STATE OF NEW JERSEY v. JAMES HOEY

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4726-04T54726-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES HOEY,

Defendant-Appellant.

__________________________________

 

Submitted December 21, 2005 - Decided February 8, 2006

Before Judges Fall and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. 95-04.

Spadaccini Main, attorneys for appellant (Kevin H. Main, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Louis F. D'Onofrio, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellant James Hoey was arrested and charged with driving while under the influence of alcohol on July 3, 2004. He asserts that the state trooper's questions regarding how Hoey got to the rest stop on Interstate 295 and how he intended to leave it violated the Fifth Amendment because he was not given his Miranda rights. In addition to contending that these statements should have been excluded, Hoey contends that the evidence, with or without his statements to the state trooper, was insufficient to find beyond a reasonable doubt that he was driving while intoxicated (DWI).

On July 3, 2004, defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50. He was convicted of that offense in Springfield Township Municipal Court on October 26, 2004. As a third offender, the municipal court judge suspended defendant's driver's license for a period of ten years and imposed a term of imprisonment of one hundred and eighty days. Defendant was also fined and court courts were assessed. After a trial de novo in the Law Division on April 1, 2005, on the record below, the court found defendant guilty and imposed the same sentence that had been given in the municipal court.

Prior to his trial in municipal court, defendant moved for exclusion of all statements given by him to the investigating officer and also contested the issue of his "operation" of the subject vehicle. The municipal court judge conducted an evidentiary hearing on September 28, 2004, and issued a decision on October 12, 2004, denying defendant's motion. Specifically, the court framed the issue as to "whether the questioning of the defendant, when he exited the port-o-john, constituted . . . 'custodial interrogation' for purposes of the Miranda rule." After considering the testimony, the judge concluded that the circumstances

did not constitute a custodial investigation that required Miranda warnings to be given. I find that the defendant was not under arrest, the defendant was not in custody at that time, within the meaning of the case law surrounding motor vehicle matters, and I further find that there was no obligation on the part of Trooper Duckett to advise the defendant of Miranda warnings.

Trooper Anthony Duckett testified that on July 3, 2004, at approximately 2:18 a.m., he encountered defendant at the rest area on Route 295, northbound side, in Springfield Township, when doing a property check at that location. He explained that a property check involves determining whether there are any disabled vehicles, and that everything at the rest area is fine. When making the check, he observed a pick-up truck parked in a handicapped spot. He saw that the vehicle was empty, the engine was not running, and the driver-side door had been left ajar. Trooper Duckett stated he walked around the rest area's building to where there were some "Port-O-Bobs." As he was passing them, defendant emerged from one of the Port-O-Bobs "and nearly fell into me as he came out[.]" He explained that defendant "staggered and nearly fell into [him] and [he] . . . had to put [his] hands out to catch him as he came out." Trooper Duckett testified that defendant's eyes were bloodshot and watery and he detected an odor of alcohol.

Trooper Duckett stated he inquired of defendant as to whether he had been drinking, to which defendant replied in the affirmative. He asked defendant which vehicle was his, to which defendant pointed to the pick-up truck. At that point, Trooper Duckett activated the video camera in his vehicle "[b]ecause [he] was going to ask the defendant several questions."

After the court's denial of the motion to suppress, defense counsel stipulated that the testimony of Trooper Duckett at the suppression hearing could constitute a portion of his trial testimony. Trooper Duckett testified further that he administered field sobriety tests to defendant, which defendant did not perform satisfactorily. At that point, defense counsel stipulated to defendant being under the influence of alcohol.

Defendant testified that he had not been driving the vehicle, and that two other people, whom he identified as Grace Meisner, who cuts his hair, and her mother Barbara DeRitis, who owns the salon, drove him in his truck to the rest area so that he could be picked up there by his girlfriend. Defendant, Meisner and DeRitis were all at a bar known as Canals, although they had not gone there together. He stated he requested the ride to the rest stop because he was too drunk to drive.

Barbara DeRitis testified that defendant asked her to drive him home in his truck. She stated that while driving him home, he requested to be left at the rest stop. DeRitis stated she pulled into the rest stop and watched while defendant telephoned his girlfriend, Angela Bearint, she spoke with Angela, then she got into Meisner's vehicle and left defendant there.

