STATE OF NEW JERSEY v. JAMES C. MOREY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3783-04T13783-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES C. MOREY,

Defendant-Appellant.

 

Argued January 25, 2006 - Decided February 6, 2006

Before Judges Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-139.

Theodore D. Parsons argued the cause for appellant (Parsons & Nardelli, attorneys; James M. Nardelli, of counsel and on the brief).

Mark P. Stalford, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mr. Stalford, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress in Highlands Municipal Court, defendant pleaded guilty to driving while intoxicated, a violation of N.J.S.A. 39:4-50. The court imposed appropriate fines, court costs, and surcharges. The judge also suspended defendant's driving privileges for three months and required that he serve twelve hours at the Intoxicated Driver Resource Center. Defendant appealed to the Law Division, which also denied his suppression motion. The Law Division stayed defendant's fines and penalties pending a decision by this court. We affirm and vacate the stay.

The municipal court conducted a plenary hearing on defendant's suppression motion on December 7, 2004. These are the facts elicited at that hearing. On August 20, 2004, at approximately 10:20 p.m., defendant was operating his vehicle along Bay Avenue in Atlantic Highlands, approaching the intersection of Bay Avenue and Water Witch Avenue. Highlands Police Department Patrolman George Ruth was driving his vehicle approximately fifty to seventy-five feet behind defendant on Bay Avenue. Defendant claimed he observed a car, which turned out to be Patrolman Ruth's car, "several car lengths" behind him.

After following defendant for approximately one block, Patrolman Ruth saw defendant make an abrupt left turn onto Water Witch Avenue without using his turn signal. Ruth stated that, "[i]t was a quick turn, not turning directly into the lane that he was supposed to turn. He cut the intersection a little close." He followed defendant for about one block on Water Witch before activating his emergency overhead lights, signaling defendant to pull over. Ruth took this action based on defendant's failure to signal and his deviation from the proper path of the turn. While in the process of pulling over, defendant's front right tire went up onto the curb for a matter of seconds before coming to rest on the street.

Defendant conceded that he did not use his left turn signal because he "didn't think there was anybody to signal to." He saw no traffic coming towards him on Bay Avenue or from the left on Water Witch Avenue. He acknowledged, however, that he did observe the officer's car behind him; when the officer activated his emergency overhead lights, defendant hit the curb when he pulled over to the right to get out of the officer's way. He was trying to give the police officer as much room as possible to pass him.

Following an investigatory stop for what the officer believed were violations of N.J.S.A. 39:4-96, reckless driving, and N.J.S.A. 39:4-126, failure to activate a turn signal, the officer arrested defendant and charged him with driving while intoxicated. No dispute exists that if the stop was legal, the arrest was also.

We first address whether Officer Ruth had a reasonable and articulable suspicion that a motor vehicle violation had occurred. If he did, his investigatory stop and detention of defendant's vehicle was justified. State v. Murphy, 238 N.J. Super. 546, 554 (App. Div. 1990). In other words, if the officer had a reasonable and articulable suspicion that defendant violated either N.J.S.A. 39:4-126 or N.J.S.A. 39:4-96, his investigatory stop was valid.

N.J.S.A. 39:4-126 says, in pertinent part, "[n]o person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement." It is not necessary that the State establish that the turn actually affected traffic. State v. Williamson, 138 N.J. 302, 304 (1994). It is only necessary that "[m]otorists in the vicinity whose movements may be affected must be made aware of a driver's intentions." Ibid. Other traffic as defined in the statute may include the officer's vehicle. Ibid. "The language may affect traffic implies that traffic that may be affected is fairly close and visible, and that the signal need not be dictated solely by concerns of safety and accident avoidance." Ibid.

Here, these criteria were met. Officer Ruth followed defendant's vehicle for about a block, and observed him make an abrupt turn without activating his turn signal. The officer was several car lengths, or fifty to seventy-five feet, behind defendant at the time. Each vehicle was visible to the other. The operation of the officer's vehicle may therefore have been affected by defendant's failure to signal before turning. It was not necessary for purposes of the stop that the evidence could convict defendant of the charged motor vehicle offense. See ibid.

Defendant claims Officer Ruth acted under a mistaken understanding of N.J.S.A. 39:4-126; he asserts that Officer Ruth was unaware that the statute required that other traffic might be affected by the turn before a violation could be found. Defendant relies upon State v. Puzio, 379 N.J. Super. 378, 383 (App. Div. 2005), where we stated that when "an officer mistakenly believes that driving conduct constitutes a violation of the law, but in actuality it does not, no objectively reasonable basis exists upon which to justify a vehicle stop." While that may be true, the record does not contain evidence that Officer Ruth believed defendant could be convicted of N.J.S.A. 39:4-126 simply by failing to activate his turn signal. Defendant has not established that the officer was unaware that to convict defendant of failing to signal, the statute required that other traffic could be affected by defendant's vehicle's movement. Defendant's arguments to the contrary are no more than empty assertions.

Because we have determined that Officer Ruth had a reasonable and articulable suspicion that defendant violated N.J.S.A. 39:4-126, we need not address whether his conduct gave Officer Ruth a reasonable and articulable suspicion to suspect that defendant violated the reckless driving statute, N.J.S.A. 39:4-96.

We affirm the Law Division's February 25, 2005 order. We vacate the stay and direct that defendant immediately surrender his driver's license to the Highlands Municipal Court and comply with the remaining terms and conditions of the order.

 
Affirmed.

(continued)

(continued)

6

A-3783-04T1

February 6, 2006