STATE OF NEW JERSEY v. ALBERT BELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2603-05T12603-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT BELL,

Defendant-Appellant.

_______________________________________

 

Submitted October 11, 2006 - Decided November 9, 2006

Before Judges Weissbard and Lihotz.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

Municipal Appeal No. 4584.

Fusco & Macaluso, attorneys for appellant

(Paulette L. Pitt, of counsel and on the

brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Steven Brizek, Senior

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Albert Bell appeals from his conviction, after a trial de novo in the Law Division, of driving while intoxicated, N.J.S.A. 39:4-50 (DWI). After denial of his motion to suppress the fruits of his arrest on the basis that the stop of his vehicle was unlawful, defendant entered into a conditional plea of guilty. Other charges emanating from his arrest were dismissed as part of the plea bargain. The municipal court judge sentenced defendant, as a third-time DWI offender, to ninety days in an in-patient alcohol abuse program, ninety days in county jail, and a ten-year license suspension. Appropriate fines, penalties and assessments were also imposed. On de novo appeal, Judge Rohde likewise denied defendant's motion to suppress and imposed the same penalties as in the municipal court. We affirm.

The facts are simple. At approximately 6:30 p.m. on April 17, 2005, Officer Vandalinda of the West Milford Police Department was driving north on Route 23, near the intersection of Union Valley Road. Vandalinda observed the car operated by defendant make a left turn onto Route 23 from Union Valley Road, and proceed into a Shell gas station. On Union Valley Road, a "No Left Turn" sign and a "One Way" sign alert drivers that they may only make a right turn onto Route 23 and, therefore, may not cross the highway. Additionally, a double-white line on Route 23 signals it may not be crossed.

After observing defendant, Vandalinda followed the vehicle into the gas station, and issued the following citations: improper crossing of a divided highway, N.J.S.A. 39:4-82.1; driving while intoxicated, N.J.S.A. 39:4-50; refusal to submit to chemical tests, N.J.S.A. 39:50.4(a); and driving while intoxicated with a minor as a passenger, N.J.S.A. 39:4-50.15. No summons was issued for disregarding the traffic control devices prohibiting a left turn.

Defendant subsequently moved to suppress Vandalinda's testimony establishing evidence of DWI, arguing the motor vehicle stop was unlawful. In the municipal court, the State conceded that there was no basis to support the summons for improper crossing of a divided highway. Nonetheless, the State argued, and the municipal judge found, that Vandalinda had probable cause to stop defendant's vehicle based on his observations. As a result, defendant's motion was denied. As noted, defendant then entered into a conditional guilty plea to DWI. Pursuant to the terms of the plea agreement, the charge of refusal to submit to chemical tests was dismissed. The remaining charges, driving while intoxicated with a minor and improper crossing of a divided highway, were dismissed for failure of proof.

On December 16, 2005, argument was heard on defendant's de novo appeal. Defendant's motion to suppress was denied as Judge Rohde found the stop lawful for the same reasons articulated by the municipal court judge.

Defendant's sole argument on appeal is that it was error to deny his motion to suppress, relying on our recent decision in State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005). In Puzio, the police officer mistakenly believed that the defendant was driving a commercial vehicle without a placard displaying the driver's name and business address, in violation of N.J.S.A. 39:4-46a. Id. at 380. Puzio was stopped and issued a summons for DWI and violation of N.J.S.A. 39:4-46a. At trial, Puzio argued that evidence establishing his guilt of DWI should be suppressed because the officer's mistaken belief that N.J.S.A. 39:4-46a was violated rendered the stop unlawful. Both the municipal court and Law Division had denied the motion to suppress, determining that the officer's "good faith belief" that the statute was violated was enough to justify the stop. Puzio, supra, 379 N.J. Super. at 381. We reversed, concluding the stop was "based on an entirely erroneous reading of the statute," id. at 382, and therefore no probable cause existed to justify it. Id. at 383.

Here, defendant argues, like Puzio, that he did not commit the offense for which he was cited and therefore there was no probable cause to justify the stop. The State counters by arguing that Puzio is "materially" distinguishable because:

[A]side from his legally erroneous belief that the defendant violated N.J.S.A. 39:4-82.1, Officer Vandalinda had a legally sound and objectively reasonable basis for believing that the defendant had also disregarded a traffic control device that prohibited him from turning left onto Route 23, North, from Union Valley Road . . . [justifying] stopping the defendant in order to pursue the investigation that led to the discovery of the evidence substantiating the DWI charge.

We agree with the State. In Puzio, there was no justification for the stop other than the arresting officer's misunderstanding of the statute. In contrast, Vandalinda observed defendant commit a motor vehicle violation. It is this observation of the motor vehicle violation, not the incorrectly cited statute, that provided a basis for the stop. As Judge Rohde stated:

I think that there's a distinction [with Puzio] here, and I think the distinction favors the State's argument. The fact of the matter is that based upon his observations, the police officer had probable cause to stop the vehicle, and I find that to be the case here. He did cite the wrong statute, but based upon his own observations, he had probable cause.

Although the judge found probable cause to justify the stop, even less would have been sufficient. An officer need only have "an articulable and reasonable suspicion that the driver has committed a motor vehicle violation." Puzio, supra, 379 N.J. Super. at 381 (citations omitted). Here, there is sufficient credible evidence in the record to uphold the Law Division's determination that defendant likely committed a motor vehicle violation, thereby justifying the stop. State v. Avena, 281 N.J. Super. 327, 333-34 (App. Div. 1995).

Affirmed.

 

The State moved for dismissal stating the evidential problem was that the alleged minor was not identified by name or address in the police report.

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A-2603-05T1

November 9, 2006