Bearint testified that she had been dating defendant for about six months prior to July 3, 2004. She stated she was awakened from her sleep that date at about 2:00 a.m. by a call from defendant asking her to pick him up at a rest stop on Route 295. She testified that she also spoke with a woman by the name of Grace or Barbara. Bearint testified she got up, dressed and then drove to the rest area. She stated when she got there neither defendant nor his vehicle was there, so she drove to defendant's house, but he was not there either.

Trooper Duckett was re-called, and testified that defendant never mentioned Meisner, DeRitis, Bearint or being dropped off at the rest stop. Trooper Duckett stated he waited with defendant at the rest stop approximately fifteen minutes before a tow truck came and towed defendant's vehicle.

In rendering his decision, the municipal court judge credited Trooper Duckett's testimony, and found that the testimony of defendant and his witnesses was not credible. The judge also found sufficient circumstantial evidence to support the conclusion, beyond a reasonable doubt, that defendant had been operating his vehicle, including the fact that the vehicle's keys were found on defendant's person.

On appeal, the matter was heard de novo in the Law Division before Judge Schlosser. The judge first concluded that at the time of Trooper Duckett's initial questions defendant was not in custody. The answers to those questions were thereby admissible. The judge also found the testimony of defendant, DeRitis, and Bearint not to be credible, and determined from the evidence that defendant had in fact driven his vehicle to the rest area. That he was under the influence of alcohol was stipulated.

Hoey argues that Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) and State v. Ebert, 377 N.J. Super. 1 (App. Div. 2005), are factually distinguishable from this case and do not justify the admission of his statements. In Berkemer, the plaintiff sheriff asked the Supreme Court to carve an exception out of Miranda for misdemeanor traffic offenses. Id. at 429, 104 S. Ct. at 3145, 82 L. Ed. 2d at 328. The Supreme Court rejected this request, noting that the doctrinal complexities it would create would be Byzantine and would undermine the crucial advantage of the Miranda doctrine. Id. at 429-31, 104 S. Ct. at 3145, 82 L. Ed. 2d at 328. "Absent a compelling justification we surely would be unwilling so seriously to impair the simplicity and clarity of the holding of Miranda." Id. at 432, 104 S. Ct. at 3146, 82 L. Ed. 2d 330. The Supreme Court held that a person subject to custodial interrogation is entitled to the benefit of Miranda's procedural safeguards "regardless of the nature or severity of the offense of which he is suspected or for which he was arrested." Id. at 434, 104 S. Ct. at 3147, 82 L. Ed. 2d at 331.

Because the defendant had made statements before and after his formal arrest, the Supreme Court considered those statements separately. Id. at 434-35, 104 S. Ct. at 3147-48, 82 L. Ed. 2d at 331-32. The statements made after he was formally arrested and instructed to get inside the police car were inadmissible. Ibid. The Supreme Court then turned to the statements made prior to his formal arrest, which required the Court to consider "a second issue concerning the scope of our decision in Miranda: whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered 'custodial interrogation.'" Id. at 435, 104 S. Ct. at 3147, 82 L. Ed. 2d at 331.

The Supreme Court recognized that a traffic stop significantly curtails the "freedom of action" of the driver and passengers of the detained vehicle. Id. at 436, 104 S. Ct. at 3148, 82 L. Ed. 2d at 332. However, for Fifth Amendment purposes the issue was "whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." Id. at 437, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333. The Supreme Court observed first that a traffic stop is presumptively temporary and brief. Ibid. Second, during the typical traffic stop the motorist does not feel completely at the mercy of the police; rather, "the atmosphere surrounding an ordinary traffic stop is substantially less 'police dominated' than that surrounding the kinds of interrogation at issue in Miranda itself . . . ." Id. at 438-39, 104 S. Ct. at 3149-50, 82 L. Ed. 2d at 334.

