Opinion
DOCKET NO. A-3934-11T3
01-18-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KAZIMIERZ SKALSKI, Defendant-Appellant.
Kevin T. Conway argued the cause for defendant. William Miller, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Miller, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli, Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-33-11.
Kevin T. Conway argued the cause for defendant.
William Miller, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Miller, of counsel and on the brief). PER CURIAM
After defendant Kazimierz Skalski's motion to suppress was denied by the Palisades Interstate Park Municipal Court, he pled guilty to driving while intoxicated, N.J.S.A. 39:4-50; refusal to take a breath test, N.J.S.A. 39:4-50.2; failure to keep right, N.J.S.A. 39:4-88(a); and crossing a solid line, Municipal Ordinance No. 411.1(k). The charge of reckless driving, N.J.S.A. 39:4-96, and another municipal ordinance violation were dismissed. The Law Division denied defendant's motion to suppress de novo on the record on February 24, 2012. Defendant appeals from the Law Division decision, arguing that he was subjected to an unlawful pretext motor vehicle stop and arrested without probable cause. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant's native language is Polish. He speaks English with an accent, and used an interpreter in court. Det. Matthew Levine from the Palisades Interstate Parkway Police Department was the only witness at trial. On March 9, 2011, at approximately 1:00 a.m., he was parked at the center median of the Palisades Interstate Parkway facing northbound when he observed defendant's sport utility vehicle (SUV) traveling in the left-hand lane headed northbound. Det. Levine saw the SUV make an abrupt, "very fast movement left," such that the left tires of the vehicle crossed over the solid yellow line on the shoulder. He saw the SUV "redirect[]" to the right, cross the dotted yellow line located between the two traffic lanes and then return to the left-hand lane. Det. Levine followed the SUV, caught up to defendant and activated his patrol car's video camera. Det. Levine pulled defendant over, approached defendant's passenger-side window and requested his license and registration. Det. Levine noticed that defendant's eyes were watery, bloodshot and droopy, and a strong odor of alcohol emanated from inside the SUV. Det. Levine directed defendant to exit the vehicle and go to the back of the car. Although Det. Levine could smell alcohol on defendant's breath, defendant initially denied drinking that evening. Later he acknowledged having one drink. Defendant responded to Det. Levine's questions and followed his instructions. Defendant handed Det. Levine his license and registration without further explanation, and he understood Det. Levine's request for him to get out of the car.
Det. Levine next asked defendant to move to a safer location at the front of defendant's car, where the road surface was flat. They were therefore no longer on camera for the walk-and-turn and the one-legged stand field sobriety tests. Defendant seemed to understand the directions for the sobriety tests and Det. Levine demonstrated the tests for defendant. Det. Levine testified that defendant "fell off the starting position twice" and lost his balance before he even started the walk-and-turn test. Det. Levine explained that:
Det. Levine attended a five-day course about field sobriety tests held by the State Police in December 2010. Det. Levine administered a horizontal gaze nystagmus (HGN) test that defendant failed. The Law Division explicitly disregarded the results of this test. HGN test results have limited utility. State v. Doriguzzi, 334 N.J. Super. 530, 546 (App. Div. 2000).
During the first walk down, one through nine, he failed to put his heel to his toe for the first seven steps. He fell off the line. Not fell onto the ground, but just lost his balance, re-corrected himself at ... steps two and four. . . . The eighth and ninth step he did touch his heel to his toe. He did the -- he did the turn completely correct, I believe, and on his nine steps back towards me, he failed to touch his heel to his toe the entire time back. He also did not count out loud the entire time [] there and back [during] the complete [eighteen] steps.
Next, Det. Levine administered the one-legged stand test, which requires a person to raise his right or left leg six inches off the ground, point his toes outward, keep his hands to his side and count out loud until being told to stop, which Det. Levine demonstrated for defendant. The test's duration is ordinarily thirty seconds. Det. Levine asked defendant if he had any injuries that would prevent his performance of the test and defendant responded that he had been in a skiing accident. Det. Levine advised defendant to raise the injured leg so as not to put undue pressure on it.
Initially, defendant stated that he did not understand the test. However, Det. Levine testified that "[b]efore I could even explain the test and demonstrate the test ag[a]in, he started the test, as he -- as I explained it." Defendant then dropped his leg before being told to do so. Det. Levine placed defendant under arrest.
On appeal, defendant raises the following issues:
We reproduce defendant's point headings as written.
POINT I: THE OPEN FILE DISCOVERY MATERIAL(S) INCLUDING BUT NOT LIMITED TO THE VIDEOTAPED EVIDENCE AS THE "BEST EVIDENCE" CLEARLY INDICATE A PRE-TEXT ILLEGAL STOP AND SEIZURE.
POINT II: FORCIBLE MOTOR VEHICLE STOP WAS UNREASONABLE AND UNLAWFUL.
POINT III: NO PROBABLE CAUSE EXISTED FOR ARREST.
A. OBJECTIVE OBSERVATION OF THE ACTIONS OF THE DRIVER'S MOTOR VEHICLE MUST RISE TO THE LEVEL OF OBJECTIVE REASONABLE BASIS TO WARRANT FORCIBLE STOP; SAME DID NOT OCCUR IN THIS CASE.POINT IV: DENIAL OF THE MOTION TO SUPPRESS IS INCONSISTENT WITH THE FACTS AND PRINCIPLES OF LAW.
B. FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED "OFF CAMERA."
C. THE REMAINING FIELD SOBRIETY TEST OF THE ONE LEG STAND AND WALK THE LINE, WHILE NOT ON CAMERA, WERE ALSO NOT PROPERLY EXPLAINED TO THE DEFENDANT.
