STATE OF NEW JERSEY v. STEVEN ZELENY

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1450-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN J. ZELENY,

Defendant-Appellant.

____________________________

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October 26, 2006

Argued October 4, 2006 - Decided

Before Judges R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. A-02-146.

Paul M. Selitto argued the cause for appellant.

Bradford Seabury, Assistant Prosecutor, argued the cause for respondent (Michael M. Rubbinaccio, Morris County Prosecutor; Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM
Defendant, Steven Zeleny, appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), after a trial de novo in the Law Division. We affirm.
On February 2, 2003, defendant was issued a summons for DWI, failure to maintain lanes, N.J.S.A. 39:4-88b, and for refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a, by Sergeant Geraci of the New Jersey State Police. Defendant filed a motion in the municipal court seeking to suppress evidence. The motion was heard in the Denville Township Municipal Court on May 22, 2003. After listening to testimony of Sergeant Geraci, Deborah Knight on behalf of defendant, and viewing the videotape made of the motor vehicle stop, Judge Miniman determined that "the State has met its burden, that there was probable cause for the motor vehicle stop. The probable cause was the weaving that occurred on three occasions over this period of time in violation of New Jersey statute 39:4-88B." In reaching his decision, the municipal court judge found the Sergeant's testimony: "to be absolutely credible and believable. He did not attempt to embellish his testimony."
After the denial of the motion, defendant entered a conditional guilty plea to the charge of DWI. Defendant was sentenced as a second offender to a two-year suspension of driving privileges, to forty-eight hours of detention at an approved intoxicated driver resource center, and was assessed appropriate fines and penalties. The remaining summonses were dismissed by the court.
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. On October 11, 2005, Judge Falcone rendered an oral decision denying the motion, concluding that Sergeant Geraci had a reasonable and articulable suspicion to stop the motor vehicle. The judge determined the Sergeant's testimony credible that he observed defendant weaving, stating: "and that, in fact, it did occur." After ruling on the motion, defendant was convicted of DWI, and the court imposed the same penalties as below. The court stayed the sentence pending disposition of this appeal.
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.), certif. denied, 95 N.J. 197 (1983). 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).
On appeal, defendant argues: "The State has not overcome its burden with regard to the warrantless search and the suppression motion should be granted." As below, defendant contends that "the videotape does not depict a vehicle . . . unable to maintain its lane of travel but instead one that has changed its lane and uses its signal to do so." Defendant asserts that "[b]y reviewing the totality of the circumstances of the videotape, it is clear that there is not a basis for the stop due to an inability to maintain one's lane of travel." We disagree.
The Fourth Amendment prohibits unreasonable searches and seizures by the Government, including investigatory stops of persons or vehicles, absent a showing of probable cause. United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740, 749 (2002). However, a limited exception for certain seizures of the person exists, if there is an articulable suspicion that a crime has been or is about to be committed. State v. Pineiro, 181 N.J. 13, 20 (2004). Such seizures are commonly called Terry stops, and [a] traffic stop is analogous to a Terry stop. United States v. Ruesga-Ramos, 815 F. Supp. 1393, 1397 (E.D. Wash. 1993) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334 (1984)). As such, "once [Patrolman Cavezza] activated his overhead lights and [defendant] pulled over, a stop took place." Id. at 1399. Accordingly, there must have been a reasonable, articulable suspicion that defendant was in violation of a law, in order to make that stop. State v. Golotta, 178 N.J. 205, 212-13 (2003); State v. Davis, 104 N.J. 490, 500 (1986). A reasonable, articulable suspicion is less than probable cause. Golotta, supra, 178 N.J. at 213; Davis, supra, 104 N.J. at 501.
Here, both the municipal court judge and the Law Division judge found Sergeant Geraci's testimony concerning defendant's weaving within the westbound lanes on Interstate Highway 80 credible. Although the videotape did not capture all of the observations testified to by Sergeant Geraci, we are satisfied that the issue concerning whether the trooper's testimony accurately reflected what he observed on the highway that evening is an issue of credibility. This court must defer to the trial court's findings of credibility because the trial courts are in a better position to observe the character and demeanor of witnesses. State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005). Further, deference is especially compelling where the "Municipal Court and the Superior Court 'have entered concurrent judgments on purely factual issues' . . . [and an appellant court should] not disturb those findings 'absent a very obvious and exceptional showing of error.'" Ibid. (quoting State v. Locurto, 157 N.J. 463, 474 (1999). Accordingly, we affirm.
Affirmed; and the stay of sentence imposed below is vacated.
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