The Court reasoned that the usual traffic stop is more akin to a Terry stop, which permits an officer to ask a detainee a moderate number of questions to obtain information confirming or dispelling the officer's suspicions. Id. at 439, 104 S. Ct. at 3150, 82 L. Ed. 2d at 334. The detainee is not obliged to respond, and if no response is given, the detainee must be released. Ibid. Because Miranda does not apply to Terry stops, and the similarly noncoercive aspect of ordinary traffic stops is similar to Terry stops, "persons temporarily detained pursuant to [traffic] stops are not 'in custody' for the purposes of Miranda." Id. at 440, 104 S. Ct. at 3150, 82 L. Ed. 2d at 334-5.

It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a "degree associated with formal arrest." If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him "in custody" for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda.

[Ibid. (citations omitted).]

The Supreme Court rejected McCarty's contention that the initial stop rendered him "in custody." Id. at 441, 104 S. Ct. at 3151, 82 L. Ed. 2d at 335-36. Thereafter, he was not subjected to restraints comparable to those associated with formal arrest. Ibid. Only a short period of time elapsed between the stop and the arrest. Ibid. During that interval he was not informed that his detention would not be temporary.

From aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.

[Id. at 442, 104 S. Ct. at 3151, 82 L. Ed. 2d at 336.]

Hoey's effort to distinguish Berkemer is unpersuasive. He argues that a reasonable person in Hoey's circumstances would not feel that he or she was free to leave. The Berkemer Court expressly acknowledged that a detainee in a traffic stop would not feel that they were free to leave, but that such a "feeling" would not trigger Miranda warnings any more than a Terry stop would. Thus, his distinction is unavailing. He is correct in pointing out that the Supreme Court did "not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop" and thus trigger the duty to inform the detainee of his Miranda rights. Id. at 439, n.29, 104 S. Ct. at 3150, 82 L. Ed. 2d at 334. He argues that in this case the bounds were exceeded. We disagree.

The state trooper did not have probable cause to arrest the inebriated Hoey until such time as he established probable cause to believe that he drove to the rest stop or intended to drive away from it, at which point he was arrested and given his Miranda warnings. There is nothing about this traffic stop that distinguishes it from the "ordinary traffic stop" that the Berkemer Court found did not trigger a Miranda duty to inform the suspect of his or her constitutional rights.

Hoey also seeks to distinguish himself from the facts in Ebert, supra, 377 N.J. Super. 1, by noting that he did not call the police, as did Ebert. That distinction is irrelevant. We found there that the officer was conducting an initial investigation when he was called to the scene because Ebert believed that her car had been stolen. When the police arrived, she had her car keys in her hand. Although the officer suspected that she had been drinking when he smelled alcohol on her breath during his conversation with her, he did not place her under arrest until after her car was located occupying two spaces, he observed that she was having difficulty walking, and he administered a field sobriety test. Id. at 9-10. As we noted, the cases in New Jersey have held that a DWI suspect is not entitled to Miranda warnings prior to administration of field sobriety tests. Id. at 9. We found that Miranda did not apply to the preliminary questions asked by the officer and that her statements that she had been drinking, that she was drunk, and that she had driven to the parking lot intending to sleep it off, were all admissible.

The focus of a court in deciding whether Miranda warnings should have been given is on the restraints and whether they were comparable to those associated with formal arrest, not upon who called the police. The officer obviously had probable cause to believe that Hoey was under the influence of alcohol, but that is only one element of a DWI offense. The other is operation of the vehicle. His questions regarding operation were nothing more than an initial investigation to determine if Hoey was a passenger in a car with a sober driver, whether he became inebriated at the rest stop, whether he had arrived at the scene by operating a vehicle while he was under the influence of alcohol, or whether he intended to leave the rest stop by driving his truck. The obligation to "Mirandize" Hoey was not triggered by this questioning.

With respect to the sufficiency of the evidence,

The issue in the Appellate Division is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964). But like the Law Division, the Appellate Division is not in a good position to judge credibility, and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 470 (1999). It may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1998). It should defer to the trial court's credibility findings. State v. Cerefice, supra, 335 N.J. Super. at 383.

 
Applying that scope of review here, we conclude that there was sufficient credible evidence to uphold the conviction of driving while intoxicated.

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

(continued)

(continued)

13

A-4726-04T5

February 8, 2006

 


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