STATE OF NEW JERSEY v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0398-05T50398-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN DIAZ,

Defendant-Appellant.

_________________________________

 

Argued October 5, 2006 - Decided October 27, 2006

Before Judges Wefing and Yannotti.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

No. 001-09-05.

Amy E. Lefkowitz argued the cause for

appellant (Martin P. Geisler, attorney;

Curt J. Geisler, on the brief).

Brandy B. Galler, Assistant Bergen County

Prosecutor, argued the cause for respondent

(John L. Molinelli, Prosecutor, attorney;

Ms. Galler, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order entered by the trial court following a trial de novo in which he was found guilty of driving while intoxicated, N.J.S.A. 39:4-50, and driving while his license was suspended, N.J.S.A. 39:3-40. Defendant was sentenced to one hundred eighty days incarceration in the Bergen County Jail, and his driver's license was suspended for ten years. Appropriate fines and assessments were imposed. The trial court denied defendant's motion for a stay. After reviewing the record in light of the arguments advanced on appeal, we affirm.

Defendant makes one argument on appeal:

THE MUNICIPAL COURT AND LAW DIVISION JUDGES ERRED IN DENYING THE MOTION TO DISMISS AS THERE WAS NO ARTICULABLE SUSPICION FOR THE STOP/SEIZURE OF DEFENDANT'S VEHICLE AS THE BASIS FOR THE STOP/SEIZURE WAS AN INVALID "NO TURN ON RED" SIGN; DEFENDANT'S FOURTH AMENDMENT AND STATE CONSTITUTIONAL RIGHTS WERE VIOLATED MANDATING DISMISSAL OF EACH SUMMONS.

Defendant was driving in Saddle Brook on January 1, 2005, when he was stopped by Officer David DeGennaro who observed defendant making a right turn in the face of a red traffic light; there was a sign posted at the intersection prohibiting such turns. After Officer DeGennaro approached defendant's vehicle, he determined that defendant was intoxicated. He also learned that defendant's driver's license had been suspended. Officer DeGennaro issued the appropriate summonses, as well as one for making an illegal right turn.

Defendant's counsel investigated and learned that Saddle Brook had not received authorization from the Commissioner of the Department of Transportation to post a sign at that intersection prohibiting right turns when the traffic signal was red. Based upon that discovery, defendant was found not guilty of making an illegal right turn. He was, however, convicted as we noted earlier of driving while intoxicated and driving while his driver's license was suspended.

On appeal, defendant repeats to us the argument he presented to the municipal court and to the Law Division: that the town's failure to secure authorization for the "No Turn on Red" sign invalidated Officer DeGennaro's subsequent discovery of defendant's intoxicated state and lack of a driver's license.

The record is devoid of any evidence that the officer or the municipality had any reason to question the validity of the posted sign. Defendant proceeded through a facially valid traffic sign. We consider defendant's argument that the stop was rendered invalid by the subsequent discovery of the invalidity of the sign to be without substantive merit. R. 2:11-3(e)(2).

Defendant's convictions are affirmed.

 

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A-0398-05T5

October 27, 2006