POINT V: EVIDENCE SHOULD BE SUPPRESSED AS IT WAS OBTAINED AS A RESULT OF UNLAWFUL ARREST AND FRUIT OF THE POISONOUS TREE.
Our scope of review of the Law Division is limited, and centers on "whether the Law Division's de novo findings 'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Review of municipal court decisions in the Law Division, however, is de novo on the record. R. 3:23-8(a).
The judge in a trial de novo must "make his own findings of fact" based upon the record made in the municipal court. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). "His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function . . . ." Ibid. (citations omitted).
The Law Division appropriately deferred to the credibility findings made by the municipal court. State v. Avena, 281 N.J. Super. 327, 334 (App. Div. 1995); see also State v. Locurto, 157 N.J. 463, 472 (1999). The Law Division performed its own fact-finding de novo, finding that Det. Levine's initial observations of defendant as well as defendant's performance on the field sobriety tests "cumulatively give [the court] sufficient grounds to de novo deny the motion to suppress."
I
Defendant argues that Det. Levine engaged in an unlawful pretextual stop and the ensuing arrest was unlawful. The State argues that the stop was supported by reasonable suspicion and the arrest was based on probable cause.
The United States Supreme Court has held that before an individual can be pulled over in his or her motor vehicle, the police need at least an "articulable and reasonable suspicion that a motorist" violated a traffic law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Carpentieri, 82 N.J. 546, 549 (1980) (adopting the Prouse standard). See State v. Barrow, 408 N.J. Super. 509, 518 (App. Div.), certif. denied, 200 N.J. 547 (2009) ("Investigatory stops are valid in situations where the objective basis for the stop was a minor traffic infraction.") (citations omitted); State v. Bernokeits, 423 N.J. Super. 365, 370 (App. Div. 2011) ("A motor vehicular violation, no matter how minor, justifies a stop without any reasonable suspicion that the motorist has committed a crime or other unlawful act." (citations omitted)).
The New Jersey Supreme Court has held:
It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver hasAlso, "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. The fact that the justification for the stop was pretextual . . . [is] irrelevant[.]" Barrow, supra, 408 N.J. Super. at 518 (first alteration in original) (internal quotation marks and citations omitted).
committed a motor vehicle offense. To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred.
[Locurto, supra, 157 N.J. at 470 (internal quotation marks and citations omitted).]
Det. Levine witnessed defendant fail to move to the right lane and cross the solid line on the left shoulder of the highway. Defendant continued to travel in the left lane, failing to keep right, after Det. Levine pulled out into traffic behind him and activated his video camera. Therefore, the reasonable basis to establish that defendant violated a motor vehicle law was well established through Det. Levine's testimony and the videotape.
II
Defendant argues that even if the stop were proper, Det. Levine did not have probable cause to arrest him.
N.J.S.A. 39:5-25, states in pertinent part:
A law enforcement officer may arrest without a warrant any person who the officer has probable cause to believe has operated a motor vehicle in violation of [N.J.S.A. 39:4-50, driving while intoxicated], regardless of whether the suspected violation occurs in the officer's presence.
We have noted that "videotape is not an essential element of a drunken-driving prosecution." State v. Gordon, 261 N.J. Super. 462, 466 (App. Div. 1993) (discussing a police department's decision to discontinue the practice of videotaping driving under the influence cases). Ideally, Det. Levine would have caught all the field sobriety tests on camera; however, he stated that due to safety concerns and the fact that he was working alone, he had to move defendant to a location beyond the camera's view. Det. Levine's oral instructions and defendant's responses are audible on the videotape. Defendant cites no support for the proposition that since a videotape showing the performance of the tests would provide more persuasive evidence, without it, his motion to suppress should be granted. The Law Division found Det. Levine to be credible and accepted his rendition of the facts.
We reviewed the CD-ROM containing video footage of the motor vehicle stop.
Probable cause to arrest is "something less than [the] proof needed to convict and something more than a raw, unsupported suspicion." State v. Davis, 50 N.J. 16, 23 (1967), cert. denied, 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968). Probable cause exists when the totality of the facts and circumstances presented to the arresting officer would support "a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Sims, 75 N.J. 337, 354 (1978) (quoting Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 333, 3 L. Ed. 2d 327, 332 (1959)). "Probable cause has been defined as []'a well-grounded suspicion that a crime has been or is being committed.'" State v. Belliard, 415 N.J. Super. 51, 79 (App. Div. 2010) (quoting State v. Pineiro, 181 N.J. 13, 21 (2004)), certif. denied, 205 N.J. 81 (2011).
Defendant argues that because he did not understand English, the tests were not properly administered. "Defendants who claim that they do not speak or understand English must bear the burden of production and persuasion on that issue." State v. Marquez, 202 N.J. 485, 514 (2010) (citations omitted). Other than requesting an interpreter in court, defendant did not demonstrate an inability to speak or understand English. On the contrary, testimony from Det. Levine suggested that defendant was able to understand and speak English, which is borne out by the audio portion of the video. Even when defendant said he did not understand Det. Levine's instructions, he proceeded to perform the sobriety test in such a way as to demonstrate his understanding.
Appellant does not specifically challenge the refusal by claiming that his inability to speak or understand English influenced his decision to refuse a breathalyzer test.
--------
Based on Det. Levine's observations of the SUV, the alcohol smell coming from defendant's car and his person, the appearance of defendant's eyes and his responses to the sobriety tests, the Law Division's determination that probable cause existed to arrest defendant for driving while intoxicated is well-founded.
Defendant's remaining arguments are without sufficient merit to require a written opinion. R. 2:11-3(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