STATE OF NEW JERSEY v. ALBERT B. CAMPBELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4299-04T14299-04T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ALBERT B. CAMPBELL,

Defendant-Respondent.

_______________________________

 

Submitted October 11, 2005 - Decided

Before Judges Holston and Gilroy.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Camden County, 2-2005.

Vincent P. Sarubbi, Camden County Prosecutor, attorney for appellant (Mindy S. Mellits, Assistant Prosecutor, of counsel and on the brief).

Emmett E. Primas, Jr., attorney for respondent.

PER CURIAM

The State of New Jersey appeals from a decision and order of the Law Division suppressing evidence of defendant Albert Campbell's intoxication. For reasons hereinafter expressed, we affirm.

On September 19, 2004, defendant was issued a summons for operating a motor vehicle while under the influence of alcohol, N.J.S.A. 39:4-50(a) (DWI), by Pennsauken Township patrolman Horcher, who had been called to the scene by a second police officer of the Township, Michael Biazzo, who was off duty at the time. After his arrest, defendant submitted to a breathalyzer, that resulted in a blood alcohol concentration reading of .16 percent. Defendant filed a motion in the municipal court seeking to suppress evidence of his intoxication that was obtained subsequent to the stop on the basis that the police did not have a reasonable and articulable suspicion to make the motor vehicle stop.

The only individuals who testified at the hearing were Biazzo and defendant. Biazzo testified that he had just left work and was on his way to Bryson's Pub, when he stopped for a red traffic signal at the intersection of Cove Road and Park Avenue. Biazzo observed a Mercury Cougar motor vehicle pass him on the left at a speed of approximately 25 - 30 m.p.h., and proceed through the red signal. Initially, Biazzo thought that because his vehicle shook when defendant's vehicle passed, there may have been contact between the two vehicles. Biazzo followed defendant while he telephoned police headquarters requesting assistance and advised that he was "following a vehicle that possibly hit mine and [was] fleeing the area and had [run] a red traffic signal . . . ."

Defendant parked his Mercury Cougar in his driveway, and while exiting his vehicle, Biazzo approached and identified himself as an off-duty Pennsauken Township police officer. Biazzo requested that defendant "have a seat back in [his] vehicle" and explained the incident to him. Biazzo advised defendant that a marked police unit was on its way to his home for an officer to speak to him. Defendant complied and advised Biazzo that he had not been involved in a motor vehicle accident. While waiting for the marked police unit, Biazzo made observations of the vehicles and was satisfied that no contact had occurred between them. Upon patrolman Horcher's arrival, Biazzo turned the investigation over to him, during which Horcher made observations of defendant's intoxication and arrested defendant for DWI.

Defendant testified that he had consumed about three beers earlier in the evening at home while watching a boxing match on television with his wife, his two sons, his friend, Adolph Wilson, and a friend of one of his son's. Defendant left his house with Adolph to go to Bryson's to purchase beer. While in the pub, he consumed one "gin and ginger ale," after which he left the pub and walked across the street to his vehicle that was in a parking lot. While traversing the street, defendant was approached by an employee of Bryson's who inquired whether he had paid for the beer. After advising in the affirmative, the employee left, and defendant proceeded to his vehicle. As defendant was exiting the parking lot, he observed Biazzo's vehicle stopped short of the intersection. Defendant thought the driver was waiting for someone because the vehicle was back about ten feet or so from the intersection. Defendant passed Biazzo's motor vehicle at a speed of approximately 5 - 10 m.p.h., and proceeded through a green traffic light. He admitted that he may have gone slightly over the yellow line in the roadway when he went around Biazzo's motor vehicle. He denied that Biazzo ever informed him at his house that he had traveled through a red traffic signal, but only advised him that he had been involved in a motor vehicle accident with Biazzo's vehicle.

The municipal court judge denied the motion to suppress, finding that Biazzo was credible and had a clear observation of defendant proceeding through a red traffic signal. The judge stated:

I resolve the credibility issue in favor of the State for these reasons: I found Officer Biazzo['s] . . . testimony to be credible, [he] answered all questions forthrightly and candidly. I find that he was in the position - - first of all, he [is] a trained officer. I conclude that he does have the ability to tell the difference between a green and red light. He [has] testified in my opinion credibly that the light was red and he was waiting for the light to change in the process of finding a parking spot to go to Bryson's after duty.

The judge supported his determination concerning Biazzo's credibility, finding there was no other reason for Biazzo to have followed Campbell's motor vehicle because Biazzo had just left work; was on his way to relax at Bryson's pub; and the last thing he would want to do would be to get involved in a motor vehicle investigation. After denial of the motion to suppress, defendant entered a conditional guilty plea to the charge of DWI. The court suspended defendant's driving privileges for seven months, directed defendant to serve a period of twelve hours at an approved Intoxicated Driver Resource Center, and assessed appropriate fines and penalties. The sentence was stayed by the court pending appeal.

On appeal de novo to the Law Division, defendant renewed his motion to suppress the evidence concerning his intoxication on the same grounds argued in the municipal court. The trial judge, after reviewing the transcript from the municipal court, issued a written decision and order granting the motion and remanding the matter back to the municipal court for further proceedings as necessary and appropriate. The State sought leave to appeal the Law Division's order and on April 28, 2005, this court granted the State's motion.

