testified he "didn't know that before" he "conducted the motor vehicle stop." We "'"consider the totality of the information available to the officer at the time of the [stop]"' to evaluate whether a constitutional defect exists. '"Information acquired subsequently cannot be used to either bolster or defeat the facts known at the time."'" State v. Myers, 442 N.J. Super. 287, 294 n.2 (App. Div. 2015) (citation omitted), certif. denied, 224 N.J. 123 (2016).
Accordingly, it does not affect the validity of the stop that, based on the post-stop information, Officer Pena believed that defendant "was allowed to be there" because Pena believed vehicles were authorized to park in the restricted area during sporting events. See ibid. In any event, Pena did not ticket defendant for parking illegally.
Defendant argues Officer Pena lacked a reasonable suspicion to stop the vehicle, and cites State v. Kuhn, 213 N.J. Super. 275 (App. Div. 1986). In Kuhn, a vehicle parked diagonally across two parking spaces in the parking lot of a bar drove away when an officer approached. Id. at 277. However, the State did not claim that the defendant, who was in a private parking lot, was illegally parked. See id. at 280 ("There was no traffic violation."). Instead, the State in Kuhn unsuccessfully tried to justify the stop based on the races of the three persons in and around the car, the assertion that the presence of three people satisfied the profile of a drug deal, and the high-crime nature of the area. Id. at 281-82.
Defendant also cites State v. Cryan, 320 N.J. Super. 325 (App. Div. 1999). There, the officer "stopped [the defendant's] vehicle because he was under orders to stop every moving vehicle during his shift," there was no indication "that defendant was violating the law," and the State "conced[ed] that the officer did not have an articulable and reasonable suspicion." Id. at 331-32.
By contrast, Officer Pena had reasonable suspicion that defendant's vehicle was illegally parked in a restricted area behind the school. Furthermore, the trial court found "[t]here's no suggestion of profiling in this case, which some of the cases that are cited by the defense is the evil that the Court was trying to prevent." Thus, defendant's reliance on Kuhn and Cryan is misplaced.
III.
Defendant next argues that the prosecutor and trial court erred in denying his PTI application. "Deciding whether to permit diversion to PTI 'is a quintessentially prosecutorial function.'" State v. Waters, 439 N.J. Super. 215, 225 (App. Div. 2015) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)). "Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options." Ibid. (quoting State v. Nwobu, 139 N.J. 236, 246 (1995) (citation omitted)). "Accordingly, 'prosecutors are granted broad discretion to determine if a defendant should be diverted' to PTI instead of being prosecuted." Ibid. (quoting State v. K.S., 220 N.J. 190, 199 (2015)).
"Thus, the scope of review is severely limited." Ibid. (quoting State v. Negran, 178 N.J. 73, 82 (2003)). "Reviewing courts must accord the prosecutor 'extreme deference.'" Ibid. (quoting Nwobu, supra, 139 N.J. at 246). "In order to overturn a prosecutor's rejection, a defendant must 'clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion.'" Id. at 226 (quoting State v. Watkins, 193 N.J. 507, 520 (2008)). "'[I]nterference by reviewing courts is reserved for those cases where needed "to check [] the most egregious examples of injustice and unfairness."'" Ibid. (citation omitted).
To prove an abuse of discretion, "a party must show that the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a 'clear error in judgement.'" Nwobu, supra, 139 N.J. at 247 (citation omitted). "In order for such an abuse of discretion to rise to the level of 'patent and gross,' it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." Waters, supra, 439 N.J. Super. at 236 (quoting Wallace, supra, 146 N.J. at 583).
We find no basis to disturb the discretionary decision of the prosecutor here. Defendant had been convicted of DWI seven times. Defendant had also been convicted seven times before for driving while suspended. As the prosecutor stressed, defendant "had a history of non-compliance" with the motor vehicle laws, was caught making "a calculated decision" to drive despite being suspended, and "believes the laws of this state do not apply to him." The prosecutor noted that fifteen "arrests, license suspensions, and jail has not deterred the defendant's behavior."
Although defendant's most recent DWI convictions were in 1989, 1990, and 1993, he was still on DWI suspension at the time of this offense because he received three ten-year license suspensions which had to run consecutively. See N.J.S.A. 39:4-50 ("If the driving privilege of any person is under revocation or suspension . . . at the time of any conviction for a violation of this section, the revocation or suspension period imposed shall commence as of the date of termination of the existing revocation or suspension period."). Thus, N.J.S.A. 2C:40-26(b) applied to him. Cf. State v. Perry, 439 N.J. Super. 514 (App. Div. 2015). --------
"The PTI program is governed by N.J.S.A. 2C:43-12 to -22, Rule 3:28, and the Guidelines for Operation of Pretrial Intervention in New Jersey" and "[t]hey establish the procedures for reviewing PTI applications." Waters, supra, 439 N.J. Super. at 223. Defendant argues that the prosecutor gave inappropriate weight to certain N.J.S.A. 2C:43-12(f) factors. In fact, the prosecutor thoroughly considered all of the N.J.S.A. 2C:43-12(f) factors, including those favorable to defendant. The prosecutor found that those negative factors outweighed the positive factors, including that defendant had not received any citations for twenty years. The trial court correctly found that defendant did not present evidence which "'clearly and convincingly establish[ed] that the prosecutor's decision constitute[d] a patent and gross abuse of discretion.'" Watkins, supra, 193 N.J. at 520 (citation omitted).
Defendant's remaining arguments are without sufficient merit to warrant discussion. R. 2:11-2(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION