STATE OF NEW JERSEY v. JAMES M. SPADA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2966-04T52966-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES M. SPADA,

Defendant-Appellant.

____________________________________________

 

Submitted May 3, 2006 - Decided May 22, 2006

Before Judges Conley and Weissbard.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, 22-09-04.

Debra Lynn Nicholson, attorney for appellant (Daniel A. Colfax, of counsel and on the brief).

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Robin M. Lawrie, Assistant Sussex County Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant was convicted of N.J.S.A. 39:4-50 (DWI). Although this was defendant's second such conviction, there were more than ten years between the first and second and, therefore, the fines, penalties and license revocation required for first offenders were imposed, pursuant to N.J.S.A. 39:4-50(a).

Defendant's primary argument below, and here, focused upon the validity of the initial automobile stop which resulted in the DWI arrest. In rejecting his argument that the officer lacked sufficient basis for the stop, the Law Division judge considered the police vehicle videotape capturing part of the officer's initial observations and the transcript of the municipal court hearing at which the arresting officer testified. In finding that the officer had a reasonable, articulable basis for the stop, the Law Division judge observed:

the videotape discloses . . . as the officer testified that [defendant] was having difficulty maintaining his lane.

If you look closely at the video, you will see before he even gets to the hash mark how close his vehicle comes to the center line, the double solid center line of the roadway. Then veers over to the right, and then crosses the hash mark.

The videotape which we, too, have viewed, in conjunction with the officer's testimony, which both the municipal judge and the Law Division judge found credible, led the Law Division judge to accept the officer's testimony that he stopped defendant's vehicle because of its erratic operation, i.e., weaving. We have no basis for interfering with those factual findings and conclusions. E.g. State v. Locurto, 157 N.J. 463, 472-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964).

Nonetheless, on appeal, defendant contends:

POINT I: THE COURT ERRED IN [AS]SIGNING, SUA SPONTE, THE "COMMUNITY CARE TAKING" STANDARD TO THE FACTS IN THIS CASE WHEN NOT ADVANCED BY THE STATE BELOW AND, IN THE ALTERNATIVE, THE "COMMUNITY CARE TAKING" STANDARD DOES NOT APPLY IN THIS CASE.

POINT II: COURT BELOW ERRED IN FINDING "PROBABLE CAUSE" FOR THE INITIATION OF THE STOP IN THIS MATTER AND FAILED TO EVALUATE/GRANT APPROPRIATE WEIGHT TO WITNESS TESTIMONY CREDIBILITY IN LIGHT OF OBJECTIVE TESTIMONY/EVIDENCE.

We have considered these contentions in light of the record and applicable law. We are convinced they are of insufficient merit to require further opinion. R. 2:11-3(e)(1)(A),(E).

We add only the following brief comments. Although defendant contends in point II that probable cause did not exist for the initial stop, what was required here was a reasonable and articulable suspicion of a motor vehicle infraction. State v. Locurto, supra, 157 N.J. at 470; State v. Cerefice, 335 N.J. Super. 374, 384 n.4 (App. Div. 2000); State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997). The officer's observations of the vehicle's lane drifting was sufficient basis for the stop. State v. Smith, supra, 306 N.J. Super. at 380 (lane drifting); State v. Cerefice, supra, 335 N.J. Super. at 384 n.4 (same). See N.J.S.A. 39:4-88(b); N.J.S.A. 39:4-97. No other basis for the stop, such as community caretaking, therefore, was necessary.

Affirmed.

 

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A-2966-04T5

May 22, 2006