On appeal, the State argues that the trial judge erred in granting defendant's motion by failing to give "due regard" to the opportunity of the municipal court judge to determine the credibility of the witnesses who testified in the municipal court.

Appeals from the Municipal Court to the Law Division are de novo. R. 3:23-8. The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge must make his or her "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983), certif. denied, 95 N.J. 197. The trial judge's function differs from this court's function. "His [or hers] is not the appellate function governed by the substantial evidence rule[,] but rather an independent fact-finding function . . ." Ibid.

Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (internal citations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In this case, the Law Division judge reached a different conclusion concerning the credibility of the two witnesses. The judge gave great weight to the fact that, although the motor vehicle stop was based on alleged traffic violations, no summonses were issued to the defendant, other than the summons for DWI:

Having given regard to Judge Piperno's opportunity to judge or assess credibility, this Court nonetheless has an "independent fact-finding function", and "must make [its] own findings of fact." In doing so, I am obliged to determine the case completely anew on the record made below, giving due although not necessarily controlling regard to Judge Piperno's opportunity to assess the credibility of the witnesses.

A lynchpin for Judge Piperno's credibility findings is that Officer Biazzo saw Mr. Campbell run a red light. However, a fair reading of the record casts substantial doubt upon Officer Biazzo's credibility.

For example, if Officer Biazzo was really telling the truth when he testified that Mr. Campbell ran a red light - that being the basis the State asserts to justify the stop, why then was no summons issued by Officer Biazzo, Patrolman Horcher or anyone else charging Mr. Campbell with a violation of N.J.S.A. 39:4-105 (proceeding through a red light)? One would expect that the motor vehicle violation that is the alleged predicate for a motor vehicle stop would at least be charged, if an officer really observed that violation occur.

And if, as Officer Biazzo first testified, Mr. Campbell struck Biazzo's car as he passed it, why didn't Officer Biazzo, Patrolman Horcher or anyone else charge Mr. Campbell with failing to stop for an accident, in violation of N.J.S.A. 39:4-129a. The answer is simple. While Officer Biazzo testified Mr. Campbell struck his vehicle, he conceded that never happened.

Further, while Officer Biazzo testified that Mr. Campbell drove across a double yellow line while passing Biazzo's vehicle, why didn't he, Patrolman Horcher or anyone else issue Mr. Campbell a ticket for violating N.J.S.A. 39:4-86 (crossing a "no passing" line).

Further, there was no testimony by Office[r] Biazzo that in the course of following Mr. Campbell to the latter's house, that Mr. Campbell weaved, or drove erratically.

The trier of fact must judge and determine the believability, the credibility of the witnesses. In determining credibility in a de novo trial on the record, the trier of fact may consider whether a witness told the truth; did the witness know what she or he was talking about; how good and accurate was the witness'[s] recollection; was the witness accurate and correct in what she or he was saying; whether there were contradictions or changes in a witness'[s] testimony; whether a witness said one thing at one time and something different at another time; whether a witness made or gave any inconsistent statement or testimony; whether or not an inconsistent statement or discrepancy in a witness'[s] testimony involved a matter of importance, or whether it results from an innocent mistake or willful lie; the extent to which a witness was either corroborated or contradicted, supported or discredited by other evidence; the reasonableness or unreasonableness of a witness'[s] trial testimony; the witness'[s] ability to see, know or hear the things she or he testified to; the quality of the witness'[s] memory; whether a witness has an interest in the outcome, or any motive, bias or prejudice; and how reasonable was a witness'[s] testimony when considered in the light of other evidence the trier of fact does believe. Common sense should be used in evaluating a witness'[s] testimony. If a witness said something but did not make sense, the trier of fact has the right to reject that testimony. If on the other hand, what a witness said seems reasonable and logical, the trier of fact has the right to accept that testimony. Finally, the trier of fact may believe all of a witness'[s] testimony, or only part of it, or none of it.

Applying the principles regarding assessment of a witness'[s] credibility, I find that substantial and serious inconsistencies and critical credibility issues are raised in Officer Biazzo's testimony. If, Officer Biazzo forfeited his opportunity for recreational activity at Bryson's Pub to pursue Mr. Campbell for running a red light, why was there no citation issued for that alleged event? There is no explanation in the record for not issuing a "red light" violation citation. Nor was there any improper passing citation issued.

Accordingly, I find that Officer Biazzo's testimony that he saw Mr. Campbell run a red light - that being the basis for the stop, is not credible.

I find Mr. Campbell's testimony credible. There is no credible indication that he ran a red light, or otherwise drove unlawfully.

Accordingly, since the State has not proven by credible evidence that Officer Biazzo had a reasonable articulable suspicion that Mr. Campbell ran a red light or committed any other motor vehicle violation, defendant's motion to suppress is granted.

[Internal citations omitted.]

We have carefully reviewed the transcripts of the proceedings below. Although we might have arrived at a different conclusion than the trial judge if we were sitting de novo, we determine that the trial judge properly applied the standard of review for a de novo proceeding and reached a different conclusion than the municipal court judge did after making his own independent findings of fact and giving due, but not controlling, consideration to the municipal court judge's ability to assess credibility. State v. Johnson, supra, 42 N.J. at 157. The findings of the Law Division judge were reached on sufficient credible evidence in the record.

 
Affirmed.

(continued)

(continued)

11

A-4299-04T1

November 1, 2005