STATE OF NEW JERSEY v. DENNIS M. FREDRICKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2875-04T32875-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS M. FREDRICKSON,

Defendant-Appellant.

____________________________________________________________

 

Submitted August 30, 2005 - Decided

Before Judges Payne and Graves.

On appeal from Superior Court of New Jersey, Law

Division, Bergen County, BMA No. 001-14-04.

Brian J. Neary, attorney for appellant (Mr. Neary,

and F. Jon Iannaccone, of counsel; Mr. Iannaccone,

on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney

for respondent (Jessica A. Gomperts, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

On June 20, 2004, defendant Dennis Fredrickson received two traffic summonses, one for driving while intoxicated, in violation of N.J.S.A. 39:4-50, and one for failure to signal, contrary to N.J.S.A. 39:4-126. After the municipal court judge denied defendant's motion to suppress, defendant pled guilty to driving while intoxicated, and the failure to signal charge was dismissed at the request of the State. Defendant appealed the denial of his motion to suppress to the Law Division, and in a written decision dated January 7, 2005, Judge Conte concluded that the arresting officer "had a reasonable and articulable suspicion to conduct a motor vehicle stop based on her assessment of the totality of the circumstances." Defendant now appeals the denial of his motion to suppress. We affirm.

Defendant contends that the State failed to "demonstrate the existence of a reasonable and articulable basis to believe that a traffic violation had occurred." Thus, defendant argues that "the stop was unlawful, and any evidence obtained following the stop, including observations made by police officers, as well as the results of the [b]reathalyzer tests, should have been suppressed." Defendant was stopped by Officer Brazofsky at approximately 3:20 a.m., on June 20, 2004. Brazofsky was the only witness to testify at the suppression hearing, and her testimony included the following:

At . . . approximately 3:20 in the morning, I was traveling westbound on Washington Avenue. I observed a vehicle it was approximately 200 feet in front of mine also traveling westbound on Washington Avenue.

As I was traveling, I observed the vehicle. As I was watching it, it made an abrupt, like a short, slow down stop and made a left turn onto 7th Avenue. The vehicle did not signal. I was unaware it was going to make a turn at that time at which time I continued up to the vehicle and also made the left turn behind it.

BY MR. KARCH: [Municipal Prosecutor]

Q. After you turned behind the vehicle, what did you do?

A. When I turned the vehicle, I was just about behind it. I immediately activated my overhead lights. The vehicle immediately pulled to the right of the road at which time I pulled behind that vehicle.

Q. You said the vehicle was traveling westbound on Washington Avenue, 7th Avenue intersects with Washington Avenue, is that correct?

A. Yes, it does.

Q. And both of those are highways in the Borough of Westwood?

A. Yes, they are.

A police officer is justified in stopping a motor vehicle when she has "at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law. . . ." Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Murphy, 238 N.J. Super. 546, 553-54 (App. Div. 1990). This standard requires less objective evidentiary justification than does the probable cause test. See State v. Davis, 104 N.J. 490, 501 (1986).

We have held that abnormal operation of a motor vehicle establishes a reasonably objective basis to justify a motor vehicle stop. See State v. Washington, 296 N.J. Super. 569, 572 (App. Div. 1997) (police officer had reasonably objective basis to stop defendant's automobile when defendant was driving thirty-six miles per hour in forty-five mile-per-hour business zone and was weaving within his lane of traffic at 12:20 a.m.); State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992) (stop of defendant's automobile was objectively reasonable when defendant was observed driving less than ten miles per hour in twenty-five mile-per-hour zone shortly after 2 a.m.).

In this case, after considering the hour, defendant's abrupt stop at the intersection, and defendant's left turn without signaling, the Law Division judge concluded that Officer Brazofsky had an articulable and reasonable suspicion that a traffic violation had occurred, and she had a reasonably objective basis for stopping defendant's vehicle. To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor vehicle violation occurred. State v. Williamson, 138 N.J. 302, 304 (1994).

Appeals from municipal court convictions are heard first in the Law Division. Upon further appeal to this court, we consider only the action of the Law Division, and not that of the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). We affirm substantially for the reasons stated by Judge Conte in his written decision dated January 7, 2005. His findings are based upon sufficient credible evidence contained in the record and could reasonably have been reached based upon that evidence. State v. Locurto, 157 N.J. 463, 472 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964).

 
Affirmed.

(continued)

(continued)

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A-2875-04T3

November 23, 2005